have been appropriated for that purpose. Section 76, p. 454, requires the publication of assessments for damages to property taken for public improvements to be made within a week after their entry on the records of the board of aldermen, and makes such assessments payable on the first week day after the last regular meeting of the board of finance following the publication of the assessments, and the charter requires the regular meeting of the board of finance to be held on the first Tuesday of each month. Proceedings for taking land for a street were finally acted upon by the board of aldermen on December 19, 1906, and approved by the mayor on December 20th, at which time available appropriations had been exhausted, so that sufficient funds were not available to pay the damages, but sufficient appropriations had been made which would be available on January 1, 1909, and at all times since, and the damages were deposited with the city treasurer in April, 1909, when the city entered upon the land condemned. Held, that the action of the city in ordering the improvements was not unlawful or void under sections 92 and 133, on the ground that no appropriations were then available to pay the damages; it being sufficient that funds had then been appropriated for that purpose which would be available on January 1, 1907. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 758-761; Dec. Dig. § 288.*] 3. STATUTES (§ 181*)-CONSTRUCTION SIDERATION OF CONSEQUENCES. should be ordered until an appropriation for the same had been duly made and funds to pay for the same had been provided and set out for that purpose. Sp. Laws 1895, p. 459, § 92; page 469, § 133. During the year 1906 the board of aldermen of the defendant took action, pursuant to the provisions of its charter, to make a new street layout which involved the taking of the plaintiff's land in question. These proceedings culminated in final action by the board on December 19, 1906, approved by the mayor on the following day, adopting the The report of the bureau of assessments. improvement cannot be said to have been ordered before that action was taken. Until that time the proceedings had been tentative, and the city was free to discontinue them. Then the obligation of the city became fixed, and the door of retreat first closed. Bohannan v. Stamford, 80 Conn. 107, 109, 67 Atl. 372; Shannahan v. Waterbury, 63 Conn. 420, 425, 28 Atl. 611. At this time the appropriations available for the payment of the damages awarded and the estimated cost of construction had been so far exhausted by lia-CON- bilities already incurred that there was not a sufficient balance to make these payments. Appropriations had been made, however, which would be available for the purpose on January 1, 1907, and be sufficient therefor. At all times since that date there have been adequate available appropriations. In April, 1909, the defendant deposited with the city treasurer, as provided by charter, the amount of the damages awarded to the plaintiff, and thereafter entered upon the land attempted to be condemned, and constructed the highway upon the layout. It is not presumed that the Legislature intended a construction of a city charter which would create serious and useless embarrassments to the orderly administration of the city's affairs. [Ed. Note. For other cases, see Statutes, Cent. Dig. 263; Dec. Dig. § 181.*] Appeal from Superior Court, New Haven County; William H. Williams, Judge. Action by Thomas Kelly against the City of Waterbury. From a judgment for defendant upon demurrer to the complaint, plaintiff appeals. Affirmed. See, also, 73 Atl. 136. Terrence F. Carmody, for appellant. Francis P. Guilfoile and William E. Thoms, for appellee. PRENTICE, J. The plaintiff seeks compensation for injuries claimed to have been sustained by him by reason of an unlawful appropriation of a piece of his land for highway purposes. The charge of unlawful appropriation is based upon the claim that the proceedings which were taken by the defendant for the condemnation of the land were of no effect, for the reason that they were had in violation of limitations in its charter to the effect that neither the city, nor any department, officer, or board of commissioners thereof, should incur any liability or expense, by contract or otherwise, for which the city should be responsible, in excess of the appropriations made by the board of aldermen in a manner provided in the charter, and that no improvement of any kind An amendment to the defendant's charter, adopted in 1905 (14 Sp. Laws, p. 774), proacter shall not be payable or collectible unvides that benefits and damages of this chartil the work shall have been completed. The plaintiff contends that this provision is unconstitutional and void. If this be assumed, the time when the damages assessed to the plaintiff by the action of the board on De cember 19, 1906, approved December 20th, became payable would be determined by the provision of the charter of 1895, to wit, upon the first week day after the next regular meeting of the board of finance following the publication of the assessments, which was required to be made within one week board of aldermen. Sp. Laws 1895, p. 454, § after their entry upon the records of the 76. The charter provided that the regular meetings of the board of finance should be held on the first Tuesday of each month. Its next meeting after December 20th was therefore not earlier than January 1, 1907. Whether or not, then, legal effect be given to the For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (83 Conn. 278) HOWEY V. NEW ENGLAND NAVIGA- (Supreme Court of Errors of Connecticut. TION BELOW-INJUNCTION-MEASURE OF RE COVERY-NECESSITY. Where, in an action for personal injuries, defendant did not object to plaintiff's claim that damages were recoverable according to the laws of another state, defendant cannot raise the question for decision on appeal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 1079; Dec. Dig. 173.