taken place was found some paper, ing judgment of conviction and grantwhich the District Attorney cliamed ing new trial, affirmed. was the wadding with which the gun Per curiam opinion. All concur, was loaded. This alleged wadding except Folger and Andrews, JJ., abwas produced at the trial, and a wit- sent. ness, who stated that he had used fire arms a great deal, and was familiar RESTITUTION. TERM. FIRST DEPT. Jesse A. Marshall, respt., v. Frederick A. Macy, applt.. Decided November 6, 1879. with the appearance of wadding shot N. Y. SUPREME COURT. GENERAL from a gun, was asked this question, "You may answer whether that (the paper found as stated) had that appearance or not?" The witness answered, "Yes, sir. It had the appearance of being wadding shot from a gun," and the only fact he stated to show this was that it was burned. The question and the answer to it were objected to by the prisoner's counsel, on the ground that the subject was not one of science or skill, and the opinion of the witness was incompetent and improper; that the paper and its appearance should have been described and the jury should draw the inference. The Court overruled the objection and an exception was taken. The General Term held that the exception was well taken. R. C. Titus, for plffs. in error. error. Judgment was recovered herein by plaintiff which was paid, and thereafter the judgment was reversed and a new trial ordered. Thereupon a motion was made for restitution. Upon such motion it appeared, that after the reversal of the judgment the plaintiff had placed the cause upon the calendar, and had taken an inquest by default. Defendant claimed in reply that such judgment by default was void for the reason, as he claimed, that no notice of trial had been served. Held, That the defendant must resort to Special Terms to get rid of the default and judgment if they are erroneous, before this motion for restitution should be granted. Motion for restitution. A judgment was recovered in this court by plaintiff and the money paid thereon. Afterwards such judgment was reversed in and a new trial ordered. Thereupon a motion was made for restitution, but Held, That the question is a border it appeared upon such motion that one, and that the competency of the since the money was paid upon the evidence is not free from doubt; that former judgment, and since the new ordinarily this Court would hesitate trial was ordered in the action, the much before reversing a judgment for plaintiffs had proceeded to replace the the reception of such evidence, but case on the calendar, and have taken as the General Term has reversed the an inquest therein against the defendconviction and granted a new trial ant, and have now a new judgment and the competency of the evidence being so much in doubt, and the case being one where capital punishment would be inflicted, the defendant in error should have the benefit of the doubt. against him for the amount paid. It appeared from the defendant's affidavit that no notice of the trial was ever served upon the attorney for the defendant, and it is claimed that the judgment taken by default is wholly Judgment of General Term, revers- void, W. Watson, for the motion. Held, We cannot determine upon this motion that the judgment is void. The defendant must resort to the Special Terms to get rid of the default and judgment if they are erroneous before this motion for restitution should be granted, for if the judgment taken upon the inquest remains undisturbed the plaintiffs are entitled to apply the moneys already paid upon the judgment, and the motion for restitution will of course be denied. Motion denied but under the circumstances without costs, without prejudice to a new motion if and after the judgment by default shall have been vacated by the Special Term. Opinion by Davis, P. J. Jonathan Ogden, respt., v. Jeremiah Devlin applt., and another. Decided November, 1879. A client has the right at any time to change his attorney even where no fault is alleged, and the matter is conducted to the satisfaction of the client. In such case, before the substitution is ordered the client must pay the attorney in full before the court will make an order of substitution, and may order a reference for such purpose. Where the court below refuses to make the proper order in the premises, the court on appeal at General Term may direct the form and conditions of the order, the same as the court below should have done. The defendant simply wished to change his attorney of record in this case. No complaint was made against the attorney. On the contrary the correspondence that passed contains the acknowledgment of the client, that the object for which the benefi of his services was required, has been accomplished. The motion was denied at Special Term, and defendant appealed. H. B. Bradshaw and J. S. L. Cummins, for plff. Frank J. Dupignac, for deft. Held, That in such a case the court will respect the wish of the client, but will impose