will furnish evidence which will aid in augh, 37 Hun, 232, that a party such purpose the application should be

cannot be examined under Art. 1, denied.

tit. 3, Chap. 9, Code Civ. Pro., exAppeal from order permitting cept for the purpose of proving plaintiffs to inspect the books and the applicant's cause of action or accounts of defendant's assignor. defense. The application for the order was That there seems to be no excuse made after issue joined. The in this case for the omission of papers used on the application did definite allegations, as plaintiff's not allege that the books would

books would counsel has been permitted to exfurnish evidence which would aid amine the books for two days, and plaintiffs to establish their cause defendant offered a further exof action, but the order seems to amination and to permit them to be sought because defendant re- be examined by an expert to be fused to permit an examination agreed upon by the parties. by an expert unknown to him and The view taken of the merits of not named by plaintiffs.

this appeal renders it unnecessary Frank H. Hiscock, for respts. to consider whether Supreme B. T. Wright, for applt.

Court Rule 37 was a bar to grantHeld, That the allegations in the ing this order upon an order to moving papers are insufficient to

show cause returnable out of the support the order. It has been judicial district in which the twice held that a discovery may venue of the action is laid. be had after issue joined, under Order reversed, with costs and

rt. 4, tit. 6, Chap. 8, Code Civ. disbursements, and motion denied, Pro., and for grounds other than with costs, without prejudice to a those specified in the 14th

new application on payment of rule of the Supreme Court. 2 L.

2 L. costs.
Bull., 67; 62 How., 114 ; 12 W'. Opinion by Follett, J.; Hardin,
Dig., 573 ; 1 Civ. Pro., 109; 12 W. P.J.; and Boardman, J., concur.
Dig., 13.

An application after issue joined must show that the discovery is


Le sought to aid the applicant to prove his cause of action or his defense.

N. Y. SUPREME COURT. GENERAL 20 W. Dig., 85; 2 Civ. Pro., 76;

16 J. & S., 162 ; 17 id., 385; 52 The Robinson Consolidated Min-
How., 148; 2 Wait's Pr., 531; | ing Co., respt., v. Wm. H. Craig
Baylies' Trial Pr., 120; Hare on et al., applts.
Discovery, 3d Am, ed., 197. The

Decided Dec. 31, 1886.
General Term of the Supreme
Court, of the Superior Court, and In an action against sureties for rent, to re-
of the Court of Common Pleas, are

duce the amount claimed, defendants

offered in evidence a receipt for a portion in accord on this question. This

of said rent signed by one C., plaintiff's court held in Adams v Cavan

agent at the mines, and, to prove the sig




nature to such receipt, defendants called not been paid a clause was inserted the former vice-president of plaintiff, in the second lease that its execuwho testified that he had never seen C.

tion should not change or impair write, but had seen his signature annexed to various communications sent by him

the covenants contained in the to the company in the ordinary course of previous one, “it being understood its business upon which the company that the royalties in arrears now had arted and had thus acquired a gen

amount to $10,933.20,” and the eral knowledge of his handwriting, and that the signature to the receipt offered

contract of suretyship executed by in evidence was the signature of C. to

defendants contained a provision the best of witness' knowledge. Held,

knowledge. Held, that "the execution of the above Sufficient to allow the receipt to be read

lease and this our guarantee therein evidence.

to shall not be held to change or Plaintiff leased certain mining property to G., the rent reserved being royalties on

impair our liability to pay the balthe amount of ore removed from the ance of the royalties now due and mines. Defendants became G.'s sureties owing by G. under the former for the payment of this rent. After the

lease as recited in the annexed termination of this lease plaintiff made another to G. upon which defendants lease and as previously guaranteed were his sureties as before. At the time by us.” This action was brought of the execution of this second lease G.'s to recover from the sureties said rent under the former one had not been amount of $10,933.20 together with entirely paid and a provision was inserted in this second lease that it was “under

the royalties unpaid by G. since stood that the royalties in arrears now

the execution of the second lease. amount to $10,933.20,” and a clause was Defendants denied that the amount also inserted in the contract of suretyship claimed was due, and to prove signed by defendant “ that the execution

that at the time of the execution of the above lease and this our guaranty thereto shall not be held to change or

of the second lease G. did not owe impair our liability to pay the balance of as much as $10,933.20 they offered the royalties now due and owing by G. un- in evidence a receipt for der the former lease as recited in the annexed lease and as previously guaranteed signed by one c., the agent of by us.” Held, That the sureties were not

plaintiff at the mines. To prove precluded in an action against them from the signature of C. they called the showing that at the time of the execution

former vice-president of plaintiff, of the second lease G. did not owe as

who testified that he did not know much as $10,933.20.

