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App. Div.]

Second Department, March, 1906.

or all of these as to them seems best, and they are not confined to one of them. They may take that test which they think will be most likely to give them the actual value of the stock and they may disregard all the others. They are not bound to seek for all the evidence which bears upon value; that would be impracticable." Mr. Sedgwick on Damages (Vol. 1 [8th ed.], § 257) says: "Where there is no market value, the value of shares must be found by an examination of the affairs of the company." Cook on Stock and Stockholders (Vol. 1 [3d ed.], § 581) says: "The value may be shown by showing the value of the property and business of the corporation." In Matter of Brandreth (28 Misc. Rep. 468; affd., 169 N. Y. 437) Surrogate SIEKMAN took into consideration as the only manner of arriving at such value the actual property of the corporation and its earning capacity. When the facts which were germane to the determination of the worth of the stock were put before the court, or, if not all, the other facts were easily ascertainable, I think that the court did not err in excluding the opinion evidence of these experts. For correct inferences from the legitimate data for worth were as easily to be drawn by the court as by experts speaking from hypotheses. In the words of JOHNSON, C., in Simpkins v. Low (54 N. Y. 179, 185): "Why should a court be the only place where men most affect an ignorance of what all men know?" When the precise question for the court or jury is the actual value of stock (and market value does not exist, so that expert testimony as to that is not relevant to the question of worth or indicative thereof), and that question depends on the possessions and business of the corporation, and such information is detailed, together with the ordinary data of the number of shares, the corporate life, the character of its business, which of the essential facts cannot be stated or described to the court or jury in such a manner as to enable court or jury to form its judgment, so that expert testimony thereon is necessary? I cast my question after the rule enunciated in Van Wycklen v. City of Brooklyn (118 N. Y. 424, 429), where the court, per BROWN, J., say: "While it is no longer a valid objection to the expression of an opinion by a witness, that it is upon the precise question which the jury are to determine (citing authorities), evidence of that character is only allowed when, from the nature APP. DIV.-VOL. CXI.

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Second Department, March, 1906.

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The rule is

[Vol. 111. of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment thereon, and no better evidence than such opinions is attainable. (Ferguson v. Hubbell, 97 N. Y. 507; Schwander v. Birge, 46 Hun, 66; Greenl. on Ev. vol. 1, § 440, and note.*) well stated by Justice BRADLEY, in Schwander v. Birge (supra), as follows: The governing rule deduced from the cases permitting the opinion of witnesses is, that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts, and, therefore, cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it.'

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"To the same effect it was said by Judge EARL, in Ferguson v. Hubbell (supra): 'Opinions are allowed when the facts cannot be adequately placed before the jury so as to impress their minds, as they impress the mind of a competent skilled observer. When the facts can be placed before a jury, and they are of such a nature that juries generally are just as competent to form opinions in reference to them, and draw inferences from them as witnesses, there is no occasion to resort to expert or opinion evidence."" In Littlejohn v. Shaw (159 N. Y. 188, 193) GRAY, J., says: "When the question concerns a matter, as to which it may be fairly supposed that jurors are competent to reach a judgment from the exercise of that common knowledge which is attributable to men, the opinions of witnesses are not admissible." Lawson on Expert and Opinion Evidence (2d ed. pp. 483, 484) says: "The opinion of one who has been in the banking business for years, engaged in buying and selling bonds, is competent as to bonds of a kind he has not dealt in, and where he has no special knowledge of their market value. But one is not competent to give an opinion of the corporate value of stock, founded on its dividend-earning capacity. One who does not know the value of the plant of a corporation is not qualified to testify as to the value of its stock." In Matter of Brandreth (supra), Surrogate SILKMAN, speaking of a corporation somewhat similar so far as its holdings, the dealings in stock and its dividends

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App. Div.]

Second Department, March, 1906.

were concerned, said: "It is at once apparent that it is practically impossible to produce expert evidence of the market value of this particular stock, and the only manner of arriving at its value is by taking into consideration the actual property of the corporation and its earning capacity." The learned counsel for the appellants cites Sistare v. Olcott (15 N. Y. St. Repr. 248) and Moffitt v. IIereford (132 Mo. 513). Those cases presented the question of the error of admitting the testimony, not rejecting it. Moreover, the question in Sistare v. Olcott (supra) was conversion, and the damages therefor were based upon the market price. (Baker v. Drake, 53 N. Y. 211.) In Sistare v. Olcott (supra) there is a dissent by VAN BRUNT, P. J., upon the admissibility of expert evidence.