as a condition, that the attorney shall be fully paid for his services. The order appealed from should be reversed and defendants' motion granted by the entry of an order providing that it be referred to a Referee to ascertain and determine what amount, if any, is due to the attorney of record for his services rendered as attorney and counsel, and that upon the coming in and confirmation of the report and the payment by the defendant of the amount so reported due, and the expenses of said reference, the attorney designated by the defendant be substituted in the place and stead of the present attorney of record. Opinion by Freedman, J., Curtis, Ch. J., concurred. RESCISSION OF CONTRACT. N. Y. SUPREME COURT., GENERAL TERM. FIRST DEPARTMENT. Samuel Schiffer, respt., v. John G. Dyetz, applt. Decided November 6, 1879. A. conveyed real estate to B. by a full covenant warranty deed, and suppressed the fact of his marriage. The wife of the grantor did not join in the deed, and the grantor knew, at the time of the grantee's ignorance, of the fact of his marriage. Held, That fraudulent suppression of the marriage gave the grantee the right to rescind the conveyance and to be restored to his position prior to entering into the contract, and that this right was not taken away by his delay in rescinding the contract, which delay was Opinion by Brady, P. J.; Daniels solely caused by the grantor's promises to and Ingalls concurring. make the title good, which promises were never carried out. REFEREE; NEW TRIAL BY. Defendant sold real estate to plain- N. Y. SUPREME COURT. GENERAL tiff, giving a full covenant warranty deed, signed by himself alone, and TERM. FIRST DEPARTMENT. Henry M. Whitehead, respt., v. The reversal of a judgment and order of new trial on appeal from a judgment entered upon the report of a referee does not affect the order of reference unless specially directed; but where the judgment is reversed upon questions of fact, the court, on motion, usually changes the Referee. After this cause had been tried be fraudulently concealed the fact that Andrew Kennedy, applt. he had a wife living. Defendant, Decided November 6, 1879. learning of the fact of the marriage, declined to pay interest on the mortgages given by him as part purchase, but was afterwards prevailed upon to pay the interest on the mortgages upon the assurance of defendant that he would procure a release of dower from his wife, and thus make plaintiff's fore a Referee and judgment had been reversed and new trial ordered on aptitle good. This promise was never carried out prior to the commence- peal to the General Term from the ment of the suit, although, after the judgment entered on the Referee's resuit had been commenced defendant port, the cause was placed upon the tendered the plaintiff a release of Special Term Calendar and a motion dower executed by his wife. At this was thereupon made by defendant to time the real estate had very much dismiss the complaint for want of depreciated in value, and the evidence jurisdiction. at the trial tended to show that plaintiff could have sold the property at a profit shortly after the receipt of his deed, provided he had been able to give a good title. Chas. Jones, for applt. The court, after hearing counsel, ordered that the cause be set down for trial at a future circuit. From such order this appeal was taken. No attorneys' names. Held, A reversal of the judgment did not have the effect to vacate the Held, That the fraud practised up-order of reference, unless specially dion plaintiff by the suppression by rected, but where the judgment is redefendant of the marriage, and the versed upon questions of fact, the existence of his wife, gave plaintiff the court, on motion, usually changes the right to rescind the contract. That Referee. Billings v. Vanderveck, 15 this right to rescind the contract was How., 31 Barb., 588. not lost by plaintiff's delay, as such delay had been caused entirely by defendant's representations and promises that he would make the title good. That the tender by defendant after suit brought was no defence to this .action. Judgment affirmed, with costs. The effect of the order made was to vacate the order of reference. The court gave leave to move for an order of reference within twenty days. As the cause had already been decided to be a referable one, this order did not prejudice the plaintiff so far as his reference to right is concerned, because it left it at his option to make charged the jury, that if the damthe motion to substitute a new Ref- àge was occasioned by a defect in the eree within the period named. Al- horse or harness, and would not have though the order was an indirect occurred if those defects had not existmode of disposing of the former order of reference, yet, we think it must be regarded as having that effect, and it was certainly within the power of the court to make such an order. Order affirmed, without costs, and with leave to plaintiff to make application