part of the case to be passed upon on settlement by the trial court. Order reversed.

On an affidavit showing that on settling the case before him the

Opinion by Davis, P. J.; Brady and Daniels, JJ., concur.

AFFIRMATIVE OF ISSUE.

to insert the defendant's exceptions to the findings and conclusions and to the requests to find in the case, a motion was made on notice to the said justice out of court to strike out said exceptions from the printed case on appeal, and the justice made an order so doing. This order was entered in the clerk's office, and an appeal was taken from it.

J. T. Marean, for applt.
Geo. Carpenter, for respt.

Held, That the justice acting as such out of court had no power to make the order; that the return. on file in answer to the appeal was no longer subject to his direction; that the motion to correct the same should have been made to the General or Special Term.

That, moreover, under § 994 of the Code of Civil Procedure, the defendant had a right to file with the clerk, within ten days after entry of judgment and notice thereof, exceptions to the findings and refusals to find of the court; and it was proper, therefore, that the clerk should annex them to the judgment-roll as part of the papers to be returned; and it was not necessary that such written

TERM. FIRST DEPT. David Phillips, respt., v. Francis M. Brown, applt.

Decided Oct. 31, 1884.

The fact that a complaint alleges facts not essential for plaintiff to aver or prove, and that the same are denied by the answer, does not deprive the defendant of the affirmative if he is otherwise entitled to it.

Appeal from judgment entered on verdict.

The action was brought upon a promissory note. The complaint contains an allegation of ownership of the note, and this allegation was denied by the answer. All the material allegations of the complaint were admitted and an affirmative defence set up. Upon the trial the defendant claimed that he held the affirmative of the issue, but the court held that the plaintiff did so.

Buller, Stillman & Hubbard, for applt.

Abram Kling, for respt.

Held, Error. That the fact that the complaint alleged facts not essential for plaintiff to aver or prove, and that the same were denied by the answer, did not deprive the defendant of the right to

motion for a new trial on the minutes.

Action to recover brokers' commissions on a sale of real estate. The complaint alleges that plain tiffs are real estate brokers; that they were employed by defendant to sell certain real estate and personal property for him, he agreeing, in case they found a purchaser, to pay the usual commission of 2 per cent.; that plaintiffs procured a purchaser, to whom defendant sold said property for $13,000.

The answer denied the allega- | tions of the complaint in regard to the employment of plaintiffs, and also of the performance of any service for defendant.

On the trial E., one of the plaintiffs, gave evidence tending to establish the employment, and that parties to purchase came to plaintiffs' office to see about the purchase of the property, and asked witness about the property. He was then going on to give the conversation he had with them about the property, when defendant objected to the evidence, and the court sustained the objection. J. Esmond, for applts. E. Nottingham, for respt. Held, Error. It was important to establish what plaintiffs had done under the employment of defendant. Their acts in regard to effecting a sale of the property of defendant were proper. Their conversation with the purchaser was proper, with a view of ascertaining what they had done in the performance of their undertaking with defendant.

It was claimed that other wit. nesses gave evidence upon the point involved in the evidence which was excluded, and that the error was harmless.

Held, That plaintiffs were entitled to give all the evidence they had upon the subject, and that it does not appear from the case that plaintiffs were not prejudiced by the exclusion of the evidence.

Judgment reversed and new trial ordered, costs to abide event.

Opinion by Hardin, P. J.; Boardman and Follett, JJ., concur.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

John II. Shehan, respt., v. Mary Johnson, applt.

Decided Oct., 1884.

If there is enough legal evidence to sustain a judgment it should not be reversed because incompetent evidence of a cumulative character was received.

In an action for goods sold and delivered, a witness testified that during a specified time defendant bought goods of plaintiff to a specified amount; that she had made certain payments, and that there was a certain balance due. He then identified a copy of the account, which was read in evidence. Held, That the admission of the account was not error calling for reversal, as there was sufficient evidence without it to establish plaintiff's cause of action.

Appeal from judgment of County Court, affirming a judgment recovered in justice's court by default.

Action to recover for goods sold and delivered. Plaintiff's bookkeeper was the only witness sworn

before the justice. He testified in substance that defendant bought goods, consisting of liquors, of plaintiff during the year preceding the commencement of the action, amounting to $266.77; that she had paid at different times, on account, $135.59, and that there was due to plaintiff at the time of the trial a balance of $131.19. A copy of the account, commencing June 30, 1880, and ending June 28, 1881, and consisting of eleven items of charges and eight items of credits, was identified by the witness, who testified that he knew it to be correct, and was read in evidence.

