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A. Yes. Q. Did you know who brought it there? A. I did not. Q. Did you have any idea who brought it there? A. What my ideas are is not the question; it is what I know. Q. Just answer the question. Did you have any idea who brought it there? A. You might have brought it there for all I know. Q. That is not what I ask you. Did you have any idea who brought it there? By the Court. Who did you suppose brought it there that morning? A. Why, anybody might have brought it there. By the Court. You supposed anybody brought it there? A. Why, certainly. Q. Who did you think brought it there? A. My inference would be that Anderson brought it there, but I did not know that he did. Q. Did you form some idea about what that was doing there, or who brought it there, when you stooped down to carry it out? A. I certainly knew that the water-closet had no business there. * * * Q. What did you suppose the plaintiff brought it there for? A. That is his business, and not mine. I don't know what he brought it there for. Q. Did you have any idea on that subject at all? Witness. Well, I appeal to the court if I ain to answer what my ideas are. Court. Yes, certainly. Q. Did you have any idea what he brought it there for? A. He might have had a great many purposes. By the Court. What was your idea that he brought it there for? A. At the morning call I had no idea in the excitement. I did not stop to ask what he wanted to do with it." It consequently appears to us that the plaintiff was there upon the premises making a change of the water-closets so that they would conform to the specifications attached to his contract, and that the defendant knew from what had been told him by the plumber Wedge on the Saturday before, and what he saw and heard on the morning in question, that such was the plaintiff's purpose and intent.

Was there, therefore, probable cause, which would justify the arrest? The trial court appears to have reached its conclusion upon a strict construction of the Code; for in dismissing the complaint the court says: “I think this constitutes an offense within the meaning of the section of the Code which has been called to my attention. If it had not been for that section, I should have held the other way." The section referred to provides as follows: "A person who willfully *** severs from the freehold of another, or of the people of the state, any produce thereof, or anything attached thereto, *** is punishable by imprisonment not exceeding six months, or a fine not exceeding two hundred and fifty dollars, or both." Pen. Code, § 640. This provision is not, however, to be construed to include persons who intentionally sever from the freehold with the knowledge and consent of the owner, or those who sever under a legal right. It was designed to meet the cases where a person willfully and maliciously severs from the freehold, without right, for the purpose and with the intent to injure

or destroy the property. In order, therefore, to convict the plaintiff under this section, it was necessary to show that he took out the closet that was in there without right so to do, and for the purpose of injuring or destroying the premises. His work had not been accepted by the owner, or by the defendant, the contractor. He had the right to enter the premises in a peaceable manner, and make his work conform to that required by the contract; and if this was his purpose and intent, and it was so understood by the defendant, there was no probable cause existing which justified his arrest. Payment of the balance under the contract had been refused. A suit had been commenced to recover such balance. In order to recover, it was important for the plaintiff to show that he had performed his work in accordance with the requirements of the contract. The plaintiff had the right to correct his work so that he could make good his claim, and establish his right to recover, in another action, if not in the one pending. The defendant sought to defeat him in the action pending, as is apparent from the answer interposed, in which it was charged, as we have seen, that the materials furnished were not according to the specifications, and that the work was not done according to the contract. There was a reason, therefore, why the defendant did not wish the closets changed while that action was pending. The plaintiff did not prosecute that action further, but allowed it to go down by not appearing on the adjourned day. Thereafter the defendant consented that the plaintiff might exchange the closets, which was done. We are therefore of the opinion that a question was presented which should have been submitted to the jury, and that the court erred in granting the motion to dismiss the complaint, and by refusing the plaintiff's request to go to the jury upon the question of probable cause and malice. The judgment should be reversed, and a new trial granted, with costs to abide the event.

