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motion for a new trial on the It was claimed that other wit. minutes.

nesses gave evidence upon the Action to recover brokers' com- point involved in the evidence missions on a sale of real estate. which was excluded, and that the The complaint alleges that plain error was harmless. tiffs are real estate brokers; that Held, That plaintiffs were enthey were employed by defendant titled to give all the evidence they to sell certain real estate and per- had upon the subject, and that it sonal property for him, he agree-does not appear from the case that ing, in case they found a pur- plaintiffs were not prejudiced by chaser, to pay the usual commis- the exclusion of the evidence. sion of 2 per cent.; that plaintiffs Judgment reversed and new procured a purchaser, to whom trial ordered, costs to abide event. defendant sold said property for Opinion by Hardin, P. J.; $13,000.

Boardman and Follett, JJ., conThe answer denied the allega- cur. tions of the complaint in regard to the employment of plaintiffs, and

EVIDENCE. also of the performance of any service for defendant.

N. Y. SUPREME COURT. GENERAL On the trial E., one of the plain

TERM. FOURTH DEPT. tiffs, gave evidence tending to John H. Shehan, respt., v. Mary establish the employment, and

Jolinson, applt. that parties to purchase came to plaintiffs' office to see about the

Decided Oct., 1884. purchase of the property, and If there is enough legal evidence to sustain a asked witness about the property. judgment it should not be reversed because He was then going on to give the

incompetent evidence of a cumulative

character was received. conversation he had with them

In an action for goods sold and delivered, a about the property, when defend

witness testified that during a specified time ant objected to the evidence, and defendant bought goods of plaintiff to a the court sustained the objection. specified amount; that she had made certain J. Esmond, for applts.

payments, and that there was a certain

balance due. He then identified a copy of E. Nottingham, for respt.

the account, which was read in evidence. Held, Error.

It was important Held, That the admission of the account to establish what plaintiffs had was not error calling for reversal, as there

was sufficient evidence without it to estabdone under the employment of de

lish plaintiff's cause of action. fendant. Their acts in regard to effecting a sale of the property of Appeal from judgment of Coundefendant were proper.

Their ty Court, affirming a judgment conversation with the purchaser recovered in justice's court by dewas proper, with a view of ascer fault. taining what they had done in the Action to recover for goods sold performance of their undertaking and delivered. Plaintiff's bookwith defendant.

keeper was the only witness sworn

before the justice. He testified | enough to establish plaintiff's in substance that defendant bought cause of action against defendant. goods, consisting of liquors, of The copy of the account, thereplaintiff during the year preced- fore, was in the nature of cumulaing the commencement of the ac tive evidence. It tended to idention, amounting to $266.77 ; that tify the purchases for which the she had paid at different times, on action was brought and to specify account, $135.59, and that there the dates and amounts of the sepwas due to plaintiff at the time of arate sales. While this might be the trial a balance of $131.19. A useful to defendant in case a copy of the account, commencing second action should be brought June 30, 1880, and ending June against her on the same account, 28, 1881, and consisting of eleven it was not necessary, as the aggreitems of charges and eight items gate of the purchases within the of credits, was identified by the specified dates had already been witness, who testified that he knew proved. If the copy of the account it to be correct, and was read in should be stricken altogether from evidence.

the evidence there would be It is claimed that the admission enough left to sustain the judgof the account in evidence was ment. The case, therefore, falls error for which the judgment within the principle laid down in should be reversed.

5 Barb., 283, that where the fact S. S. Morgan, for applt.

in dispute is so clearly proved by W. Kernan, for respt.

competent testimony that the Held, Untenable ; that defend- County Court would have been ant, by not appearing on the trial, legally bound, had no improper waived all matters of form, 4 Den., testimony been admitted, to re184, but did not waive any sub verse a judgment adverse to such stantial right, 29 Barb., 523; 14 proof, then a judgment in accordWend., 159 ; she still had the ance with such proof ought not right to insist that no judgment to be reversed although improper should be recovered against her testimony may have been admitunless a legal cause of action was ted. established by legal evidence, 13 Judgment affirmed, with costs. Wend., 85 ; but if there is enough Opinion by Vann, J.; Hardin, legal evidence to sustain the judg. | P. J., and Follett, J., concur. ment it should not be reversed because incompetent evidence of a cumulative character was received.

