have been improperly influenced, or that the damages are excessive. Mahar v. Simmons, 47 Hun, 479; Shaw v. Railroad Co., 8 Gray, 46.

Defendant also claims that the court erred in not holding, as a matter of law, that the regulation prescribed by it, with respect to persons passing through the gates, was a reasonable regulation. If we assume that this was error, we think that it was cured by subsequent instruction to the jury. Counsel for plaintiff stated that he consented the court might charge the regulation was a reasonable one. Counsel for the defendant stated that he declined to accept the admission. Therefore the court said: “I will charge, if you request;" then followed a statement by the court “that the regulation regarding the admission of persons at the little gates was a reasonable and proper regulation." The criticism is that the court did not so charge unless counsel requested it, and that no request was made. We think otherwise; that the fair construction of the whole language is that the counsel had requested the court so to charge, and that the reply was made to counsel, so that the court should not misunderstand, and that the charge was made, counsel acquiescing therein. In this view no error remains.

We have examined all the other exceptions and rulings urged upon our attention, and find no error. The order denying a motion for a new trial is therefore affirmed, with costs.

TITUS, J., does not sit in this case.

BECKWITH, C. J., dissents, and is of

opinion that the verdict for damages was excessive.

RAUCH v. NEW YORK, L. & W. Ry. Co.

(Superior Court of Buffalo, General Term. July 13, 1888.)

RAILROAD COMPANIES-CONSTRUCTION OF ROAD-INJURY TO ADJOINING PROPERTY. In an action against a railroad company for damages caused by the construction of an embankment in front of plaintiff's premises, it is error to permit the question, "What has been the effect of the construction of the embankment upon the premises," as it calls for an answer to the very question which the jury is impaneled to try.

Appeal from trial term.

Action by Charles R. Rauch to recover damages for the construction by the New York, Lackawanna & Western Railway Company of a raised roadway or embankment opposite plaintiff's premises. Judgment was entered for plaintiff on the verdict of a jury, and defendant appeals.

Argued before BECKWITH, C. J., and HATCH, J.

John G. Milburn, for appellant. David F. Day, for respondent.

HATCH, J. The decision of this court upon the right of the plaintiff to maintain this action must be regarded as settled, and not now open to debate. The judgment rendered herein must, however, be reversed for errors committed upon the trial in the reception of evidence. The error arose upon the examination of the witness Jones, thus: "Question. What has been the effect on the property on Commercial street, in the neighborhood of the plaintiff, by the construction of the embankment?" Defendant objected, and the court said: "You had better confine your questions to the premises in question." Defendant's counsel then objected to the question on the ground that it was immaterial and improper, and called for a conclusion; that it was the province of the jury to determine the effect from the situation. The court overruled the objection, and the defendant excepted. Plaintiff then asked: "What has been the effect of the construction of the embankment in Commercial street and Water street upon the plaintiff's premises?" The witness answered: "I should think it had depreciated fully fifty per cent. or more. "Motion was then made to strike out the answer, which was denied, and defendant excepted.

We think the objection was well taken that the testimony should have been excluded. It is proper in cases of this character to permit the expression of opinion, by experts, as to the value of property without the obstruction and its value with the obstruction, and this to aid the jury in determining the damages which have accrued from the unlawful act. The question to which this testimony was directed, was that of damage sustained by the plaintiff. Of this question the jury were the sole arbiters. The value of the property was a question of fact; and the witness, when giving his opinion upon value, gives the results of his observation, experience, and knowledge upon that subject. It partakes of the character of fact depending upon the extent of knowledge possessed by the witness. From such opinion the jury may find a fact. The weight to be attached to the opinion is still a question for them. Bedell v. Railroad Co., 44 N. Y. 367, 370. Courts are not inclined to extend this rule beyond its present limits. The question permitted to be asked clearly exceeds it. To ask, "What has been the effect of the construction of the embankment?” is to allow the witness to determine that question; that is, the precise question which the jury were impaneled to try. When the witness is allowed to state his conclusion, nothing remains for the jury but to announce it, and we thus have, not the judgment of the jury derived from facts, but simply the opinion of the witness as to what the verdict should be. The witness so understood this question, as his answer was, "I should think it had depreciated fully fifty per cent. or more;" and the witness Kraft, in answer to a similar question, answered that, “I should think it is damaged onehalf." Courts have frequently condemned such testimony. Ferguson v. Hubbell, 97 N. Y. 507; Schwander v. Birge, 46 Hun, 66; Morehouse v. Mathews, 2 N. Y. 514; Paige v. Hazard, 5 Hill, 603; Allen v. Stout, 51 N. Y. 668. This court at the present term has held evidence of the same character inadmissible. Avery v. Railroad Co., ante, 101. Judgment reversed and new trial ordered, costs to abide event.