BRADLEY, J., (dissenting.) The defendant was permitted to act on appearances; and if they were such as to furnish reasonable grounds of suspicion, supported by circumstances to warrant the belief of a cautiously prudent man that the plaintiff was guilty of the offense charged, he was justified in causing his arrest, although the plaintiff was innocent of the charge. The question whether or not there was any evidence tending to support the allegation of want of probable cause was for the court; and, if there was not, the complaint was properly dismissed; but if there was any evidence, or inference derivable from it, which would justify the conclusion of want of probable cause, the question was one of fact for the jury. Masten v. Deyo, 2 Wend. 424; Foshay v. Fergueson, 2 Denio, 617; Bulkeley v. Keteltas, 6 N. Y. 384; Besson v. Southard, 10 N. Y. 236; Cari v. Ayers, 53 N. Y. 14; Heyne

66

v. Blair, 62 N. Y. 19; Fagnan v. Knox, 66] at the time in question, or whether there N. Y. 525. The offense with which the was any evidence in support of that fact; for plaintiff was charged was within the statute if the defendant was at the time advised that which provides that "a person who willfully the plaintiff was not engaged in a criminal *** severs from the freehold of another, act, although there were appearances indior of the people of the state, any produce there- cating it, he was not justified in causing the of, or anything attached thereto, *** is arrest and prosecution of the plaintiff. Fagpunishable," etc. Pen. Code, § 640. The term nan v. Knox, 66 N. Y. 525. And if, from "willfully" is not defined by the statute. The what he observed and learned upon the occadefinition given to it by section 718 in the sion, he was not justified in entertaining the original act (Laws 1881, c. 676) was elimi- honest belief that the plaintiff was commitnated by amendment in 1882. Its meaning ting any crime, his prosecution was without is not an arbitrary one, applicable alike in all probable cause. 2 Greenl. Ev. § 455; Shafer its relations; but its import is dependent v. Loucks, 58 Barb. 426, and cases there cited; somewhat upon its connection, by which the Merriam v. Mitchell, 13 Me. 439; Grinnell purpose of its use is to be ascertained. This v. Stewart, 32 Barb. 544. I am inclined to provision of the Penal Code was intended to think there was evidence sufficient to require take the place of that of the prior statute, the submission of that question to the jury. which was that every person who should The defendant was a party to the contract willfully commit any trespass by "maliciously with the plaintiff; and when he went to the severing from the freehold any produce stable on that occasion, and before the arrest thereof, or anything attached thereto," should of the plaintiff, his attention was called to be guilty of a misdemeanor, etc. 2 Rev. St. the closet apparatus which the plaintiff dep. 693, § 15. The Code, as amended, I think, signed to substitute for the one before put in. was not intended to materially modify that The inference was permitted from all that provision of the Revised Statutes. The word may have been or was seen, and what ocwillfully" is common in criminal law, and curred, that the defendant was advised of or there its import is extended beyond the plain understood the purpose for which the plainmeaning of "intentionally" or "designedly," tiff had it there, and the use he was proceedand embraces within it a certain degree of ing to make of it in the work; and that, inmalice or purpose to do injury; and there is stead of willfully severing anything from the involved in the statutory offense the element freehold, he was proceeding to change the of criminal intent. Kilpatrick v. People, 5 apparatus referred to. The facts are so fully Denio, 278, 281; Wait v. Green, 5 Parker, referred to in the opinions of Judges POTTER Crim. R. 185; Com. v. Williams, 110 Mass. and HAIGHT that it is unnecessary to make 401; Com. v. Kneeland, 20 Pick. 206; 1 Bish. any further reference to them here. I think Crim. Law, § 428, p. 272. The conclusion a new trial should be granted. was therefore warranted that the plaintiff was guilty of no crime in what he did, but that he was acting in good faith to make the work which he had undertaken to perform, conform to the requirement of his contract. TISDALE V. DELAWARE & HUDSON CANAL It is true that he previously assumed to have completed his contract; but, since the closet was not such as by the specifications he had (Court of Appeals of New York, Second Divisagreed to put in, he had entered upon the premises, and was seeking to make the change in that respect, when he was arrested by the 1. In an action against a railroad company for direction of the defendant. The plaintiff's injuries to a passenger, when defendant in its anrelation to the transaction was different than swer denies information as to certain allegations in the complaint, and afterwards stipulates that it it would have been if he had not had the con- will admit its liability "for damages in consetract to do the plumbing. It was essential quence of the fall of the railroad bridge, ** * to his claim for service that he perform the thus narrowing the issues to the plaintiff's injury, work substantially as he had agreed to do it; proper for the plaintiff's attorney, in summing up, and the amount of damages suffered by her, "it is and the fact that he had before announced to read portions of the answer, and comment its completion did not deny to him the right thereon, as showing what facts were admitted. to seek the opportunity to correct any error hey. § 3251, for damages by way of costs for the de2. An application under Code Civil Proc. N. had made in the work, if it could be done lay caused by an appeal, will not be granted where without prejudice to the other party or owner the appeal presents debatable questions which of the property. The fact, however, that he had not been settled at the time it was brought. had entered by forcible means to do it was a circumstance, unexplained, which enabled the defendant to believe that he was unlawfully there, engaged in a criminal trespass, within the statute. But the question is whether a reasonably prudent or cautious man, under the circumstances, would have observed or been advised of the actual purpose of the work the plaintiff was engaged in

