(25 Civ. Proc. R. 342; 17 Misc. Rep. 365.) LAZARUS et al. v. LUDWIG. (Supreme Court, Appellate Term, First Department. June 9, 1896.) APPEAL FROM JUSTICE COURT-RETURN-TIME TO FILE. Code Civ. Proc. § 3053, providing that a justice must, after 10 and within 30 days from the service of the notice of appeal from his decision, make his return to the appellate court, does not forbid him to make his return within 10 days. Action by Sarah Lazarus and others against Bernhard J. Ludwig. Respondent moves to strike the cause from the calendar. Denied. Argued before DALY, P. J., and MCADAM and BISCHOFF, JJ. Wm. Strauss, for the motion. N. S. Spencer, opposed. PER CURIAM. Section 3053 of the Code provides that the justice must, after 10 and within 30 days from the service of the notice of appeal and the payment of the costs and fees, make his return to the appellate court. The return herein having been made within 10 days from the service of the notice of appeal, the respondent claims it was prematurely filed, for the appellant was thus enabled to get the cause on the calendar for hearing at the May term, whereas, if the justice had filed his return after the 10 days, the cause could not have been so placed upon the calendar. We find nothing in the statute which prevents the justice from filing his return as soon after the service of the notice of appeal upon him as he desires. He is under no obligation to do so, for the statute does not require him to file the same within 10 days; but it is not to be implied from this that he is forbidden to do it. The claim has never been made that a return filed after the 30 days deprives the court of the right of hearing the appeal, or subjects either party to any penalty other than that of inconvenience caused by the delay. Delays in the administration of justice are not to be encouraged, and, as the justice is bound to make a return, we see no reason why he may not make it as soon as he pleases, provided he offends no statute, and none has been infringed in this instance. "In general, it may be laid down as a rule that, when a statute directs certain proceedings to be done in a certain way or at a certain time, and the form or period does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being of the essence of the thing required to be done." Potter, Dwar. St. p. 226, citing numerous illustrations. The court of appeals applied the rule in Re New York Protestant Episcopal Public School, 47 N. Y., at page 561, reiterating the language of Lord Mansfield in Rex v. Loxdale, 1 Burrows, 447: "There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory. The precise time in many cases is not of the essence." Statutes are directory where they relate to some immaterial matter, where a compliance is matter of convenience rather than of substance. People v. Schermerhorn, 19 Barb. 558. As to the application of the principle to courts of inferior jurisdiction, the court of appeals (In re Empire City Bank, 18 N. Y., at page 220) has said: "But if the proceedings should be regarded as not taking place in a court of general jurisdiction, but should be assimilated to a special proceeding before an inferior magistrate, we still think the time fixed for the performance of intermediate steps, after jurisdiction had been once acquired, should be regarded as directory merely, and that an omission to perform one or more of them in time would not render the whole proceeding abortive." There is nothing in Moench v. Yung (Com. Pl.) 9 N. Y. Supp. 637, or Zoller v. Smith, 45 Hun, 319, which conflicts with these views. It follows that the motion must be denied. (17 Misc. Rep. 332.) LANT v. RASINES et al. (Supreme Court, Appellate Term, First Department. June 2, 1896.) EVIDENCE-EXPERT TESTIMONY-HYPOTHETICAL QUESTION. Where plaintiff in an action for services as civil engineer testified in detail as to the services rendered, it is error to ask another witness, who had testified that he was a civil engineer, and that he had heard "most" of the testimony in the action, if he could, from what he had heard of the testimony, give an estimate of what plaintiff's services were reasonably worth. 38 N. Y. Supp. 975, reversed. Appeal from city court of New York, general term. Action by Frank P. Lant against Antonio Rasines and Philip Heipershausen, impleaded with Lewis H. Newton and James E. Byrne, to recover $500, as compensation for services alleged to have been rendered by plaintiff to defendants. A judgment entered on a verdict in favor of plaintiff for $300 was affirmed by the city court (38 N. Y. Supp. 975), and defendants Rasines and Heipershausen appeal. Reversed. Argued before DALY, P. J., and BISCHOFF and MCADAM, JJ. Mark Ash, for appellants. Geo. W. Sandford, for respondent. DALY, P. J. The rule with respect to questions put to expert witnesses on the subject of value is, as stated by Judge Gray in Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696: "An expert witness should be confined to questions which contain in