. Also held, (Allen, J., dissenting), That there is a distinction between the eservation of the question as to the effect of evidence and a reservation as ter kind must be considered upon review the same as if an objection had been made and overruled, and the referee's decision excepted to. evidence offered by plaintiffs. The referee reserved his decision, in several instances, until the close of plaintiffs' evidence, when he proceeded to dispose of the objections raised. He refused to its admissibility. A ruling of the latto decide as to the persons affected by some portions of the evidence, holding that these questions could only be de termined when the who e evidence was in, and to that extent overruled defend- The practice of reserving a decision ants' objection. An exception was as to the admissibility of evidence taken by their counsel, who claimed when objection is taken is not to be that they were entitled to an absolute commended. 45 N. Y. 804. ruling. Upon one of the rulings of the A memorandum was offered in evireferee reserving his decision, defend- dence by plaintiffs and received. Deants' counsel excepted to the reserva fendants' counsel objected to it, that it tion. The referee subsequently made was not evidence against any of the similar rulings declining to decide parties but defendant B. or against any against which defendant the evidence member of the firm of L. C. & Co., exwas allowed, and at the close of the cept C., and that it was proved that the testimony he declined to decide any of contract was outside of the memoranthe questions thus reserved, stating that dum. The referee reserved his decisthis would be determined on the decision as to the first two grounds and overion of the case. ruled the objection as to the third The evidence in regard to which the ground. Defendants subsequently referee reserved his decision, affected moved to strike out this evidence, and the most important issues in the case, the motion was denied. The memozanand the principal question involved, dum related to the terms of purchase which was the joint liability of all of of the F. Coal Company, and sta ed the defendants for the indebtedness the amount of capital stock, the numto recover which the action was brought. It could not always be determined, when the evidence was offered, whether it affected one or all of the defendants. It was conceded that the testimony was proper as against one or more of the defendants. Chas. F. Southmayd, for respts. Waldo Hutchins, for applts. Held, (Allen, J., dissenting), no error. That unless it appeared that the defendants' interests or rights were affected injuriously by the referee's action, no rule of law was violated, and the referee was authorized to use his discretion in reserving his decision. ber of shares, the price, and that cash was to be paid upon delivery, and that L. and G. were to have a certain number of shares, which were named, at cost. The evidence tended to show that at the time the sale was made B., one of the defendants, made the memorandum which was found among his papers, and read it over to those who were present inquiring whether it was correct or whether the parties, who were present, should take the stock which was then sold. It was not offered to refresh the memory of the witness. Held, (Allen J., dissenting), That the evidence was not admissible in that At the sale the property was purchased by the respondent, Amos F. Eno, for the sum of eighteen thousand sixteen hundred dollars. It appeared by the affidavit of one M., who for the point of view, and the rule applicable dollars, and there was due upon the to such a case cannot be invoked, nor judgment at the time of the sale over was it competent alone as the contract thirty-five thousand dollars. of the parties, but it was evidence which corroborated and confirmed the oral proof, as it coincided with it as to the terms of the contract. The two together showed what the contract was, and there could be no valid objection defendant, and with the consent of the where an oral contract has been made plaintiffs, endeavored to find a purto prove that its principal terms were chaser for the premises at private sale, written down and a memorandum made that George W. Pell had agreed to of them and read at the time. take the property and pay the sum of twenty-one thousand five hundred dollars for it, and that he was still willing to pay that amount, and that he was prevented from attending the sale by the mistaken assurance given him that the property would be sold at private sale. Judgment of General Term, affirining judgment on report of referee, af firmed. Opinion by Miller, J. RESALE OF MORTGAGED PREMISES. On the morning of the sale the de N. Y. SUPREME COURT. GEN'L TERM, fendant, Cudlipp, states that he inform FIRST DEPARTMENT. John D. Phillips and another and Amos F. Eno, respts., v. Reuben H. Cudlipp, impl'd, &c., applt. ed Mr. Cohen, one of the plaintiffs, who was present when it was made, of the offer made by Mr. Pell, and he swears that the plaintiffs' attorney, B., then replied "that it would be better to let the property be sold, let Cohen buy A re-sale of premises under a decree of it in, and, "we could then carry out any foreclosure will be directed upon Decided May 1, 1876. equitable terms when the first sale is equitable arrangement afterwards." made in such