BECKWITH, C. J., concurs.

TITUS, J., does not sit in this case.

AVERY . NEW YORK CENT. & H. R. R. Co.

(Superior Court of Buffalo, General Term. July 13, 1888.)

1. TRESPASS-UNLAWFUL CONSTRUCTION OF FENCE-PLEADING—Amendment.

In an action for failure to maintain an opening to a hotel across a strip of land leading thereto, the complaint alleged that the damage was caused by defendant maintaining a fence across such strip. It appeared that defendant had the right to maintain such fence, but was required to keep open a gateway through the same. Held that, as the complaint included the space which was to be kept open, and alleged a breach, and as no application to make the complaint more specific was made, no amendment was necessary to support a recovery for failure to keep open such gateway, and that the court properly refused to direct a verdict for defendant. 2. SAME TRIAL-INSTRUCTIONS.

On the trial of such action the jury were properly instructed that, though defendant built a fence across such strip of land, if he maintained the required gateway plaintiff could not recover.

Appeal from trial term.

Action by John C. Avery against the New York Central & Hudson River Railroad Company, to recover damages for defendant's failure to maintain an opening across a strip of land leading to plaintiff's hotel. Judgment for plaintiff, and defendant appeals.

Argued before BECKWITH, C. J., and TITUS, J.

McMillan, Gluck & Pooley, for appellant. Hopkins & White, for respond

ent.

TITUS, J. Each of the judges of this court has been heretofore called upon to pass upon the principal questions raised on this appeal. We do not con

sider it necessary now to reiterate the reasons which seem to us sufficient to enable the plaintiff to maintain this action. We think that the request of the defendant to direct a verdict in its favor on the trial was properly denied by the trial court, and that no amendment to the plaintiff's complaint was necessary to entitle him to recover. The gist of the plaintiff's cause of action is the neglect of the defendant in not maintaining an opening on the 20-foot strip of land opposite the Exchange Hotel, for the convenient access of passengers and their baggage to and from their premises, as by the deed of conveyance from James S. Wadsworth to the New York Central Railroad Company, made in 1857, it had agreed and was required it to do. The court of appeals has held, in one of the cases heretofore tried in this court, "that while the defendant had a right to build a fence along this 20-foot strip, still it was required to maintain an opening on to this strip of a size reasonable, proper, and fit, opposite the hotel, and large enough for the convenient access of passengers and their baggage to and from said strip, and which should be at no time closed against them." 106 N. Y. 142, 12 N. E. Rep. 619. The fact that the complaint alleges that the plaintiff's damage was caused by the defendant maintaining a fence along the 20-foot strip cannot affect the plaintiff's right to recover under his pleading, so long as it includes the space mentioned in the deed, which was to be kept open. The greater includes the less. If the defendant had maintained an opening, such as, by the deeds of conveyance, it was required to do, then the plaintiff could not recover. It is for the neglect of the defendant to keep and maintain such an opening on the 20foot strip that the plaintiff can maintain his action, and it is of no consequence, so far as this question is concerned, that the plaintiff has alleged in his complaint that the defendant had utterly failed to comply with its agreement, and had built a fence the entire length of the 20-foot strip.