BROWN, J., concurs.

Co.1

ion. Oct. 29, 1889.)

(116 N. Y. 416)

TRIAL-READING PLEADINGS-COST OF APPEAL.

Y.

Appeal from supreme court, general term, third department.

Action for personal injuries, brought by Anna S. Tisdale against the Delaware & Hudson Canal Company. The plaintiff alleged in her complaint that in October, 1883, the defendant, a railroad corporation, oper

1 Affirming 42 Hun, 654, mem.

and, for aught that appears, they may have been moderate, fair, and harmless.

The object of pleadings is to define the issue between the parties; and, when an issue of fact is tried before a jury, they cannot appreciate the evidence as it is given, unless they know the nature of the issues to be decided. Hence it is customary and proper for counsel, in opening, to tell the jury what the issues are, as well as what they expect to prove. In some states the case is ordinarily opened by reading the pleadings. 1 Thomp. Trials, § 260. The pleadings are before the court, not as evidence, but to point out the

ated a railroad passing over a bridge at Fort Edward, N. Y.; that on the 22d of that month said bridge, through the negligence of the defendant, gave way as a train of its cars was passing over; that said train was thereby wrecked, and the plaintiff, a passenger thereon, was thrown therewith about 30 feet into the bed of the feeder below, and permanently injured. The defendant, by its verified answer, denied any knowledge or information sufficient to form a belief as to the following allegations of the complaint: "That plaintiff was a passenger on the cars of defendant October 22, 1883, or at any other time; that plaintiff was injured in the acci-object to which evidence is to be directed. dent at Fort Edward, October 22, 1883, or at any other time or place; that plaintiff was injured for life, suffered pain or anguish, or had her clothing damaged; that she has been put to expense, or will be, to cure herself of said alleged injuries." The defendant further denied, upon information and belief, "that it had been guilty of any carelessness or negligence in failing to build or maintain a bridge in a good and safe condition, and of strength sufficient to enable its cars and locomotives to pass over the same in safety, at Fort Edward, or elsewhere, and in allowing the same to become or remain in an unsafe, insecure, or dilapidated condition, or by reason of any act, omission, or thing whatso* ** that it has been guilty of any carelessness, negligence, breach of duty, or violation of agreement with or towards this plaintiff, or that plaintiff has been injured or damaged in any sum by reason of any fault of theirs." Before the commencement of the trial, the defendant stipulated in writing that it would "admit its liability to plaintiff for damages in consequence of the fall of the railroad bridge over the feeder at Fort Edward; thus narrowing the issues in this case to the plaintiff's injury, and the amount of damages suffered by her." Judg-are permitted to point out where they claim ment was rendered on verdict for the plaintiff, and defendant's motion for new trial was denied. The judgment and order were affirmed by the general term, and defendant appeals.

ever;

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VANN, J., (after stating the facts substantially as above.) Upon the trial of this action, the counsel for the plaintiff, while addressing the jury after the close of the evidence, was reading a portion of the answer, when the counsel for the defendant objected upon the ground that it was not in evidence, and was inadmissible and immaterial under the stipulation in the case. The court overruled the objection, and gave the defendant an exception. The plaintiff's counsel thereupon, by permission of the court, continued to read the answer, or portions thereof, to the jury, and also made comments upon it; the defendant duly excepting. The record before us does not disclose the nature of the comments made by counsel upon the answer,

