Dissenting opinion by TRUAX, J.

negligent. That would give credence to him, when he said: "It happened so quick, I did not think she was out at all." This was, however, at variance with his testimony that she was out of his sight ten or fifteen, or even two, minutes, and his occupation in writing in his account three charges to customers, and also his action in searching for her. When he said the child was absent from his side not ten minutes-not two minutes I mean, I didn't think she was out at all so quick it was, the first part being merely negative and establishing nothing affirmative, the meaning of the whole is to be found in the latter part, with the implication that he could not categorically give the time. If it had simply appeared, on behalf of defendant, that a child of plaintiff's age, that needed positive restraint to keep her in safety, had gone into danger, when it also appeared that the use of ordinary means of restraint would have prevented her escape, the conclusion of law is, that ordinary means were not used, and a jury could not conclude otherwise. The testimony that has been particularly examined shows, that the plaintiff failed to overcome the presumption of law, by proof of sufficient explanatory facts, for the attempted explanation was incoherent, one part of it varied from the other. Indeed if the extrinsic circumstances, and the indubitable references from them, were to be considered to give weight to one or the other branch of the contradiction, the result would be unfavorable to the plaintiff.

My opinion is, that the judgment should be affirmed with costs.

DUGRO, J., concurred.

TRUAX, J., (dissenting).-I cannot concur with the conclusion reached by my associates. There is no evidence tending to show any negligence on the part

Statement of the Case.

of the plaintiff, while there is evidence tending to show that the defendant was negligent, and, therefore, the negligence of the child's parents, even conceding that the child's parents were negligent, is immaterial. Cumming v. Brooklyn City Railroad Co., 104 N. Y. 669. The evidence offered by the plaintiff shows that the driver was extremely careless in the method in which he drove through this street. I am also of the opinion that the question of the parents' negligence should have been submitted to the jury. Ames v. Broadway Railroad Co., 56 Super. Ct. Reports, page 3: Crystal v. Troy and Boston Railroad Co., 22 Weekly Digest, 551.

I do not see how we can hold, as matter of law, that it was negligence in the mother to let the child go out into the room where the father was; or that it was negligent for the father to take his eyes for a few moments from the child while it was with him in the house.

I am of the opinion that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

JOHN H. DRESLER, RESPONDENT, v. GEORGE M. HARD, IMPLEADED, ETC., APPELLANT.

Expert in handwriting, what testimony of, inadmissible—Estoppel, when necessary to plead. General exceptions to refusals to charge requests raises no question.

An expert in handwriting was called as a witness, and there was then exhibited to him a receipt, and certain other papers properly in evidence, and then he was asked to state, after comparing all the papers, but especially their dates, whether the date of the receipt was Jan'y 22d or July 22d, the evidence was excluded, Held, that it was properly excluded. When the matters which are relied on by a defendant to constitute an estoppel do not affect the issues as made by the pleadings as to the original obliga

Statement of the Case.

tion, they must be pleaded in order to give the defendant a right to offer testimony in support of them.

An exception to refusals to charge in the following form, "I except to the refusal of the court to charge each and every request submitted by me as requested that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance," raises no question for determination by the general term (per TRUAX, J.)

Before SEDGWICK, Ch. J., and TRUAX, J.

Decided June 28, 1889.

Appeal from judgment and from order denying motion for a new trial, made upon the minutes.

The complaint alleged that, about November 1, 1880, plaintiff agreed to purchase of defendants, and defendants agreed to sell and deliver to plaintiff, one thousand shares of a certain stock, for the agreed price of $4,000, payable in four months, for which sum of $4,000, and interest plaintiff gave to defendants his promissory note; that when that note became due, plaintiff paid to defendants $1,000, on account of principal and the interest on $4,000, to that date, and gave to defendants his promissory note for $3,000, at four months; that when this note became due plaintiff paid defendants $100, on account of the principal and the interest on $3,000, to that date, and gave his promissory note for $2,900, at three months; that when this note became due plaintiff paid to defendants $200, on account of the principal and the interest on $2,900, to date, and gave his note for $2,700, at three months; that when this note become due plaintiff gave to defendants, in renewal thereof, his note for $2,700, at four months; that when this note became due plaintiff paid defendants $700, on account of the principal and the interest to that date on $2,700, and gave his note for $2,000, at three months; that when this note became due plaintiff paid to defendants on account of the principal $250, and the in

Statement of the Case.

terest to that date on $2,000, and gave his note for $1,750, at three months; that all these payments were made and notes given by agreement between the parties; that the stock was originally to be delivered when the first note was given, but by agreements from time to time the delivery was postponed until November 18, 1882; that when the last of the above-mentioned notes became due, November 18, 1882, it was agreed between the parties that plaintiff should pay defendants $250, on account of the principal of that note and interest on $1,750, to that date, and should give his promissory note for $1,500, at three months, and that defendants should deliver to plaintiff the said shares of stock on or before the first day of January, 1883; and in case they failed so to deliver the same that the said sale should be considered cancelled and rescinded, and the said defendants should then return to this plaintiff the said note for $1,500, and repay to him the moneys so paid to them, as aforesaid, on account of such purchase with interest. That on the said first day of January, 1883, the said defendants, having wholly neglected to deliver to plaintiff the said shares in pursuance of said last mentioned agreement, this plaintiff demanded of said defendants the said one thousand shares of the Manhattan Refining Company's stock, and the said defendants wholly neglected and failed to deliver to plaintiff the said shares of stock on the first day of January, 1883, but then agreed and promised to return to the plaintiff the said note for $1,500, and promised to pay and return to him the said several sums of money so paid by him, as aforesaid, with interest, but had ever since wholly neglected and refused to pay the said money or any part thereof; that said note for $1,500 was not paid at maturity, but was renewed at defendants' request and further accommodation; that when said renewal note became due,

Appellant's points.

defendants paid on account thereof $250, and plaintiff, at defendants' request and for their accommodation, renewed the same for $1,250; that when this renewal note became due defendants paid on account thereof $500, and plaintiff, at defendants' request and for their accommodation, renewed the same for $700; that when this $700, became due, defendants neglected and failed to pay it or any part of it, and plaintiff paid the same in full, and prayed judgment for the several sums paid by plaintiff to and for defendants, with interest thereon from the dates of the respective payments.

Defendant Hard answered. By his answer he denied all the allegations in the complaint, and then set forth, as an affirmative defence, that on January 1, 1886, plaintiff and defendant Blauvelt had an accounting and settlement on which there was found due from Blauvelt to plaintiff the sum of $6,677.49; that Blauvelt delivered to plaintiff, and plaintiff accepted, in full settlement of said account, Blauvelt's promissory note, and that all matters set forth in the complaint, as well as other matters between said Blauvelt and plaintiff, were included in said settlement and the amount of the note.

The other facts sufficiently appear in the opinion.

Hayes & Greenbaum, attorneys, and Daniel P. Hayes of counsel for appellant, on the questions considered in the opinion, argued:

I. The court erred in refusing to allow the witness Carvalho to state whether, in his opinion, the date on the receipt, Exhibit B., was January or July. The witness being an expert it was proper, and violated no rule of evidence to ask him his opinion, he having compared this receipt with the note which was put in evidence upon a material point in the The jury were entitled to the benefit of his

case.