themselves the facts assumed to be proven upon which his opinion is desired." There is an exception to the rule, and that is where the testimony of a single witness is called to the attention of the expert, and he is asked a question based upon the testimony of that witness. It is there the same as if the testimony had been read over to him and embodied in the question. That was the case of McCollum v. Seward, 62 N. Y. 316, where the expert was asked, "What were his services as he, the plaintiff, described them worth?" and the case of Seymour v. Fellows, 77 N. Y. 178, when the query was, "What, in your opinion, was the value of the services which Mr. Seymour stated he rendered?" and the case of Miller v. Richardson, 88 Hun, 49, 34 N. Y. Supp. 506, where the court said: "There was no error in the reception of the evidence offered to prove the value of services performed by plaintiff, as described by the testimony of another witness." This case is not within the exception to the rule. The plaintiff having given testimony which covers a large number of folios, an expert is called and asked this question: "Q. Have you heard all the testimony in this suit? A. Most of it." And is then asked: Q. Can you answer my question now, and give, as an estimate, from what you have heard of the testimony, what these services were reasonably worth?" The jury could not possibly know what was in the witness' mind. He did not say: "I have heard the testimony of the plaintiff, and, from what he stated, his services were worth so much." He only professed to speak from what he had heard of the testimony, and we do not know whether that excluded the more important parts of it or not. It is impossible to sustain that question without extending the exception to the rule further than the court of appeals or the supreme court has been willing to go, and perhaps without destroying the rule. Judgment reversed, and new trial ordered, with costs to appellant of appeal in this court and the court below, and of the former trial to abide event. All concur. 6 App. Div. 47.) ZIEGLER v. LAMB. (Supreme Court, Appellate Division, First Department. May, 1896.) DISCOVERY EXAMINATION OF PARTIES BEFORE TRIAL. Examination of a party before trial is not permissible to enable the adverse party to ascertain whether he has a cause of action against other persons not parties. Appeal from special term, New York county. Action by William Ziegler against Hugh Lamb. From an order denying a motion to vacate an order for the examination of defendant before trial, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ. Albridge C. Smith, for appellant. J. Tredwell Richards, for respondent. PER CURIAM. This order should be reversed. The plaintiff makes no affidavit upon which to obtain the order for the examination of the defendant before trial. His attorney alone makes the affidavit. But, further, it clearly appears from the attorney's affidavit that he does not need the defendant's examination for the purpose to which he refers, namely, the purpose of amending his complaint by setting up the real owners of the land. The defendv.40N. Y.s.no. 1-5 ant admits that he has the legal title to the property, and that is sufficient. There is no provision allowing the examination of a party to an action before trial, so as to enable his adversary to ascertain whether he has a cause of action against other persons not parties. The avowed object of this examination is to discover whether or not such persons exist, and we know of no principle that would justify the granting of such an application. The order should be reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the de fendant before trial granted, with $10 costs. (5 App. Div. 48.) FLEET v. CRONIN. (Supreme Court, Appellate Division, First Department. May, 1896.) DISCOVERY-PREMATURE APPLICATION. An application for a discovery should be denied where the complaint was amended after the answer was served, as the service of the amended complaint destroyed the issues raised by the original pleadings. Appeal from special term, New York county. Action by Irene A. Fleet against Helen M. Cronin, as executrix of the will of Timothy C. Cronin, deceased. From an order requiring defendant to make discovery of certain papers, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O'BRIEN, and INGRAHAM, JJ. I. Newton Williams, for appellant. PER CURIAM. This motion was made after issue joined to obtain a discovery and inspection for use by the plaintiff upon the trial. After the motion was noticed, an amended complaint was served, to which it does not appear that any answer has been interposed. As the service of an amended complaint destroys the is sues raised by the original pleadings, and as the defendant has not joined issue upon the amended complaint by serving an answer, the motion should have been denied; it having been many times held that, until the cause is at issue, the application for discovery of books and papers for use upon the trial is premature. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, but with leave to plaintiff after issue joined to renew the motion. (7 App. Div. 352.) BARKER et al. v. LANEY. (Supreme Court, Appellate Division, Fourth Department. June 17, 1896.) COSTS RIGHT TO-EQUITABLE ACTION. Where a party to an equitable action seeks to recover more than he is entitled to, and does not succeed entirely, but the decree is partly in favor of one party, and partly in favor of the other, costs will not be awarded to either. Appeal from judgment on report of referee. Action by Manderville J. Barker and Laura A. Laney, as executors of the will of Enos G. Laney, deceased, substituted as plaintiffs in place of said decedent, by whom the action was commenced on March 10, 1890, individually and as administrator of James Laney, deceased, against Mary K. Laney. There was a judgment in favor of plaintiffs, and defendant appeals. Modified. Enos G. Laney died on the 25th day of March, leaving a will, and the present plaintiff's were named, and have qualified, as his executors. In November, 1893, an order was made substituting them as plaintiffs in this action, and reviving the action in their name, and the proceedings theretofore had were "directed to stand as the pleadings and proceedings in this action; and the evidence taken before E. M. Morse, referee, so far as it was applicable, was by said order to stand as the evidence in the action so revived." The action has been twice tried before Mr. Morse, as referee. Upon the first trial there was a recovery of $7,637.02 damages, besides costs. The defendant took an appeal, and the judgment was "reversed, and a new trial granted, with costs to abide the event of the action unless the plaintiffs stipulate within twenty days after the service of the order to reduce the recovery by the sum of $1,934.40, as of the date of the report of the referee; and, in case such stipulation be given, the judgment be, and the same is, affirmed for the sum of $5,612.04, without costs of the appeal to either party." After the entry of an order upon that decision, no stipulation was given, and a second trial was in progress at the time of the death of Enos G. Laney. The judgment now appealed from was entered on the 2d day of October, 1894. The complaint presents an equity action, in which the plaintiff states that on the 20th of February, 1888, a decree was made by the surrogate "judicially settling the accounts of this plaintiff as such administrator, and directing the payment to this defendant of the sum of five thousand eight hundred fifty-five dollars and fifty-six cents ($5,855.56) as and for her share of the residue found by said decree in the hands of this plaintiff, as administrator, to which said defendant was entitled as widow of said James Laney, deceased." That decree was subsequently modified by the general term by a decree entered on the 27th of December, 1889, and the sum ordered to be paid to the defendant was reduced to the sum of $5,881.30. The complaint further alleges that the plaintiff, between the 4th of April, 1885, and the 6th day of February, 1890, advanced to the defendant, at various times and in various amounts, a large sum of money; and it alleged that no part of the moneys advanced as aforesaid was due the defendant "except in the manner and amount directed by said surrogate's decree to be paid said Mary K. Laney, as her share of the estate of said deceased, and that no part of said moneys so advanced has been repaid to plaintiff by defendant." The complaint also contained an allegation that in March, 1890, after the advances were so made, the defendant obtained a transcript of the surrogate's decree, as it was modified, and caused the same to be docketed in the clerk's office of Monroe county, and caused an execution to be issued thereon, and delivered to the sheriff of Monroe county, with directions to levy $5,881.30, and that a levy was made upon the property of Enos G. Laney, and that the sheriff was about to make sale thereof when this action was commenced. The complaint asked that it be adjudged that the plaintiff "has paid to the defendant $5,881.30, directed to be paid to Mary K. Laney by the decree made by the surrogate, *本 and modified on the 27th day of December, 1889, and that said judgment or decree be satisfied of record." The complaint further prayed that the defendant may be adjudged to pay to the plaintiff the damages sustained by him by reason of the said trespass.-"the said trespass as above set forth,-in the sum of five thousand dollars." It also contained a prayer that the defendant be adjudged to account to the plaintiff for all moneys advanced to the defendant, with interest thereon, and that the defendant "be adjudged to pay to the plaintiff the sum of four thousand five hundred sixty-seven dollars and seventy-seven cents ($4,567.77), with interest on the various sums advanced as aforesaid, from the dates they were so advanced." It also contained a prayer asking |