The jury were properly instructed as to the rights of the parties; that if the defendant maintained an opening, as by the deed it was required to do, the plaintiff could not recover, although it had built and maintained a fence along the 20-foot strip. The plaintiff perhaps might have more particularly indicated wherein the defendant had failed to comply with the agreements in the deed, but, if the defendant desired more specific information in that particular, he should have made application to the court to make the complaint more specific; and as he has not done so, and as the complaint does allege a breach of the covenant, it is too late for the defendant to complain. We cannot see that any error was committed by the trial court, either on the rulings, on the trial, or in the requests to charge. The order appealed from must therefore be affirmed, with costs.

HATCH, J., did not sit. BECKWITH, C. J., concurs.

WEST v. KURTZ.

(Common Pleas of New York City and County, General Term. June 4, 1888.) ATTORNEY AND CLIENT-PURCHASE OF BOND BY ATTORNEY-RIGHT TO MAINTAIN ACTION.

In an action by an attorney on a bond assigned to him, the issue was whether plaintiff bought the bond in violation of the statute forbidding an attorney to buy a chose in action for the purpose of bringing suit thereon. The court refused a charge for plaintiff, that if he received the bond as collateral for an advance of money, the transaction was not within the statute, and charged that the transaction was within the statute unless the bond was transferred without intention of bringing suit thereon. Held, that the charge and the refusal to charge were erroneous, as the statute is not violated unless the primary purpose of the transfer is to bring suit.

On motion for reargument.

Action on a bond brought by Albert F. West against Wm. Kurtz. Judgment for defendant, and plaintiff appeals.

Argued before LARREMORE, C. J., and DALY and ALLEN, JJ.

ALLEN, J. This is a motion for a reargument of the appeal from the judgment in favor of the defendant. The action was brought upon a bond by the defendant to one Henry Kurtz, which was assigned to Zimri West, and by him assigned to the plaintiff in this action. One of the principal questions litigated on the trial was the alleged taking of the bond by the plaintiff, who is an attorney at law, with the intention of bringing suit upon it. We think the motion for a reargument should be granted. We are led to this conclusion not because we think that any evidence was overlooked or that there was not evidence to support the verdict of the jury, but for the reason that we think the general term overlooked an exception by the plaintiff to the refusal of the trial judge to charge a request which presents a question decisive of the case. The request and exception to which we refer will be found at folios 119 and 120 of the case. The court was asked to charge that if the jury believed that the bond was transferred to the plaintiff as collateral for an advance of moneys made on February, 1885, that that took the transaction out of the operation of the statute respecting the bringing of suits by attorneys in their own name, and that the jury should find for the plaintiff on that branch of the case. The court refused to charge this request, stating: "I can hardly say that. It was not taken out of the statute unless transferred free from the intention of bringing the suit; and I think if so taken that it is right to charge as you request."

With this request and exception on the record, we cannot say that the case was submitted to the jury in strict accordance with the authorities. The authorities hold that the mere fact of the purchase of the bond, mortgage, etc., by an attorney is not evidence of a purchase "with the intent and purpose" of bringing an action thereon. Hall v. Bartlett, 9 Barb. 301; Bristol v. Dann, 12 Wend. 144; Moses v. McDivitt, 88 N. Y. 62. An attorney may purchase for investment or for profit, or for the protection of other interests, and the purchase is not made illegal by an intent to bring suit, if necessary, for collection. Moses v. McDivitt, 88 N. Y. 62. To constitute the offense, the primary purpose must be to bring suit, and the intent to bring the suit must not be merely incidental and contingent. Id. The purchase must be made for the very purpose of bringing such suit, and this implies an exclusion of any other purpose. Id. Now, in this case the defendant did not rely on the mere fact of purchase to prove the offense, but insisted that the facts showed that the plaintiff had not bought the bond for investment or profit or protection of other interests, but solely to bring the suit, and claimed that the proof showed it. The plaintiff, on the other hand, testified that there was an oral assignment of the bond to him in February, as security for a loan. It was a question for the jury whether he spoke the truth as to this transaction, and his credence as an interested party had to be submitted to the jury. The jury may not have believed him, as perhaps they did not; but we cannot positively say whether the jury found that the plaintiff took the bond for the sole purpose of bringing suit, (and we think there was evidence upon which they might have so found,) or whether they found, having in view the ruling of the trial judge, upon this request, that while the bond may have been transferred as collateral security for a loan of money, it was not so transferred free from the intention of bringing suit. We think a question decisive of the case was presented by this exception which was overlooked by the appellate court, and which justifies us in ordering a reargument of the appeal.