C. personally, and had never seen Plaintiff leased certain mining him write, but that he had seen property owned by it to one G., his signature annexed to commureserving as rent therefor a cer- nications sent by him to plaintiff tain amount of royalties upon the accompanying remittances of royore removed by G. from the mines. alties collected by him from G., Defendants guaranteed the pay. and to various other communicament of this rent by G. After

After tions sent by him in the ordinary the termination of this lease course of business upon which plaintiff again leased the property plaintiff had acted, and had thus to G., and as at that time all the acquired a general knowledge of rent under the previous lease had his handwriting, and that the sig

Vol. 25–No. 22a.

nature to the receipt was that of again this sum of money if it had
C. to the best of witness' knowl. previously been paid, as the receipt
edge. This receipt was excluded, tended to prove the fact to be.
and the court directed a verdict for Judgment reversed.
plaintiff. Defendants appealed. Opinion by Daniels, J.; Brady,
N. P. Hinman, for applt.

J., concurs.
Edward S. Clinch, for respt.
Held, That the evidence which

was given was sufficient to entitle
defendants to have the receipt re-

N. Y. SUPREME COURT. GENERAL ceived and read upon the trial, for

TERM. FIFTH DEPT. it showed such a familiarity on Frank Moll, respt., v. Frank X. the part of the witness with the Foery et al., applts. handwriting of the agent whose

Decided Feb., 1887. name was attached to the receipt as to prove his signature. That it

Plaintiff contracted with defendants to re

move the surface earth from their quarry, is not necessary in order to prove

he to be paid when the work was coma person's handwriting that the plete. Defendants gave testimony tendwitness should have seen such per

ing to show that plaintiff intentionally son write, a sufficient familiarity

abandoned the work before it was com

pleted. Held, Error to refuse to charge with such handwriting for the

the jury that plaintiff could not recover purpose of proving it may be ac

payment under the contract unless quired by the inspection of authen- they found he had performed it as it tic documents of the description

was made. of those sent by C. to plaintiff. Appeal from judgment of CounGreenl. on Ev., 7th ed., $ 577 ; 19 ty Court entered on verdict. Johns., 134; 12 Wall., 317.

Action to recover for work done That defendants as sureties for under a special contract by which the payment of the royalties be plaintiff agreed for $200 to remove came bound only to the extent the surface earth from a portion that G., their principal, was in of defendants’ quarry, constituting default. That neither the lan- an area of 60 feet broad by 125 feet guage of the last lease nor of the long. Plaintiff claimed to have guaranty entered into by the sure fully performed the contract, but ties was designed to require any defendants gave testimony tend. more than this on their part, and ing to show that when plaintiff while it is true that the lease stated quit the work there was a part of a gross sum still in arrear from G. said area from three to five feet it was not designed by it to im- wide that had not been excavated; pose upon him the obligation to that defendants called plaintiff's pay more than he was owing, but attention to it and insisted that he merely to require payment from should excavate it, and he refused him of the sum that he was in ar- to do so. Defendants asked the rear to the company, and did not court to charge the jury that they obligate him or his sureties to pay must find that plaintiff has per

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formed his contract as it was made was injured which was extenbefore he can recover on the con- sively and notoriously used by the tract. The court declined.

public without any objection on William F. Rampe, for applts. the part of defendant, or any quesGeorge W. Hall, for respt. tion as to the right of all persons

Held, That defendants were en- so to use it. The judge charged titled to the instruction. By the the jury that it was a question for terms of the contract performance them to determine to what extent was to precede payment and was and in what manner the alley was a condition thereof. Plaintiff in

Plaintiff in used by the public; that if they tentionally abandoned the work, came to the conclusion that the leaving the contract unperformed right of passage was there exerin a substantial particular. 17 N. cised by the public as claimed by Y., 173.