manner as to prevent And that trusting to that understanda fair competition, or where for any ing he took no further interest in the cause it would be inequitable to per- matter, and supposed the property was mit the sale to stand. struck off to Cohen. An order denying application for a resale of mortgaged premises affects a "substantial right" as same has been construed, and is appealable to the General Term, although involving the exercise of discretion. Appeal from order denying motion for a re-sale of mortgaged premises. Appellant was the owner of the equity of redemption in premises sold under a judgment recovered January 7th, 1876, in an action to foreclose a mortgage. The premises cost the defendant about the sum of fifty thousand The affidavit of Scott shows that the defendant understood that to be the arrangement, and that no further attention was given to the sale for that rea son. Some of the foregoing statements were modified and changed by counter depositions, but from such depositions confidence by the person making them it appears that there was great want of as to what was said on the morning of the sale, and there were various circumstances in them to support the fore going statement of the occurrence as by the purchaser within ten days after the correct one. N. B. Hoxie, for applt. Henry Day, for respt.. notice of this decision, and the adjustment of such costs and expenses, and in case such payment shall not be so made, then the motion should be depros-nied with $10 costs. Held, That while the mere pect that the property upon a re-sale would bring a larger price is not suffi cient to order a resale, although it as an important circumstance, yet the facts shown here present a case of surprise on the part of the defendant produced at least by a failure on the part of the plaintiff's attorney to express himself in such a manner and with sufficient clearness, as to avoid misunderstanding as to what was designed to be done with the property at the sale. Under the rule sustained by the authorities defendants should be relieved in order to secure fair dealing and promote what the facts show to be just and right in the disposition of this property. The misunderstanding can be corrected in no other way. Duncan v. Dodd, 2 Paige 99; Brown v. Frost, 10 Id., 243; 25 How. 403, 406-7; King v. Platt, 37 N. Y. 155. Held further, That the order made affected a substantial right, as that phrase has in all the later cases been construed by this court and the Court of Appeals. And an appeal from it could be taken to the General Term, even though it depended upon the exercise of discretion. That circum stance only prevents an appeal to the Court of Appeals. It does no affect the power and jurisdiction of this court. The order should be reversed with $10 costs and disbursements, and an order entered directing a re-sale of the premises on payment by the defendant of the costs of opposing the motion and the costs and expenses of the sale already had, with interest on the deposit Opinion by Daniels, J.; Davis, P. J. and Brady J., concurring. DIVORCE. PHILADELPHIA COMMON PLEAS Sowers v. Sowers. Decided June 10, 1876. Where a husband writes a letter to an absent wife, who is residing with her parents, that he will not receive her, and she does not return and try to ob tain admission, it is not such a turning out of doors as will entitle her to a divorce. This is a proceeding for divorce, a mensa et thoro; it is instituted by the wife, Josephine G. Sowers, by her next friend, against her husband, William H. Sowers, to whom she was married at Georgetown, in the District of Columbia, on the 19th of May, 1870, and who immediately after her marriage removed to Germantown, the residence of her husband, where, as man and wife, Mr. and Mrs. Sowers continued to reside until the 24th of December, 1873. Mrs. Sowers testifies that on that day she went from Germantown to Georgetown, to make a visit to her friends, and that she has never returned to her home in Germantown. The reasons for remaining separate from her husband are, that the respondent turned her out of doors, and that he offered such indignities to her per-on as to render her condition intolerable and life burdensome; thereby forcing her to withdraw from his house and family. The answer of the respondent expressly denies both allegations; a large amount of testimony has been taken in Mr. Sowers, which, if correctly stated, support on the one hand, and in denial accounts satisfactorily for his failure to on the other, upon the vital questions meet Mrs. Sowers, in accordance with which are presented by the libel and his usual habit on such occasions. the answer. The most serious and important of Under the second head of legal justi- all the charges under this head, which fication in separating herself from her are made by the wife against her hushusband, the libellant charges against band, grew out of his letter to her of him, that he insulted her by false, February 3d, 1874, and his refusal to slandours and opprobrious epithets. contribute means of support to his wife That he at various times and for long and child. Mrs. Sowers had been abperiods of time refused to speak to her; sent from her home from the 24th of that when absent from him he neglected December, 1873, on a visit to Georgeto write to her. That he neglected to town. On