*] 2. APPEAL AND ERROR (§ 882*)-ESTOPPEL TO ALLEGE ERROR. Plaintiff cannot claim on appeal that the court erred in following the law invoked by him. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3591; Dec. Dig. § 882.*] 3. NEW TRIAL (§ 162*)—Grounds-EXCESSIVE DAMAGES. amendment of 1905, the fact remains the same, that no liability was incurred by the action of the board of aldermen in 1906 which could constitute a demand upon the city or be enforceable against it before January 1, 1907, when an appropriation made prior to December 20, 1906, became avail- 1. APPEAL AND ERROR (§ 173*)-PRESENTAable for its full satisfaction. The question thus presented resolves itself into this: Whether action by the defendant or its governmental agencies which creates a liability that will mature at some future time is forbidden by the defendant's charter, if at the time of such action an appropriation has been made which will assuredly be available to satisfy the liability thus incurred when it accrues. We think that the answer to this question must be given in the negative. There is nothing in either the letter or manifest purpose of the provisions quoted which points to a contrary conclusion. Under the conditions stated, an appropriation to meet the liability would have been made and funds to pay for the same provided when the improvement was ordered and the liability incurred, and the liability would not be in excess of the appropriation made. That is all that the language requires. If it can be said that there is any ambiguity about it, an interpretation of it with a regard to the mischief aimed at and the apparent intent of the Legislature naturally leads to the conclusion stated. Any other would be one which would create serious purposeless embarrassments to the orderly and efficient administration of many of the larger affairs of the city, and it is not to be presumed that the Legislature intended any such result. In the circumstances of the present case, the conditions stated in the question thus answered are fully met. If the assessments of damages made to the plaintiff and others by reason of this public improvement were not payable until the land was physically An entire excessive verdict may be set aside unless a part of it is remitted, and a statement by the trial judge that he would set aside a verdict for $4,000 unless all but $1,000 was remitted was not a reduction of the verdict to $1,000 so that the verdict set aside on failure to remit was the verdict for $4,000. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 324-329; Dec. Dig. § 162.*1 4 DEATH (§§ 82, 89*)-ACTION-DAMAGES"JUST COMPENSATION." A statute giving a right of action for the benefit of the next of kin for death by wrongful act, and limiting the damages to a fair and just compensation for the pecuniary injuries resulting from decedent's death to the person for whose benefit the action is brought, means reasonable compensation for the pecuniary injury, considering the character, capacity, and condition of decedent, and the age, circumstances, and condition of the next of kin, but not decedent's physical pain and suffering, or the mental anguish of relatives. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 106, 118; Dec. Dig. §§ 82, 89.* For other definitions, see Words and Phrases, vol. 4, pp. 3897-3902.1 5. DEATH (§ 97*)-ACTION-AMOUNT OF RE COVERY. decedent's death to the persons for whose benefit the action is brought, the jury should determine what is a fair and just compensation in the exercise of a reasonable judgment, subject to some extent to the trial judge's supervision. [Ed. Note.-For other cases, see Death, Cent. Dig. § 123; Dec. Dig. § 97.*] taken, and the work commenced or completed, then the appropriation for the year 1907, In an action for death by wrongful act for necessarily made prior to December 19th, the benefit of the next of kin, under a statute limiting the damages to a fair and just compenhad during the period of that year and thir-sation for the pecuniary injuries resulting from ty days afterward been at the service of the city to be utilized by it in paying them, either voluntarily or under the compulsion of a duty arising from the execution of the work which the city might have executed. Sp. Laws 1895, p. 459, §§ 92, 93. Appropriations ample to meet these payments have at all times since been available. It cannot, therefore, be said that the liability was improperly incurred when it was incurred. If, on the other hand, the assessments were payable at the time fixed in the charter before its amendment, then the appropriation for 1907 was ample to satisfy them, and available for that purpose when they fell due. There is no error. 