within twenty days for the appointment of a new Referee. Opinion per curiam. NEGLIGENCE. N. Y. COURT OF APPEALS. Hale, applt. v. Smith, admr. ,etc., respt. Decided Nov. 11, 1879. In cases where contributory negligence may be claimed, the absence thereof is part of the plaintiff's case and the burden of satisfying ted, then defendant was not responsi- Chas. McLouth, for appl't. Held, that the charge of the judge was not erroneous, that the sentence excepted to related wholly to the burden of proof on the question of the viciousness of the horse, and not to the sufficiency of that fact alone to constitute a defence; that the burden of proof of the whole case was with plaintiff, and it was incumbent upon him to satisfy the jury by a preponderance of proof that the injnry had been. curred if such defect had not existed, de- occasioned by the negligence of defendant was not liable, although his testator fendant's intestate alone, and that had been guilty of negligence, in conclusion plaintiff himself was free from fault. charged that it was incumbent upon plaintiff the jury on that point rests on him. In an action for injuries to a horse, wagon and harness hired by defendant's intestate, where the viciousness of the horse had been set up as a defence, the judge after charging that if the damage was caused by a defect in the horse or harness, and would not have oc to show by a preponderance of testimony that the horse was not vicious. Held, no error. In cases where contributory negligence may be claimed, the absence of it is part of the plaintiff's case, and the burden of satisfying the jury on that point rests upon him: 58 N. J. 258; 100 Mass, 208; 101 id., 466; 23 Conn. 335; 18 N. Y., 248. This action was brought to recover damages for injuries to a horse, wagon and harness, hired by defendant's intestate from plaintiff, and which was injured while in his custody. The viciousness of the horse was set up as a defence, and evidence upon that subject All concur, except Folger and Angiven by both sides. The court drews, JJ., absent. Judgment of General Term, affirming judgment for defendant, affirmed. Opinion by Rapallo J. EVIDENCE. N. Y. SUPREME COURT. GENERAL covered with powder?" and he answered "Yes sir" he was then asked as a hypothetical question, against objection, whether if the shot John Smith, plff. in error, v. The had come out of the gun red hot People, defts. in error. Decided Nov. 6, 1879. Expert testimony is not proper or competent upon a matter within the ordinary range of human experience. Where the preliminary examination shows that the expert has not had experience with respect to the matter about which he is proposed to be questioned, his testimony afterwards upon such matter is incompetent. and traversed the distance only of fifteen or twenty feet, upon entering the person of the deceased they would not have been able to produce the burned appearance, which he saw exposed around the wound. He answered, "I think so." During the trial a witness named Applegate was allowed against objection and'exception to testify as an expert as to how much spread there was in shot at various distances projected ness. Wm. F. Howe, for plff. in error. Writ of error to the General Sessions to review the conviction of the plaintiff in error of murder in the from a gun such as was shown the witsecond degree, for shooting one Madden. There was a conflict in the testimony as to the place at which the shot was fired. The witnesses for the prosecution stated that the shot was fired through a window, while the plaintiff ted. It had a strong tendency to supin error testified that the shot was fired indoors, while he was in close proximity with his assailants, of which Madden was one. Upon this question, as to whether the prisoner was in close proximity with his assailants or not, testimony was admitted of the deputy coroner, who was a physician, against objection and exception. port the position taken by the prosecution with respect to the distance at which the shot was fired. Expert testimony is incompetent upon a matter which is within the ordinary range of human experience. We can see no distinction in principle between this question and the one ruled upon in 71 N. Y., 793. Furthermore the question asked the Deputy Coroner after he had stated his inexperience was improperly allowed. Judgment reversed. New trial ordered. Opinion by Brady J.; Ingalls J. The deputy coroner was asked whether or not bird shot or buck shot, in leaving a fowling piece like this one, comes out of a gun red hot. His answer was: "I have no experience as to the character or temperature of concurring. shot leaving an instrument of that kind, but I can say that the edges, meaning the edges of the wound, were burned and were covered evi APPEAL. INTERLOCUTORY JUDGMENT. dently with powder. He was then N. Y. SUPERIOR COURT. GENERAL asked the question, which was objected to and exception taken: "Evidently Vol. 9.-No. 2. TERM. Charles A. Cameron v. The Equit |