peculiar color, known to persons engaged in its manufacture, sale, or use. All the barrels in the defendant's warehouse were at no time examined. The extent of the examination made by the witnesses sworn on behalf of the plaintiffs did not exceed 118 of the 2,463 barrels in store. They did propose to extend the examination, but they were not permitted to do so by the defendant's attorney, for the reason that 120 barrels opened for that purpose afforded a full opportunity to ascertain the character and condition of their contents. But this statement was not supported by the evidence given on behalf of the defendant, indicating that there were barrels forming a part of the mass that has been stored in the warehouse which did contain cement denominated by the witnesses to be "Portland Cement." One of the plaintiffs, Mr. Wills, testified that he went to the warehouse within three or four days after the maturity of the note, and in October, 1885, and that he found the cement in a cellar of the defendant's warehouse, and that it had been hardened. His acquaintance with the article of Portland cement was that it was a floury substance when it was in a good condition, and that he could, by looking at it, distinguish it from some other kind of cement. His statement further was that "all I know about Portland cement is that I have seen an article in the market of a certain character, floury condition, and coming in certain packages, known as Portland Cement,' and I have dealt in it and sold it as such. That is all I know about Portland cement." The barrels in the cellar of the defendant's warehouse were stated by him to be tierced up three or four in height, and running back through the cellar. He further added that he did not examine closely, but he made an examination of the barrels superficially, going around and sounding them. In this examination he found barrels with staves broken, enabling him to look at the article. And he testified that he took up a stick and poked at it, and found that it was a hard substance; that it was a brown, mortar-like substance, inside of the barrels; and that was the character of all the barrels which he examined. He could not, he swore, push the stick beyond three inches in the barrels, and the color did not resemble Portland cement. This was substantially all the evidence which was given by him as to the quality of the article contained in the barrels, and the number which he examined in this manner was not stated by him. His evidence, therefore, was quite limited in the way of supporting the plaintiffs' action. The next witness examined upon this subject was Thomas R. Keator. He had formerly been a manufacturer and importer of cement, and made an examination of this article. But he testified that he could not tell whether the barrels contained Portland cement without making a test; that he took samples, and made a ball test which he considered thorough, and then added that the commodity was not Portland cement. The reasons he afterwards gave for this conclusion were that the article would not harden, but crumbled, and went to pieces. On that account he stated: "It was not a good cement. That opinion is derived from this test I spoke of." But the samples used by him were taken from two of the casks. They were obtained from the head of the casks, and he had no knowledge whether the cement would deteriorate by age. In his further evidence he stated that about 10 tests had been made of the article, and that he had known Portland cement to harden while it was confined in the packages. His experience, he said, was "that Portland cement does harden in the barrels sometimes,-quite often." This testimony given by him materially diminishes the force of that given by Mr. Wills, who placed his judgment of the article upon the fact that it was a hard substance as he found it in the barrels which he examined, and it at the same time tends to establish the fact that the sample taken by himself from the barrels, lacked the important quality of hardening under water; and to the extent of his examination it tended to prove the fact to be either that this was not Portland cement, or that it had lost this, its most valuable. quality. The witness Alexander Keeler stated that he had opened half a

dozen barrels of the cement, and bored down with a stick, and an adze, and found a substance like sand. These barrels had the trade-mark, or brand, of a manufacturing firm in France, engaged in the manufacture of cement. He found the article to have hardened; that it had not the color of Portland cement. It fell to pieces, instead of hardening, under water, and only in the appearance of the packages resembled Portland cement. The witness Thomas Keyes opened 110 barrels, and went down half way into the barrels. He testified that the substance was not like Portland cement. It was a different substance altogether, and he never saw Portland cement like it.. Further testimony was given by John J. Tucker, who was sworn on behalf of the plaintiffs, and was a builder. He previously examined the cement for another party receiving 20 barrels of it, which he used in his business. His description of it was that it was very granular, more so than Portland cement, or any other cement, and of a very high color, and not comparing in substance with anything he had previously used. He did, however, use these barrels, although he found them to be solid all the way through, and he added at the close of his testimony that he would not swear that this was not Portland cement, although it was different from any he had seen before. This was all the evidence given on behalf of the plaintiffs to prove the fact that the 2,463 barrels in controversy contained a substance different from that of Portland cement.