6. DEATH (§ 99*)-ACTION-DAMAGES-EXCESSIVE DAMAGES. Decedent, for whose wrongful death his administrator sued to recover damages for his next of kin, his father, was 42 years old at his death, earned $30 per month and board, and had saved $200; his father was 87 years old, without means, and had lived with plaintiff for the past 11 years, and decedent had not visited him for over a year before his death, but contributed to his support by sending him $10 a month for his father's board. Held, that a verdict for plaintiff for $4,000 was properly set aside as exces For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes sive; plaintiff not having consented to reduce | ment. The inquisition verdict, report or deit to $1,000. [Ed. Note. For other cases, see Death, Cent. Dig. §§ 125-130; Dec. Dig. § 99.*] cision, may specify the day from which interest is to be computed; if it omits so to do, the day may be determined by the clerk up Appeal from Superior Court, New London on affidavits.' County; Joel H. Reed, Judge. state: "On said day there was also in force and Action by Margaret S. Howey, administra-operation in said state of New York the foltrix, against the New England Navigation lowing provision in the Constitution of said Company. From an order granting a motion to set aside a verdict for plaintiff as excessive, and granting a new trial, plaintiff appeals. Affirmed. The complaint describes an accident which occurred September 12, 1909, in the port of New York, alleged to have been caused by the defendant's negligence, and by which the plaintiff's intestate, Robert Swanton, employed on one of the defendant's steamers, sustained injuries from having his foot and ankle caught and crushed by a hawser, which had not been properly cast off from the wharf spile when the steamer was leaving its dock, which injuries caused his death. After alleging that the deceased left surviving him his father, as next of kin, the complaint contains these averments: "At the time stated there was and still is in force and operation in said state of New York a certain law and statute of said state of New York, the following sections of the Code of Civil Procedure: "1902. The executor or administrator of a decedent who has left, him or her surviving, a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would be liable to an action in favor of the decedent by reason thereof, if death had not ensued. "1903. The damages recovered in an action brought as provided in the last section are exclusively for the benefit of the decedent's husband, or wife, and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets in his hands for the payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, the reasonable funeral expenses of the decedent and his commission on the residue, which amount must be allowed by the surrogate upon notice given in such a manner and to such persons as the surrogate deems proper. 66 "Article, 1, § 18: "The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.' "And thereupon and thereby, under and by virtue of the provisions of the aforesaid laws and statutes of the state of New York, a cause of action to recover damages as therein provided from the defendant for its wrongful act, neglect, and default, by which the death of the plaintiff's intestate was caused, as above set forth in this complaint, was given, accrued, and survived to the plaintiff, as his administratrix aforesaid, for the benefit of the said next of kin of said deceased." The ad damnum clause of the complaint is as follows: "The plaintiff claims $25,000 damages by force of the statutes as above set forth, in such case made and provided." The answer was substantially a denial of the averments of the complaint. He The evidence at the trial showed that the deceased, Robert Swanton, who was a brother of the plaintiff, was 42 years old at the time of his death, and was earning $30 a month and his board, in the defendant's employ, and that he had saved about $200. had never married, and his next of kin was his invalid father who was 87 years old, and without means, and who has lived with the plaintiff during the past 11 years. The deceased had not visited his father for more than a year prior to the accident. He contributed to his support by sending to the plaintiff $10 a month for his father's board. The plaintiff also laid in evidence sections 1902-1904 of the Civil Code of New York, section 18, art. 1, of the Constitution of New York, and the cases of Tilley v. Ry. Co., 24 N. Y. 475, 29 N. Y. 287, 86 Am. Dec. 297, Ihl v. 42d St. Ry. Co., 47 N. Y. 321, 7 Am. Rep. 450, Lockwood v. N. Y. Central R., 98 N. Y. 525, and Countryman v. Fonda R. Co., 166 N. Y. 208, 59 N. E. 822, 82 Am. St. Rep. 640, as evidence of the law of New York giving to the plaintiff this cause of action. The jury rendered a verdict for the plaintiff for $4,000. The defendant filed a motion to set aside the verdict, the first and third grounds of which were respectively that the verdict was against the evidence, and that the damages awarded were excessive. 1904. The damages awarded to the plaintiff may be such a sum as the jury, upon a writ of inquiry, or upon a trial, or when is sues of fact are tried without a jury, the court or the referee deems to be fair and just compensation for the pecuniary injuries resulting from decedent's death, to the person or persons for whose benefit the action is brought. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereon from the decedent's death and include it in the judg•For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes In his memorandum of decision of the motion, the court said that it was granted upon the third ground, unless the plaintiff within one week remitted all the damages except $1,000. The plaintiff not having remitted the damages in accordance with the memoran dum of decision, the court set aside the verdict and granted a new trial, limiting the new trial to the question of damages. The setting aside of the verdict and granting a new trial as to damages, unless the plaintiff should remit the damages to the sum of $1,000, are the reasons of appeal as signed by the plaintiff. Donald G. Perkins and Allyn L Brown, for appellant. Joseph F. Berry, for appel lee. HALL, C. J. (after stating the facts as above). No one questions but that the plaintiff, as administratrix upon her brother's estate, might have maintained an action in our courts and under our laws for damages for the personal injuries sustained by her brother from the defendant's negligence in the state of New York. She has, however, not attempted to avail herself of the right of action given by the laws of our state, but has chosen to endeavor to enforce in the courts of this state a right of action given by the laws of the state of New York, evidently believing it would be to her advantage to do so. Whether when our own laws furnished to the plaintiff, as administratrix, an adequate remedy, and perhaps one more beneficial for those interested in the decedent's estate, than did the laws of New York state for the injuries to her intestate, our courts, upon objection made, would as a matter of comity, enforce the remedy given by the laws of another state where the accident happened, and which fix a different rule or limit of damages than those established by our laws, we have no occasion to decide in the present case, since that question is not raised by the appeal. The plaintiff by her complaint expressly asks, and asks only, for the enforcement of the right of action given by the law of New York. The defendant, if he does not concede that this action is to be governed by the laws of the state of New York as to the character of the damages recoverable, at least makes no objection to the plaintiff's said claim upon that subject. This is the plaintiff's appeal, and she would not be heard to claim that the court erred in applying correctly the law which she herself invoked. We have therefore only to decide whether the trial court erred in holding that the damages awarded were excessive considering the character of the damages recoverable by the laws of New York state. Again, we are not to inquire whether a verdict for any sum over $1,000 and under $4,000 would have been excessive, but only whether the verdict for $4,000 was excessive. That was the only verdict rendered, and the only one set aside. The statement of the trial judge that the verdict would be set aside unless the plaintiff remitted all except $1,000 was not a reduction of the verdict to $1,000. The practice of setting aside an entire verdict, which is excessive unless a part of it is remitted, is sanctioned in this state. Dunning v. Crofutt, 81 Conn. 101, 104, 70 Atl. 630. By the law of New York, as claimed by the plaintiff and alleged in the complaint, the damages recoverable in this action are exclusively for the benefit of the decedent's next of kin-in this case his father-and the damages to be awarded are limited to a "fair and just compensation for the pecuniary injuries resulting from the decedent's death, to the person or persons for whose benefit the action is brought." The words "fair and just compensation for the pecuniary injuries" mean reasonable compensation for such injuries, considering the character, qualities, capacity, and condition of the deceased, and the age, circumstances, and condition of the such next of kin, or the person or persons for whose benefit the action is brought, and not considering as elements of damage the suffering of the deceased from the injuries, nor the grief of such relatives, and such is the interpretation of these words by the courts of New York. Tilley v. Railway Co., 24 N. Y. 471, 475, s. c. 29 N. Y. 252, 86 Am. Dec. 297; Ihl v. 42d St. Ry. Co., 47 N. Y. 321, 7 Am. Rep. 450; Countryman v. Fonda R. Co., 166 N. Y. 201, 59 N. E. 822, 82 Am. St. Rep. 640; Etherington, Adm'r, v. Prospect Park R. Co., 88 N. Y. 643. In Smith, Adm'r v. Lehigh Valley R., 177 N. Y. 379, 384, 69 N. E. 729, which was an action like the present one, the court said that "such injuries are to be compensated for on the basis of the monetary value of the services of the deceased to her husband and children. Into such a case the personal element does not enter, for the law does not compensate for grief or sorrow, but only for the actual pecuniary loss." In The following cases cited by defendant's counsel indicate to some extent the meaning given by the courts of New York to the words "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action is brought." Lipp, Adm'r, v. Otis Bros. Co., 161 N. Y. 562, 56 N. E. 79, the suit was for the benefit of the father, who, as in this case, was the sole next of kin of a deceased son, who left no wife or children. A verdict for $5,000 was set aside. In Carpenter, Adm'r, v. B., N. Y. & P. R. Co., 38 Hun, 116, 119, the action being for the benefit of the father as next of kin of a deceased son, a verdict of $4,000 was held to be excessive. In McIntyre, Adm'r, v. N. Y. C. & H. R. R. Co., 37 N. Y. 287, 296, the deceased earned a dollar a day, and left three children over 21 years of age who lived away from home, and for whom she was in the