While a party sometimes formally reads in evidence the pleading of his adversary, or some part thereof containing a distinct and unconditional admission, no legal advantage is gained thereby, as the admissions, properly so called, contained in an adverse pleading admit of no controversy, and require no proof. Paige v. Willet, 38 N. Y. 28; White v. Smith, 46 Ñ. Y. 418; Cook v. Barr, 44 N. Y. 156, 158; Fleischmann v. Stern, 90 N. Y. 110, 114; Dunham v. Cudlipp, 94 N. Y. 129, 133; Code Civil Proc. § 522. It is the duty of the court, in charging the jury, to state the issues of fact raised by the pleadings. While this is commonly done in a summary way, by stating the precise questions of fact to be decided, no reason is perceived why it may not be done by reading and analyzing the pleadings, when they are not complicated, and thus pointing out the issues, and the position of the respective parties. It is evident, therefore, that the established practice does not require that the contents of the pleadings should be concealed from the jury, as improper evidence is required to be kept from their attention. On the contrary, as the pleadings mark the boundaries within which the proof must fall, counsel upon either side

those boundaries are, before they introduce their evidence. So, when summing up, they restate the issues in order to logically apply the evidence to them. If they do not agree as to the construction of the pleadings, a question of law is presented, and it becomes the duty of the court to construe them, to determine their legal effct and meaning, and to instruct the jury accordingly. In this case the answer was modified, but not superseded, by the stipulation; and in order to state the issues, and point out what was admitted and what denied, it was necessary to construe the complaint, answer, and stipulation together. While the stipulation narrowed the issues to the injury inflicted upon the plaintiff, and the amount of damages sustained by her, as it was alleged in the complaint, and not denied by the answer as modified, that she was precipitated with the falling bridge and train a distance of about 30 feet into the bed of the feeder, this became an admitted fact, important to be known by the jury, as it bore directly upon the extent of the injury. The fright naturally caused by being thrown that

(117 N. Y. 285)

MOYNAHAN v. WHEELER et al. (Court of Appeals of New York. Nov. 26, 1889.)

INJURIES BY VICIOUS ANIMALS.

2. Defendants are not liable for such injury on an allegation that they knew the cow to be unruly and vicious, and negligently permitted her to be that the cow had previously done similar or any led through the street, without proof by plaintiff mischief, or that she was of an ungovernable temper, or that defendants knew her to be unruly.

Appeal from city court of Brooklyn, general term.