On the part of the defendant it was proved by the importer that this article was imported by him from France, and that he had paid its purchase price, and placed it in the warehouse of the defendant. He seems to have acted in good faith, and upon the belief that the barrels contained Portland cement. Other witnesses were examined who testified to the fact that they had obtained samples from some of the barrels, and had subjected it to the process under which cement of this description was expected to harden, and that this cement had hardened, although not as thoroughly as the best quality of Portland cement. It does not appear that these persons obtained the samples used by them from the same barrels as those which were mentioned by the witnesses on behalf of the plaintiffs; and it is not probable that they did, for the reason that the action of the commodity used by them was entirely different from that obtained by the plaintiffs' witnesses. There was no substantial conflict between the witnesses sworn on behalf of the plaintiffs and those sworn on behalf of the defendant, for in the samples obtained by them, and the barrels which were examined, the article proved to have been different, indicating that the barrels in store with the defendant did, so far as the observation of his witnesses extended, contain Portland cement; and as the evidence on behalf of the plaintiffs referred to no more than from 118 to 120 barrels of the cement, and the fact was made to appear by the evidence of the defendant that some of the barrels certainly did contain Portland cement, it was not sufficient to justify the general verdict for the amount rendered by the jury. The most that the evidence tended to establish as to the quality of the article was that a part of it proved to be a different substance from that mentioned in the receipts, while the evidence given on behalf of the defendant has clearly and satisfactorily proved that another portion of the packages contained Portland cement. It is true that this was of an inferior quality, but by the receipts the defendant did not bind himself to deliver any particularly described quality of cement. What he undertook to do was to deliver, upon the return of the receipts and the payment of the storage, the article known as "Portland Cement," and if it was of that description, although inferior in quality, the delivery of that article would be a performance of his obligations. If the substance was not in fact Portland cement, (and that was for the plaintiffs to prove,) it would seem to be susceptible of very satisfactory evidence. But the examinations which were made, and the tests applied, prove no more than a probability that the article was in part only as the plaintiffs affirmed it

to be, while on the part of the defendant it was equally as well established that the packages, in part certainly, were of the quality represented by the receipts. The proof, taken together, was too loose, as a matter of fact, to sustain the large verdict rendered by the jury. The amount of the plaintiffs' demand was $3,500, together with the interest accruing upon it from the time of the maturity of the obligation, and, so far as the action is capable of being maintained, it is required by the statute to be limited to the immediate and consequential damages which the plaintiffs sustained by reason of the commodity not conforming to or being of the description mentioned in the receipts. That they had sustained damages to the extent awarded by the jury from the brief and imperfect examinations of the article which had been made, has not been maintained. The verdict should therefore be set aside, and the judgment vacated, with costs to the defendant on the appeal from the order to abide the event, and upon payment by him of the costs of the trial already had.

BRADY, J., concurs.

VAN BRUNT, P. J. I am of the opinion that, under the facts of this case, no recovery should be had.

In re MCADAM.1

(Supreme Court, General Term, First Department. November 7, 1889.)

1. CONTEMPT-COMMITMENT--PROCEDURE.

Under Code Civil Proc. §§ 856, 857, authorizing the judge, on proof by affidavit that a witness refuses to answer a legal question, to commit him to jail by warrant, specifying the cause of commitment, etc., the fact that notice of the application was given, and an order to show cause granted, does not require a decision evidenced by an order in writing, as the statute does not require notice or rule to show cause, and such procedure is a mere nullity.