CIVIL DAMAGE ACT. 13 Barb., 116; 5 id., 283 ; 3 Hun, N. Y. SUPREME Court. GENERAL 496.

TERM. FOURTH DEPT. The witness had sworn of his own knowledge to the amount of

Margaret Rawlins, respt., v. Pethe sales and payments within a

ter Vidvard, applt. certain period of time. This was Decided Oct., 1984.

In a case brought under the Civil Damage at all intoxicated until after he had Act against the owner of the premises the

swallowed the last of these drinks. plaintiff cannot recover exemplary damages without proof of aggravating circum

The only connection of defendstances with which such owner is con. ant with the case, as shown by the nected.

evidence, was that he was the Appeal from judgment entered owner and had leased the premises on verdict and from order denying as above stated. motion for a new trial.

The court charged the jury that Action brought under the Civil | plaintiff, if her case was made out, Damage Act against defendant as might recover exemplary damages, owner of the premises on which and refused to charge, as requested the liquor was sold.

by defendant, that plaintiff's right On the 27th of Sept., 1880, de- of action, if she had one at all, was fendant owned certain premises in limited to her actual damages. Whitestown, known as “The York. The jury rendered a verdict for ville House," which he had leased $150. to one Mrs. B., knowing that she S. J. Burrows, for applt. intended to use them for the pur

L. E. Goodier, for respt. pose of keeping a hotel in which Held, That the charge and reintoxicating liquors should be fusal to charge were erroneous; sold.

that in an action against the owner Plaintiff's testimony tended to exemplary damages cannot be reshow that she and her children covered without proof of aggravatwere dependent on her husband's ing circumstances with which such labor for support; that on the owner is connected. All statutes aforesaid day he became intoxi. are to be construed with reference cated ; that such intoxication was to the principles of the common caused wholly or in part by liquors law in force at the time of their sold to him by Mrs. B. or her agent, passage, and all words having a and that he was thereby rendered well-known and definite meaning incapable of taking care of himself at common law are presumed to be and fell from the loft of a barn on used in the same sense when they the premises, broke his arm and appear in a statute. Dwarris on sustained other injuries which pre- Stats., 564-5; Sedgw. Constr. Stat., vented his working until June 20, 221 ; 3 Wash. C. C., 209. Exemp. 1881 ; that he was without any lary damages at common law imply property and earned from $1.20 to malice, bad motives, or evil intent $1.35 per day. He was not in the on the part of the person against habit of drinking to excess, but whom they are awarded. They are did occasionally, or once or twice allowed, not to compensate the one a year. There was evidence tend- who suffers the wrong, but to puning to show that the barkeeper ish the one who inflicts the wrong sold plaintiff's husband three

three on account of his evil design and drinks of whisky at short intervals; as an example to others. See Boubut it did not appear that he was I vier; Burrill; Rapalje

Rapalje & L.;

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were

Browne Com. L., 855 ; 1 Suth. on bad motives. He leased his premDam., 715 ; 1 Sedgw. on Dam., ises for a lawful purpose. 5 Hun, 7th ed., 53; Field on Dam., 28; 530. His tenant had a license, 64 N. Y., 440; 56 N. H., 456 ; 13 granted under the laws of the State, How., U. S., 371 ; 2 Wils., 205 ; 4 and so far as appears kept an orWend., 113; 7 Hill, 207.