distance, amidst the crash of the breaking | have also considered the claim of the respondbridge and falling train, was also important. ent that the court should award damages, by Was it not within the discretion of the way of costs, for the delay caused by this aptrial court to permit counsel, in summing up peal, under section 3251 of the Code of Civil for the plaintiff, to call the attention of the Procedure; but, as the appeal presented dejury to this allegation of the complaint, and batable questions that had not been settled to show by reading, and, by proper comments, at the time it was brought, we do not think fairly explaining, the answer, that it was that the application should be granted. The not denied? It does not appear that more judgment should be affirmed, with costs. All than this, or that even as much as this, was concur, except BRADLEY, J., who concurs in done upon the occasion in question. We are result, and POTTER, J., not sitting. not informed by the record how much, or what part, of the answer was read, nor what comments were made by counsel thereupon. The part read may have been unimportant, and the comments made may have been immaterial. No presumption of harm arises 1. A complaint under Laws N. Y. 1872, c. 776, from the fact that a party has read a portion which makes it unlawful for cows to run at large of his opponent's pleading to the jury, and in any public place, alleging that defendants' cow was carelessly permitted to run at large on a public has commented upon the same. Cases may highway, where she knocked plaintiff down, is anarise where such a course, if allowed by the swered by showing that while defendants' servant court after objection, would be palpably in- was lawfully leading the cow through the streets jurious, and furnish good ground for an ap-control, and while so at large inflicted the injury. she was set upon by dogs, and escaped from his peal; but, in order to be available, a complete history of the transaction, including all that was said and done, should be spread before the appellate court; otherwise, it would be unable to determine whether the alleged error was prejudicial or not. If the court should permit an improper question to be asked, an exception based thereon would be worthless, unless the answer of the witness was stated, as it might have been irresponsive and immaterial. Even if the record showed that the question was answered, the exception would still be unavailing, unless the character of the answer appeared. So the comments of counsel for the plaintiff in this case may have been injurious to the defendant, but they are not presumed to have been so, and, as they have not been presented to us, we are DANFORTH, J. It is not lawful for any unable to determine whether they were or cow to run at large in any street or public not. This position is supported by the au- place in this state, (Laws 1872, c. 776,) and thorities, so far as the subject has been before it was assumed by the parties that the origthe courts. Willis v. Forrest, 2 Duer, 310, inal complaint stated a good cause of action 317; Rowe v. Comley, 2 N. Y. Civil Proc. by alleging that on the 1st of April, 1885, a 424, 427; Colter v. Calloway, 68 Ind. 219; cow owned by the defendants was carelessly Boots v. Canine, 94 Ind. 408. In a case re- permitted to run at large and unrestrained cently before this court the record shows that, upon a public highway in the city of Brook"while addressing the jury, the counsel for lyn, and, being so at large, knocked down the plaintiff was about to read to the jury a and injured the plaintiff. But these circumportion of the defendant's answer, when the stances were explained by evidence. It was defendant's counsel objected upon the ground made to appear that the defendant Wheeler that the answer was not in evidence, and had agreed to sell and deliver the cow to the that it was improper to read the same. The other defendant, Farrell, and, in pursuance court overruled the objection, and the plain- of their engagement, one Matt Finnan, a tiff's counsel read to the jury, and comment-person long accustomed to that kind of busied upon, certain parts of the answer, to all ness, was employed to lead the cow to the which the defendant's counsel duly except- purchaser. For that purpose he put a suited, "thus presenting a state of facts almost identical with those now under consideration. The point was not regarded as of enough weight to reverse the judgment, as it was affirmed both by the general term and the court of appeals.

Huston v. Gilbert, 40 Hun, 638, 113 N. Y. 622, 20 N. E. Rep. 876.

We have examined the exceptions relating to the admission of evidence, but found nothing that should disturb the judgment. We

Action by Janet Moynahan, an infant, by her guardian ad litem, Daniel Moynahan, against Thomas E. Wheeler and others, for an injury to plaintiff caused by a cow. verdict for plaintiff was affirmed at the general term, and defendants appeal.

A

Wm. Parker, for appellants. Chas. J. Patterson, for respondent.

able rope around her horns, and with that in hand started for Mrs. Farrell's. Before reaching Farrell's place, however, two dogs violently seized upon and frightened the cow. She kicked and knocked down Finnan, pulled away from him, and ran off. While thus at large, and beyond his control, she inflicted the injury complained of. This answered the complaint. But the plaintiff was permitted to amend by adding that "the cow

Bill by Annie Harding, as executrix of Henry A. Whitten, against Mary A. Littlehale and Sarah A. Whitten, for instructions as to the disposition of certain money held by plaintiff as executrix, and claimed by each of the defendants. The sum in controversy was the proceeds of a policy of life insurance issued to plaintiff's testator by a corporation doing business on the assessment plan, which plaintiff claimed as part of the testator's estate, and which was sought to be recovered by defendants, as the daughter and widow, respectively, of testator. There was judgment for plaintiff, and defendants appeal.