LARREMORE, C. J., concurred.

WOOLSEY et al. v. FINKE.

(Supreme Court, General Term, Second Department. June 25, 1888.) 1. SHIPPING-CHARTERING STEAMER-RESCISSION OF CONTRACT.

Plaintiffs chartered a steam-boat to defendant, who was to furnish the water, and agreed to run the boat according to a certain time-table. Defendant promised to fill the tank in ten minutes from his own water supply by a two-inch pipe. Plaintiff then made the boat pipes two and one-half inches. The pressure of defendant's water supply not being as great as he represented, the boat was so delayed in taking on water that she could not keep to her time-table. Held, that the delay was caused by defendant's fault, and he was not entitled to rescind the contract. 2. SAME-ABANDONMENT OF CONTRACT BY HIRER-DUTY OF OWNER-DAMAGES.

Use by the owner of a steam-boat which had been chartered for a certain length of time, after abandonment of the contract by the hirer, does not preclude the owner's recovery for the breach; such use being proper to prevent accrual of damages. Action by David C. Woolsey and others, owners of a steamer, against Hugo Finke, for damages for the rescission of a contract by defendant, chartering the steamer for a certain length of time. Judgment for plaintiffs, and defendant appeals.

Argued before BARNARD, P. J., and PRATT, J.

BARNARD, P. J. The plaintiffs chartered a steamer to the defendant under an agreement to make six round trips a day between New York and College Point. These trips were subsequently reduced to five, and the steamer made trips as required, with more or less regularity as to the exact time required by the defendant. The time the charter was to run was between the dates of May 21 and October 10, 1887. On the 31st of July, 1887, the defendant terminated the contract. The plaintiffs aver that they performed the contract, and the defendant claims to be legally entitled to discharge the steamer for a failure upon the part of its owners to carry out the agreement. The question presented depends upon a clause in the contract which is in these words: "The parties of the first part [plaintiffs] further agree to furnish said vessel, at their own expense, with a sufficient crew of not less than fifteen hands, and all supplies required by said vessel during the term aforesaid, except water the cost of which water, and all wharfage incurred by said vessel during the term aforesaid, the party of the second part agrees to pay." " Proof was given tending to show a failure to keep to the time-tables; and, in reply to this, the plaintiffs gave excuses to the effect that the vessel took in water at College Point; that the supply pipe was too small to fill the tank in less than from 30 to 35 minutes for short trips, and about and over three-quarters of an hour upon the long trips. It was stated, preliminary to the making of the contract by defendant, that the pressure on defendant's water-pipes was so great that the tanks could be filled in 10 minutes, and the time-table was made upon this basis. The defendant promised to continue the water to the dock. And, in arriving at the intent of the contract, the surrounding circumstances must be considered. The defendant was to pay for water, and make a pipe from his own supply, by a two-inch pipe, to a place where the vessel could receive it. The vessel made its pipes two and one-half inches, and could easily receive all which came through the plaintiffs' pipe. Under this state of facts a failure to keep the exact time-table on account of a failure to get the water in time was not a breach of contract by the plaintiffs, and gave defendant no right to rescind the contract.

After the plaintiffs were discharged, and as soon as with great diligence they could, they used the boat in other business, and earned with her a considerable sum of money, which is credited upon the damages. The defendant claims that the plaintiffs were bound to keep her idle, and always at defendant's command. This is not the rule. A party is both honorably and legally bound to exert himself so as to save the offending party from loss on account