derly and respectable hotel. No If the legislature, in enacting the aggravated circumstances statute in question, instead of shown with which defendant was using the words “exemplary dam- directly or indirectly connected. ages” had used the common law If the sale of three glasses of definition of those words they whisky to the same person within would have expressed precisely a few minutes would authorize an what the statute means now. 26 award of exemplary damages in a Hun, 608. When thus construed case against a tenant, it would not it does not mean that the jury may in a case against the landlord award exemplary damages in any without further proof. The percase, but only when the defendant son against whom exemplary dam. has acted from bad motives. If, ages are allowed must be connected for instance, in an action against with and in some way responsible the one who sold the liquor that for the aggravating circumstances caused intoxication from which that authorize the award. See 8 actual damages were sustained, it Hun, 112 ; 28 Mich., 496 ; 30 id., appeared that he sold in violation 492 ; 9 Neb., 304; 71 Ill., 241 ; 76 of law, or to a person whom he id., 222. knew to be far gone in the habit of Neu v. McKechnie, 95 N. Y., intemperance, or who was already 632; Hackett v. Smelsley, 77 Ill., obviously under the influence of 109 ; and Schneider v. Hosier, 21 liquor, or who habitually squan. 0., 98, distinguished. dered in dissipation the wages with Judgment and order reversed which he should support his fam. and new trial granted, costs to ily, the jury might well infer that abide event. he acted from bad motives and

Opinion by Vann, J.; Hardin, award exemplary damages. Also, P. J., and Follett, J., concur. in an action against the owner of the premises, if it appeared that he leased them to a tenant know. FALSE IMPRISONMENT. JUS

TICE OF THE PEACE.

. ing that he kept a disorderly place, or sold without a license, or to N. Y. SUPREME COURT. GENERAL minors or habitual drunkards,

TERM. FIFTH DEPT. there would be a basis upon which the jury might allow exemplary

John A. Campbell, respt., v. damages against him.

Edmund Kelly, applt. But in this case there is no evi. Decided Oct., 1884. dence from which the jury could

A justice of the peace who unlawfully issues infer that defendant acted from

a body execution against a party is liable

in damages for his unlawful arrest by the power of the officer and submits to constable.

his assumed authority without No force or manual touching of the body is necessary to constitute an arrest and im- there being any force or actual prisonment, but it is sufficient if the party touching of the body, and that is within the power of the officer and sub- the evidence was sufficient to susmits to it.

tain the verdict rendered. 1 Appeal from judgment entered Wend., 210; 2 T. & C., 224; 14 upon verdict.

W. Dig., 384. Action to recover damages for Judgment affirmed. false imprisonment. Plaintiff had Opinion by Corlett, J.; Smith, brought a suit before defendant, P. J.; Barker and Bradley, JJ., who was a justice of the peace, to concur. recover for medical services, but before the adjourned day he in

CONTRACT. formed the justice that he wished to withdraw the suit, and asked N. Y. SUPREME COURT. GENERAL him the amount of the costs;

TERM. FIFTH DEPT. plaintiff then paid the constable's

Mary A. Nundy, respt., v. fees and afterward sent the

James N. Matthews, applt.. amount of the justice's fees by a third person, who paid it to the Decided Oct., 1884. justice. Afterward, defendant

Where the offeree either in words or in effect issued a body execution for the

departs from the proposition, or varies the costs and delivered it to a stranger, terms of the offer, or substitutes for the who delivered it to the constable. contract tendered one more satisfactory to Plaintiff testified that the con

himself, there is no assent and no contract,

unless the offerer actually signifies his as. stable said to him that he had a

sent to the proposition as modified or varicd. body execution against him, that An actual forbearance of the debt for the it must be paid, that no further time specified in the modified acceptance of time would be given, and that he

the offeree, but without any communica

tion of assent to give such time, is not sufplaced his hand upon the plain

ficient to constitute a contract and render tiss; that plaintiff submitted to

the offeree liable. the arrest, and refused to pay the A subsequent recognition by the parties that execution. There was a conflict a valid contract existed between them is of evidence as to what occurred at

not, of itself alone, material, unless in fact

such a contract had actually been made. the time of the alleged arrest. John J. Snell, for respt.

Appeal from a judgment renGeorge W. Lamb, for applt. dered on the report of a referee.

Held, That defendant was liable Action to recover upon a written in damages for the consequences promise or offer to pay the debt of resulting from the unlawful issu one Wells, against whom plaintiff ing of the execution.

had recovered judgment to the Held also, That it is enough to amount of $3,000. Plaintiff wrote constitute an arrest and imprison to defendant that, “The time has ment that the party is within the expired that you wrote me you

Vol. 20.-No. 7b.

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