plaintiff, notoriously and conGlaucius v. Black, 50 N. Y., 145; stantly, previous to and at the time Johnson v. De Peyster, id., 666; of the accident, then they were rePhillip v. Gallant, 62 id., 256, dis- quired to determine the amount of tinguished.

care and prudence defendant was Judgment reversed and new required to exercise in approachtrial ordered in County Court, ing and crossing the alley, and costs to abide event.

that then defendant, while not abOpinion by Smith, P.J.; Barker, solutely bound to ring a bell or Haight and Bradley, JJ., concur. blow a whistle, was bound to give

some notice and warning reason

able and proper under the circumRAILROADS. NEGLIGENCE.

stances in approaching the crossN. Y. COURT OF APPEALS. ing, and that it was for them to Byrne, respt., v. The N. Y. C. & determine whether such notice H. R. RR. Co., applt.

and warning were given. Decided Feb. 8, 1887.

Esek Cowen, for applt.

R. A. Parmenter, for respt. The court charged that it was for the jury to determine to what extent the alley in

Held, No error, the jury being question was used, and if they found it correctly charged as to the law by was used by the public constantly and the judge. 92 N. Y., 289; 41 id., , notoriously previous to the accident defendant was bound to give some proper

525; 66 id., 243; 101 id., 391. warning in approaching it, and it was for

Defendant's counsel requested the jury to determine whether such the court to charge that if the bell warning was given. Held, No error.

was rung as testified to by defendThis action was brought to re- ant's witnesses, that was a sufficover damages for injuries received cient warning of the approach of by plaintiff through the alleged the train, and that defendant was negligence of defendant. Upon not bound to give any other notice the trial there was evidence tend- or warning. The request was reing to show that there was an fused and an exception taken. alley at the place where plaintiff Held, No error.

Judgment of General Term, af- the testimony taken by the surrofirming judgment on verdict for gate. plaintiff, affirmed.

W. S. Logan and George Bliss, Opinion by Earl, J. All con

for applts. cur.

Henry L. Sprague and Theo. W.

Dwight, for respt. WILLS. EVIDENCE. ATTOR

Jas. J. Thompson, guardian ad

litem. NEYS.

Held, That S 835, Code Civ. Pro., N. Y. SUPREME COURT. GENERAL

was intended to do no more than TERM. FIRST DEPT.

clarify by codification the wellIn re probate will of Winifred known rule of the common law. Austin, deceased.

1 Throop's Code, notes to $ 835; 70

N. Y., 54 ; id., 38. That commuDecided Dec. 31, 1886.

nications to an attorney or solicAn attorney is not prohibited by $ 835, itor employed to prepare a will Code Civ. Pro., from testifying in sup- with reference to the will and its port of a will upon contested proceed: trusts are not privileged. 15 Juings for its probate as to what transpired between the testator and himself at the rist, 1117; 1 Ves. Jr., 342; 1 Mylne time of his employment by the former to & Craig, 312 ; 3 Wall., U. S., 199. prepare the will and during the process That it would be unfortunate for of its preparation and publication.

testators if the communications Appeal from decree of the surro- they make to counsel for the purgate of the city and county of N. pose of enabling the latter to draft Y. admitting the will and codicils their wills should be held to be so of Winifred Austin to probate. far within the provisions of the The probate of said instruments Code as to prevent their use on bewas resisted upon the ground that half of the executors to sustain they were made by the testatrix the wills. That the object of the under the pressure of undue influ- privilege is to make sacred that

One U., the counsel of tes- class of communications made by tatrix, was called as a witness by clients to attorneys or counsel for the proponents to show what took the purpose of enabling them to place when he was employed by give advice with a full and correct testatrix to prepare her will and knowledge relating to the transaccodicils, and during the process of tion upon which such advice is their preparation and publication, sought in suits and actions, civil which he superintended. His tes- and criminal, a disclosure of which timony was objected to as prohib- if allowed might be prejudicial to ited by SS 835-6, Code Civ. Pro., the client or his interests. That forbidding the disclosure of a com- if the construction of the statute munication made by a client to an claimed by the contestants were attorney in the course of the lat- allowed no will could be proved by ter's professional employment. | the attorney who drew it and The objection was overruled and supervised its publication, for he


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