Hun.] FIFTH DEPARTMENT, JUNE TERM, 1894. which, under the authority of the statute, the city of Boston has assumed for the benefit of the public, and from the performance of which no profit nor advantage is derived either by the trustees or the city." (Hill v. City of Boston, 122 Mass. 344; Ulrich v. City of St. Louis, 112 Mo. 139; Sherbourne v. Yuba Co., 21 Cal. 113; Kincaid v. Hardin Co., 53 Iowa, 430.) There are many other authorities sustaining the same doctrine, but it is not necessary to refer to more of them. Plaintiff's counsel concedes the correctness of the general rule as above stated, but he seeks to distinguish this case from the cases cited; he claims that the defendant was managing this asylum for its own benefit and advantage, and calls our attention to the case of Hannon v. The County of St. Louis (62 Mo. 313) as an authority. sustaining his contention. In that case the city of St. Louis had contracted with one Lukan to lay a water pipe along certain streets through the grounds of the county insane asylum, in order to supply the same with water, and the plaintiff was injured by the negligence of the defendant while in the employ of the contractor. In discussing the case the court affirmed the doctrine that quasi corporations, created by the Legislature for the purpose of public policy, are not responsible for the neglect of duties enjoined on them unless the action is given by statute, but held that it had no application to a case where a special duty is imposed upon the quasi corporation with its consent, express or implied, and stated that, "In the case at bar the county of St. Louis was not engaged in the discharge of duties imposed alike by general law on all counties; duties whose performance, if neglected, might have been enforced by appropriate procedure for that purpose, but in the discharge of a selfimposed duty not enjoined by any law. And the test of the matter is this: that the county could not have been compelled to enter on the work for whose performance it contracted." That case, we think, can be distinguished from this. Here the defendant was engaged in the performance of a duty imposed upon it by statute, to wit, the support and care of its insane, a duty imposed upon every county in the State. It could discharge that duty either by employing the State to care for its insane, or care for them in an asylum within its own borders. In either case it was discharging a duty imposed upon it by law. 79h 128 50ad129 FIFTH DEPARTMENT, JUNE TERM, 1894. [Vol. 79. We are of the opinion that the plaintiff failed to make a case entitling her to a verdict; the defendant's motion for a new trial should be granted, with costs to abide the event. DWIGHT, P. J., HAIGHT and BRADLEY, JJ., concurred. Defendant's motion for a new trial granted, with costs to abide the event. In the Matter of the Probate of the Will of SARAH R. TORKING- Evidence inadmissible under section 829 of the Code of Civil Procedure- decree admitting a will to probate · when not reversed for error in the rejection of evidence. The evidence of an heir at law of a testatrix in a contested proceeding relating "To the Hon. Joseph A. Adlington, Surrogate of Monroe County: I, George W. The witness testified that he executed such instrument, but there was no proof Held, that the instrument did not qualify the witness to give his testimony where APPEAL by Emma J. Chapman, one of the legatees named in the last will of Sarah R. Torkington, deceased, from a decree of the Surrogate's Court of the county of Monroe, entered in the office of Hun.] FIFTH DEPARTMENT, JUNE TERM, 1894. the clerk of the Monroe County Surrogate's Court on the 27th day of December, 1892, admitting to probate the will of the said Sarah R. Torkington, deceased, as a valid will of real and personal property. John R. Fanning, for the contestant, Emma J. Chapman, appellant. George A. Carnahan, for the executrix, Laura M. Wackerman, respondent. Lewis, J.: The will of Mrs. Torkington was offered for probate by the executrix, Laura M. Wackerman. Emma J. Chapman, a daughter of the testatrix, contested the probate of the will upon the grounds that the testatrix was, at the time of executing the will, of unsound mind, memory and understanding, and was not competent to make the will; that it was not her free, unconstrained, voluntary act, and that it was not executed in conformity with the requirements of the statute. The proof in favor of probating the will was so clear and satisfactory as to leave scarcely a doubt as to its being the will of the testatrix, and that the formalities of the statute were fully complied with in its execution. ness. The