W. C. Parker and E. L. Barney, for appellants. L. L. B. Holmes and E. D. Stetson, for appellee.

was to the defendants' knowledge unruly and vicious, and with this knowledge they negligently permitted her to be led and driven by their servant through the streets, where she was allowed to escape from control." The plaintiff, however, failed to establish that the cow had ever before done mischief similar to that complained of, or of any kind; or that she was by habit or nature of an ungovernable temper; or if from her present conduct that could be inferred, no evidence was given that the defendants had knowledge or notice that she was unruly or had done similar acts. In the absence of that proof, the defendants cannot be held liable. Van Leuven v. Lyke, 1 N. Y. 515. In such an action for injury done to the person by domestic animals the owner must be shown to have had notice of their viciousness before he can be charged, or that he failed to use in their management the reasonable care which a man of ordinary prudence might be expected to exercise un-assessment plan. Section 1 is as follows: der like circumstances. The plaintiff's case "Every contract whereby a benefit is to acpresented both alternatives, but in respect to crue to a party or parties named therein, upeach the proof failed. It is not necessary to on the death or physical disability of a perconsider the other points made by the appel- son, which benefit is in any degree or manlant. The one discussed sustains the appeal, ner conditioned upon persons holding similar and upon another trial the other questions contracts, shall be deemed a contract of inmay not arise. The complaint should have surance on the assessment plan, and the busbeen dismissed for failure of proof; and be-iness involving the issuance of such concause it was not, the judgment in favor of the plaintiff should be reversed, and a new trial granted, with costs to abide the event. All concur.

(150 Mass. 100)

HARDING V. LITTLEHALE et al. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 13, 1889.)

INSURANCE-FOR BENEFIT OF INSURED.

1. St. Mass. 1885, c. 183, relating to insurance 1. St. Mass. 1885, c. 183, relating to insurance on the assessment plan, defines, in section 7, a contract of insurance on the assessment plan as any contract whereby a benefit is to accrue to a party or parties named therein upon the death of a person, which benefit is in any manner conditioned upon persons holding similar contracts. Held, that the chapter authorized the insurance of an ap. plicant for his own benefit, the proceeds of the policy going to his personal representative, for the benefit of his estate; sections 10, 11, forbidding insurance for the benefit of a person not having an insurable interest in the insured life, and exempting from attachment money paid under the policy, not being inconsistent with such construction.

KNOWLTON, J. The statutes of 1885, c. 183, made important changes in the law relative to life and casualty insurance on the

tracts shall be carried on in this commonwealth only by duly-organized corporations, which shall be subject to the provisions and requirements of this act; but nothing herein contained shall be construed as applicable to organizations which conduct their business as fraternal societies, on the lodge system, or to organizations which do not employ paid agents in soliciting business, or limit their certificate-holders to a particular order or fraternity, or to the employes of a particular town or city, designated firm, business house, or corporation; or to organizations which are unincorporated, and limit the amount of every certificate issued to a maximum amount, not exceeding five hundred dollars on any one risk. If the benefit is to accrue through the death of the insured person, the contract shall be of life insurance; if through the accidental death only, or the physical disability, from accident or sickness, of the insured, it shall be of casualty insurance." In the first

2. Where the policy of insurance provides for the accumulation of an emergency fund, as re- part of the section is a broad and comprehenquired by St. 1885, c. 183, § 8, and in other particu-sive definition of insurance on the assessment lars conforms to the requirements of that chapter, the corporation making the contract must be plan. The last part of the section marks the deemed to be acting with the enlarged powers con- distinction between life insurance and casualferred thereby; it being provided by section 3 that ty insurance. In the middle of the section, all companies then existing for the purposes con- certain classes of organizations are excepted templated by that chapter may exercise the rights and powers conferred by the chapter as if reincor- from the provisions of the act. The second porated thereunder. section provides for the formation of corporations to carry on the business of life or Casualty insurance on the assessment plan. Section 3 relates to existing corporations engaged in transacting that business, and authorizes the reincorporation of such corporations, with a proviso "that nothing in this act contained shall be construed as requiring or making it obligatory upon any such corporation to reincorporate; and any such corpora

3. Where, in such policy, the corporation agrees to pay "to the executors or adminstrators of said member, in trust, however, for, and to be forthwith paid over to, his heirs at law," but in the application, which is expressly made part of the contract, the contract is stated to be for the benefit of the applicant himself, in the absence of anything else to show an intention to make the heirs beneficiaries, the proceeds of the policy must be administered as part of the estate of the insured.

Appeal from superior court, Bristol county.

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