January 1st, 1874, she inmeet her at the depot on one occasion formed her husband by letter of her on her return from a visit to George-intention to return to him on the 5th of town. That he addressed insulting that month. The material portions of letters to her; and that he has neglected respondent's letter begins with the third her since she has become a mother, in refusing to receive her into his honse, and in not contributing means for the support of herself and her child. The child was born at Georgetown, after the libellant last left the home of her husband on the 24th of December, 1874, and has never been seen by the respond ent. On her return from Georgetown defendant neglected to meet her at the Germantown Junction, several miles from her home. Smarting under the irritation of the seeming neglect, instead of going to her home, after so long an absence from it, and seeking an explanation from her husband, if one was required, for this omission of an paragraph, in which he writes: “I * * * To this letter Mrs. Sowers did not reply, but her brother wrote to the respondent immediately on the receipt of it, saying: "She will now remain with those who know how to appreciate accustomed attention on his part, she her," and asking that her individual turned away from her home, when al- property, clothing, &c., should be sent most at its door, and sought the protec- her. The decision of Mrs. Sowers to tion of acquaintances in the city, send- remain in Georgetown is placed by her ing no word, until the next morning, brother on the ground of a refusal of where she was, though she knew her Mr. Sowers to receive his wife into his return was expected that evening, the house. From that time all direct comtestimony showing that preparation had munication between the libellant and been made for her reception. This is the respondent ceased. She did not aside from the explanation given by write to him informing him of the birth of of their child, though her physi- ent have placed such opposing interprecian did; and the respondent asserts, tations. If the conduct of the respondand makes it one of his causes of com- ent is to be judged by the letter of the plaint, that when she left him, on the 5th day of February, it falls very far 24th of December, he did not know below the facts proved in the case of that she expected to become a mother, May v. May. We have the oath of the asserting that she had kept from him. respondent in support of the allegation all knowlege of her situation. This asthat no more was meant by the expressertion of the respondent was denied by sion than that he would not meet her the libellant, and in connection with at the junction as he had done on all this denial she charged against her husprior occasions, except the one to which we have referred, and that all accustomed privileges in the home of his mother, which was his home also, were band, as an act of cruelty, that he had made no inquiries about her or her child. In her testimony she says: "He has never contributed one reserved for his wife; that her room penny towards the support of either of was prepared for her reception, and had us—he has never visited either of us." been kept awaiting her return ever Allison, J.-In May v. May, 12 P. since. Whether this is a correct exF. S. 206, in support of the demand of planation of the declaration that he the libellant in this case, the question would not receive his wife, we have no of actual turning out of doors was not means of determining, except the oath raised. The husband's proposition was of the respondent, and the qualifying to allow his wife to return to his house statement in the letter, that "by the and occupy a small sleeping room, have laws of my State I cannot refuse you the care of her children and eat at his admittance." The libellant, placing table, but on the condition, that she her own construction on this letter, has was denied all control of the house, thought proper to rest upon that conwas required to take a position in the struction, and to remain in Georgetown family subordinate to a servant who separate and apart from the respondent. had treated her unkindly. This in con We have no case in Pennsylvania, in nection with proof that he whipped her which the suit of the wife was mainwith a cow-hide, treated her with cruel- tained on the ground that she was turnty and neglect in her confinement, in- ed out of doors, where it was not shown flicted personal violence, which was that the wife was ejected by force, or evidenced by her screams and the marks was compelled to leave because of a upon her person, was all submitted to threat to employ it, and a reasonable the jury upon the question of infliction apprehension that it would be used of indignities to the person which just- against her; or a refusal to receive her ified the wife in withdrawing from the upon demand that she should be taken family of her husband. These facts into her husband's home as as a wife; make out a case widely different from or an emphatic refusal to allow her to that of the libellant, who never mani- remain and "behave herself as fested a desire to return to her husband, nor has she askel an explanation of the letter upon which libellant and respond a good wife ought to do." Or lastly, where the facts did not show a justification on the part of the wife, in withdrawing from |