2. CONSTITUTIONAL LAW-DUE PROCESS OF LAW.

The above sections are not unconstitutional as depriving of liberty without due process of law, in that the proceeding is ex parte, and no notice is required. 8. SAME-TITLES OF LAWS.

Laws N. Y. 1884, c. 516, is entitled "An act to amend chapter 410 of the Laws of 1882, entitled 'An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,' in relation to the commissioners of accounts, New York city." The amended act was virtually a charter of the city, being an act to consolidate all the special and local acts by which the gov ernment of the city was carried on, and from which its various departments derived their power, and the law of 1884 was simply an amendment of this. Held, that the title of the law of 1884 was sufficient.

Appeal from special term, New York county.

Graham McAdam appeals from an order denying a motion to vacate a commitment for contempt. For opinion delivered at special term, see 5 N. Y. Supp. 387. Laws N. Y. 1884, c. 516, is entitled: "An act to amend chapter four hundred and ten of the Laws of eighteen hundred and eighty-two, entitled 'An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,' in relation to the commissioners of accounts, New York city." The sections of the Code of Civil Procedure referred to in the opinion are as follows: "Section 856. If the person subpoenaed and attending or brought, as prescribed in the last section, before an officer or other person or a body, refuses, without reasonable cause, to be examined, or to answer a legal and pertinent question, the person issuing the subpoena, if he is a judge of a court of record or not of record, may forthwith, or, if he is not, then any judge of such court may, upon proof by affidavit of the facts, by warrant commit the offender to jail, there to remain until he submits to do the act which he was required to do

1Affirming 5 N. Y. Supp. 387.

* * *

or is discharged according to law. Section 857. A warrant of commitment, issued as prescribed in the last section, must specify particularly the cause of the commitment; and, if the witness is committed for refusing to answer a question, the question must be inserted in the warrant.

Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ.
Peter Mitchell, for appellant. J. J. McKelvey, for respondent.

VAN BRUNT, P. J. In March, 1889, a commitment was issued by Justice INGRAHAM committing Mr. Graham McAdam to jail, there to remain until he should answer a question named in said commitment, which had been propounded to him by the commissioners of accounts of the city of New York, or be discharged according to law. The grounds upon which the motion was made were that the proceedings to commit McAdam for contempt were initiated by an order to show cause, and therefore a decision evidenced by an order in writing was necessary. Upon the face of the commitment no such fact appears; and although, upon the papers submitted, it would seem that an order to show cause had been issued, yet, there being no authority in law for any such proceeding, all that went before the signing of the commitment was a nullity. The commitment is issued, apparently, ex parte, under sections 856, 857, of the Code. No notice whatever was required; and the mere fact that notice of the application was given, or an order to show cause granted, in no way impaired the right of the court to issue the commitment as though no such notice had been given. Therefore the court was entirely right in refusing to enter any order upon the return of the order to show cause; and such refusal in no way invalidated the commitment, because, as already said, the commitment appears to have been issued, not by virtue of any order to show cause, but simply ex parte, as provided and authorized by the Code. It is to be seen that the commitment is to be issued by a judge of the court, and not by the court; and therefore the entry of an order would simply amount to the justice directing himself to issue a warrant. It is correctly claimed by the respondent that the application is entirely ex parte, and does not require any notice whatever of the application to be given to the witness, and that the application must be made, not to the court, but to a judge, who alone has power to commit the offender. Therefore, under sections 856, 857, the correct practice was pursued. No notice was necessary, and no order could be entered; and the commitment was issued in pursuance of these provisions of the Code.

The claim that chapter 516 of the Laws of 1884 is unconstitutional cannot be sustained. Chapter 410 of the Laws of 1882 was virtually a charter of the city of New York. It was an act passed to consolidate into one act all the special and local acts by which the government of the city of New York was carried on, and from which its various departments derived their power, by which their rights were conferred. Chapter 516 of the Laws of 1884 was simply an amendment of this charter, and its title was certainly more explicit than that of chapter 410 of the Laws of 1882. The title fairly represents the subject-matter of the legislation contained in the chapter; and, unless the legislation itself is to be set out in the title, it was sufficiently definite to answer all the requirements of the constitution.