habit of making clothing and sending it to them. A verdict of $3,500 was reduced to $1,500. In Pitkin, Adm'r, v. N. Y. C. & H. R. R. Co., 94 App. Div. 31, 87 N. Y. Supp. 906, a verdict BANK-NONPAYMENT EVIDENCE. Where the maker of notes payable to a bank was not shown to be a depositor there, the bank in making a prima facie case was not bound to show that on the date the notes became due the maker had not sufficient funds in the bank to pay them. of $1,500 as compensation to a father for the | 2. BILLS AND NOTES (§ 499*)-PAYMENT TO loss of his son, the father having died six months after his son was killed, was set aside as excessive. In Wells, Adm'r, v. N, Y. Cent. & H. R. Co., 78 App. Div. 1, 78 N. Y. Supp. 991, and Dinnihan v. L. O. B Imp. Co., 8 App. Div. 509, 40 N. Y. Supp. 764, verdicts of $3,500 in one case, and $4,000 in the other, each as compensation for the death of a young girl, were each reduced to $2,500. In Klemm v. N. Y. Cent. & H. R. R. Co., 78 Hun, 277, 28 N. Y. Supp. 861, a verdict of $5,000 was rendered for the death of a mother leaving a son and a husband, and a new trial was granted, unless the plaintiff would remit all but $2,500. The plaintiff, on the other hand, cites numerous cases in which the New York courts have refused to interfere with the verdict rendered, and from which he claims that $4,000 was no more than fair and just compensation to the plaintiff for his pecuniary loss, within the meaning of those words of the statute as interpreted by the courts of New York. The laws of New York are controlling as to the character of the loss for which compensation can be recovered in an action under the statute in question, but by the law of New York, as well as by that of our own state, the jury, in the exercise of a reasonable judgment, which is subject in a measure to the supervision of the presiding judge at the trial, are to determine the sum which is a fair and just compensation for such loss. Houghkirk v. Del. & Hud. Canal Co., 92 N. Y. 219, 44 Am. Rep. 370; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 18 N. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1695; Dec. Dig. § 499.*] 3. BILLS AND NOTES (§ 526*)-NOTICE TO INDORSER EVIDENCE. Under Gen. St. 1902, §§ 4259-4276, providing that due notice to the indorser is deemed to have been given by the sender when it has been duly addressed and deposited in the post office or in any branch post office or in any letter box under the control of the post-office department, proof that the president of defendant's bank on the day certain notes matured executed notices of dishonor as a notary public, and, after inclosing them in post-paid envelopes addressed to the indorsers, placed the envelopes with the other mail of the bank, and that between 3 and 6 o'clock in the afternoon of that day the notices went out with the bank's usual mail, being carried to the post by a clerk, whose duty it was to do so, was sufficient to justify a finding, in the absence of proof that the notices were not received, that they were duly mailed as required, though the clerk was not called. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1840-1846; Dec. Dig. § 526.*1 Appeal from Superior Court, Middlesex County; Ralph Wheeler, Judge. Action by the Central National Bank against Orrin E. Stoddard, as indorser of certain notes. Judgment for plaintiff, and defendant appeals. Affirmed. The complaint contains two counts. Paragraph 1 of the first count alleges an indebtedness to the plaintiff from the de fendant upon the following note, attached to E. 108. Applying the law of New York as to the said paragraph as an exhibit: "$8,000. Midcharacter of the loss for which compensa-dletown, Conn., Sept. 18, 1907. Three months tion could be recovered in this action, and giving proper consideration to the evidence showing the situation of the decedent's father, his extreme old age, and ill health, the earning power of the deceased, and the relations between him and his father, we are satisfied that the trial judge committed no error in setting aside the verdict and granting a new trial. The plaintiff has no reason to complain because the new trial was limited to the question of damages, as such limitation is to her advantage. There is no error. (83 Conn. 332) CENTRAL NAT. BANK v. STODDARD. (Supreme Court of Errors of Connecticut. May Term, 1910.) from date we promise to pay to the order of the Central National Bank eight thousand dollars, at the Central National Bank of Middletown, for value received. The Stegmayer Enamel Brick Co., H. C. Holmes, Prest. Due Dec. 18th." Indorsements on back of same: "H. C. Holmes." "C. B. Leach." "Orrin E. Stoddard." "Indorsers duly notified of nonpayment of this note. R. C. Markham, Notary Public." The averments of the second count and the exhibit attached to it were in all respects like those of the first, except that the note upon which it counted was dated October 10, 1907, was for $7,000, had two additional indorsers, and was marked "Due Jan. 10th/8." The second paragraph of each count alleges that on a named day (stating the day on which the note became due) the note de- 1. BILLS AND NOTES (§ 394*)-PRESENTMENT- [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1003; Dec. Dig. § 394.*] The third paragraph of each count alleges that notice was given the defendant by the plaintiff by depositing on a named day (giving the day upon which the note described in that count became due) a notice, a copy |