It is claimed that the admission of the account in evidence was error for which the judgment should be reversed.

S. S. Morgan, for applt.
W. Kernan, for respt.

Held, Untenable; that defendant, by not appearing on the trial, waived all matters of form, 4 Den., 184, but did not waive any substantial right, 29 Barb., 523; 14 Wend., 159; she still had the right to insist that no judgment should be recovered against her unless a legal cause of action was established by legal evidence, 13 Wend., 85; but if there is enough legal evidence to sustain the judg. ment it should not be reversed because incompetent evidence of a cumulative character was received.

enough to establish plaintiff's cause of action against defendant. The copy of the account, therefore, was in the nature of cumulative evidence. It tended to identify the purchases for which the action was brought and to specify the dates and amounts of the separate sales. While this might be useful to defendant in case a second action should be brought against her on the same account, it was not necessary, as the aggregate of the purchases within the specified dates had already been proved. If the copy of the account should be stricken altogether from the evidence there would be enough left to sustain the judgment. The case, therefore, falls within the principle laid down in 5 Barb., 283, that where the fact in dispute is so clearly proved by competent testimony that the County Court would have been legally bound, had no improper testimony been admitted, to reverse a judgment adverse to such proof, then a judgment in accordance with such proof ought not to be reversed although improper testimony may have been admitted.

Judgment affirmed, with costs. Opinion by Vann, J.; Hardin, P. J., and Follett, J., concur.

CIVIL DAMAGE ACT.

The witness had sworn of his own knowledge to the amount of the sales and payments within a certain period of time. This was

TERM. FOURTH DEPT.

Margaret Rawlins, respt., v. Peter Vidvard, applt.

Decided Oct., 1884.

In a case brought under the Civil Damage Act against the owner of the premises the plaintiff cannot recover exemplary damages without proof of aggravating circumstances with which such owner is connected.

Appeal from judgment entered on verdict and from order denying motion for a new trial.

Action brought under the Civil Damage Act against defendant as owner of the premises on which the liquor was sold.

On the 27th of Sept., 1880, defendant owned certain premises in Whitestown, known as "The Yorkville House," which he had leased to one Mrs. B., knowing that she intended to use them for the purpose of keeping a hotel in which intoxicating liquors should be sold.

Plaintiff's testimony tended to show that she and her children were dependent on her husband's labor for support; that on the aforesaid day he became intoxicated; that such intoxication was caused wholly or in part by liquors sold to him by Mrs. B. or her agent, and that he was thereby rendered incapable of taking care of himself and fell from the loft of a barn on the premises, broke his arm and sustained other injuries which prevented his working until June 20, 1881; that he was without any property and earned from $1.20 to $1.35 per day. He was not in the habit of drinking to excess, but did occasionally, or once or twice a year. There was evidence tending to show that the barkeeper sold plaintiff's husband three drinks of whisky at short intervals; but it did not appear that he was

at all intoxicated until after he had swallowed the last of these drinks.

The only connection of defendant with the case, as shown by the evidence, was that he was the owner and had leased the premises as above stated.

The court charged the jury that plaintiff, if her case was made out, might recover exemplary damages, and refused to charge, as requested by defendant, that plaintiff's right of action, if she had one at all, was limited to her actual damages. The jury rendered a verdict for $150.

S. J. Burrows, for applt.
L. E. Goodier, for respt.

Held, That the charge and refusal to charge were erroneous; that in an action against the owner exemplary damages cannot be recovered without proof of aggravating circumstances with which such owner is connected. All statutes are to be construed with reference to the principles of the common law in force at the time of their passage, and all words having a well-known and definite meaning at common law are presumed to be used in the same sense when they appear in a statute. Dwarris on Stats., 564-5; Sedgw. Constr. Stat., 221; 3 Wash. C. C., 209. Exemp. lary damages at common law imply malice, bad motives, or evil intent on the part of the person against whom they are awarded. They are allowed, not to compensate the one who suffers the wrong, but to punish the one who inflicts the wrong on account of his evil design and as an example to others. See Bouvier; Burrill; Rapalje & L.;