It is further urged that the sections of the Code under which the warrant was issued are unconstitutional because in violation of that part of the constitution of the United States which provides that "no person shall be deprived of life, liberty, and property without due process of law." Why reference should be made to the constitution of the United States it is difficult to imagine, when the same provision is found in the constitution of our state, which would be much more applicable if any violation of its terms has occurred. It is claimed that, because these sections do not require notice of the application, therefore the offender is deprived of his liberty without due

process of law. What is "due process of law" has not been clearly defined; but the practice of summary commitments has prevailed ever since the Revised Statutes were adopted, and long before the adoption of the constitution to which reference has been made. Such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category of "due process of law." By the Revised Statutes, (volume 2, pt. 3, c. 8, tit. 13, § 3,) in cases of proceedings to punish disobedience to any rule or order requiring the payment of money, or of disobedience to any subpoena, it is expressly provided that no notice is necessary, and the warrant to commit may issue in the first instance. This has been the practice since then, and the provisions of the Code in question are in entire harmony with the previous legislation upon the same subject. As to the relevancy of the question asked, we are unable to say that it was not relevant. The party moving to set aside the commitment has not shown its irrelevancy by bringing before the court the papers upon which the commitment was granted, or the other evidence which was taken in the proceeding. Upon the papers before him, the justice issuing the warrant has found the question to be irrelevant; and without those papers it is impossible for us to say that his conclusion was erroneous. We are of the opinion, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

MCSWYNY v. BROADWAY & S. A. R. Co.

(Supreme Court, General Term, First Department. November 7, 1889.) 1. CARRIERS-HORSE RAILROADS-INJURY TO PASSENGER.

Where, in an action to recover damages for an injury received in entering defendant's car, the evidence is conflicting as to the manner in which the accident happened, it is a question of fact for the jury, and their verdict is conclusive thereon. 2. SAME-NEGLIGENCE.

A charge that plaintiff could recover only if the car had stopped when she attempted to get in, and that she would be guilty of contributory negligence if she attempted to enter by grasping the rear rail while the car was in motion, and that it was for the jury to determine whether the car started before she had a chance to get in, properly submitted the case to the jury.

8. SAME.

It was negligence in defendant if the car was started so as to throw plaintiff from the step while entering, whether by the act of the conductor or driver.

Where the evidence as to the permanent nature of plaintiff's injury is conflicting, the verdict of the jury will not be disturbed.

5. SAME-DEGREE OF CARE.

Defendant was obliged to use the utmost care to carry passengers safely.

6. EVIDENCE-HARMLESS ERROR.

Where a physician was not allowed, on cross-examination, to state whether an examination of the person of plaintiff, to which he had testified, was fairly made, the error was harmless, when another physician present at the examination testified that it was accurately made.

7. SAME.

Evidence of one who saw plaintiff four months after her injury that she was then suffering great pain, is competent.

8. DAMAGES-PERMANENT INJURY.

Plaintiff was entitled to recover, not only for the injury she had suffered up to the time of the trial, but for what would probably afterwards follow.

9. TRIAL-PHYSICAL EXAMINATION OF PLAINTIFF.

Plaintiff's counsel could properly refuse to submit plaintiff to an examination of physicians, as proposed by defendant.

10. EVIDENCE-COMPETENCY.

It was competent for plaintiff to prove by her own evidence that her power of motion was not what it previously had been.

Appeal from circuit court, New York county.

Catharine McSwyny sued the Broadway & Seventh-Avenue Railroad Company for damages for personal injuries. From a judgment on the verdict of the jury, and an order denying a new trial, defendant appeals.