contestant called her brother, George W. Rumble, as a witHe was a son and heir at law of the testatrix. The contestant offered to show by the witness that he was present on the morning of the day the will was executed, and saw the person who was in attendance upon the testatrix administer to her an opiate called upon the trial a suppository. The testimony was objected to by the proponent; upon the ground that the witness was not competent to testify to the transaction under section 829 of the Code of Civil Procedure. The objection was sustained. The contestant duly excepted. Her counsel thereupon produced an instrument in the words and figures following: "To the Hon. JOSEPH A. ADLINGTON, Surrogate of Monroe County: "I, George W. Rumble, one of the legatees, heirs at law and next of kin of Sarah R. Torkington, deceased, do hereby renounce and release all my interest of whatsoever name and nature in and HUN-VOL. LXXIX. 17 FIFTH DEPARTMENT, JUNE TERM, 1894. to the estate of said deceased as legatee or otherwise. hand and seal this 27th day of December, 1892. [Vol. 79. Witness my "GEORGE W. RUMBLE. [SEAL.]" Rumble testified that he executed this instrument. No releasee is named in the instrument, and there was no proof that it had ever been delivered to any one. The surrogate held that the instrument did not qualify the witness to give the testimony. The contest being made upon the ground of the incapacity of the testatrix to make a will, and there being, as we think, no valid release proven, the testimony was properly rejected. (Eighmie v. Taylor, 68 Hun, 573.) But if it should be held that the evidence was competent, and that its exclusion was error, it was, we think, under the circumstances of the case, a harmless error, for an examination of the evidence satisfies us that had it been admitted the result of the contest would have been the same, for the due execution of the instrument having been so clearly and satisfactorily proven, this evidence, had it been admitted, would not probably have affected the result. The appellant was not, therefore, prejudiced by the exclusion of the evidence offered. It is provided by section 2545 of the Code of Civil Procedure that a decree of a surrogate admitting a will to probate shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. The decree appealed from should be affirmed, with costs of this appeal to be paid by the contestant personally. DWIGHT, P. J., HAIGHT and BRADLEY, JJ., concurred. Decree of the Surrogate's Court of Monroe county appealed from affirmed, with costs to the respondent, to be paid by the appellant personally. Hun.] FIFTH DEPARTMENT, JUNE TERM, 1894. WILLIAM MILLER and Others, Respondents, v. ELIJAH BOYER, Action on a Bohemian seed grain promissory note — plaintiff must show that he is a bona fide purchaser for value before maturity- veracity of testimony a question for the jury. In an action brought upon a promissory note known generally as a Bohemian seed grain note, by the assignee thereof, the burden of proof is upon the plaintiff to show that he is a bona fide purchaser of the note for value before maturity. When upon the trial of an action a party thereto testifies as a witness, the veracity of such testimony is to be determined by the jury, and such testimony should be submitted to the jury for its determination, unless the testimony of such party is corroborated as to its material facts by testimony coming from a disinterested source. APPEAL by the defendant, Elijah Boyer, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 21st day of June, 1893, upon the verdict of a jury directed by the court after a trial at the Monroe Circuit, and also from an order made at the Steuben Special Term and entered in the office of the clerk of Monroe county on the 9th day of January, 1894, denying the defendant's motion for a new trial made upon a case containing exceptions. Quincy G. T. Parker, for the appellant. Elbridge L. Adams, for the respondents. LEWIS, J.: This action was brought upon a promissory note for $100, given by the defendant, payable to W. J. Curtis or bearer for seed grain. It is what is generally known as a Bohemian seed grain note. The defendant concededly made the note, but claims it was obtained from him by fraudulent means, and that the plaintiffs are not bona fide holders thereof for value before maturity. The note was obtained from the defendant by an agent of a Pennsylvania seed company. It is not necessary to rehearse the means resorted to to obtain the note. They were substantially the same as have been stated so many times in these Bohemian note cases decided by this court. 79 131 85 571 79 131 23ap 29 |