I advise that the judgment be affirmed, with costs.

HIRSCHBERG, P. J., RICH and MILLER, JJ., concurred; HOOKER, J., concurred in result.

Judgment affirmed, with costs.

EDWARD F. ANDREWS, Appellant, v. H. & H. REINERS, Respondent.

Second Department, March 2, 1906.

Negligence-injury by fellow-servant - evidence insufficient to show negligence of master in employing said servant.

Evidence that the plaintiff's fellow-servant, who in driving a bung into a barrel accidentally struck the plaintiff, had previously, through carelessness, rolled a barrel down an elevator shaft, had rolled a keg down stairs, broken bottles, bruised his fingers, etc., without proof that these facts were known to the master, is insufficient to fasten negligence upon the master for employing an incompetent servant.

HOOKER, J., dissented.

APPEAL by the plaintiff, Edward F. Andrews, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 12th day of August, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Terin, and also from an order entered in said clerk's office on the 26th day of September, 1904,

Second Department, March, 1906.

[Vol. 111.

denying the plaintiff's motion for a new trial made upon the

minutes.

Frank F. Davis [Charles J. Belfer and Francis A. McCloskey with him on the brief], for the appellant.

Sidney Lowenthal [Ira Leo Bamberger with him on the brief], for the respondent.

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The action is by servant against master for negligent employ of a fellow-servant whose accidental act injured the plaintiff. Plaintiff when at work in defendant's distillery leaned over a barel to empty it. At that time the other servant, in attempting to start the bung out of another barrel, missed his aim and struck the plaintiff with the wooden bungstarter. The evidence of specific acts relied upon to establish liability of the master under the rule of Park v. N. Y. C. & H. R. R. R. Co. (155 N. Y. 215) is found wholly in the testimony of the plaintiff. First, he testifies that two months before, after this fellow-servant had lined up some empty barrels on the floor, one rolled down into the elevator shaft because the barrels were not wedged, and because the floor, instead of being level as intended by the construction, was very "bad and broke up" and slanting. Second, at another time when this servant was filling a keg standing on the floor it rolled downstairs. Third, at another time when the servant was carrying bottles by their necks, they dropped on the floor. Fourth, the fellow-servant had cut and bruised his own fingers. Two of these accidents might be traced to the faulty construction of the premises, while there is no proof that this fellow-servant knew or should have known of it at the times in question. The third is not very serious at most, and the fourth is trivial. But in any event there was no sufficient proof to fasten liability on the master. As to the first accident the witness testifies that there was no one on the floor at the time so far as he knew, and that he did not know whether "they knew of it or not." As to the second he testifies that Mr. Bishop, who I infer was some one in authority, was there "somewhere on the floor" immediately before or after. As to the fourth accident there is no proof that it was ever known to the defendant. As to the third accident plaintiff was asked whether anything was said on that occasion by any of

App. Div.]

Second Department, March, 1906.

the officers of the defendant with reference to the manner in which he (i. e., the alleged incompetent) did that. This was objected to unless the officer was specified. The court excluded it, but no exception was taken. The next question was "or by any individual." This was excluded under exception. The question was too broad. But even assuming that it had been answered that the defendant then and there found fault with the failure of the attempt to carry too many glass bottles, the bit of evidence would not have been sufficient. (Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356, 365.) Finally, the plaintiff testifies as to whether Mr. Reiners or Mr. Bishop were present on any of these occasions, that "they were somewhere on the floor" (which was 75 feet wide by 100 or 125 feet long), but where he cannot state. The evidence is too meagre to charge the defendant with knowledge or to hold it liable for ignorance, under the rule of Park's Case (supra), Baulec's Case (supra), and of Cameron v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 400).

The judgment must be affirmed, with costs.

GAYNOR, RICH and MILLER, JJ., concurred; HOOKER, J., dissented. Judgment and order affirmed, with costs.

Rocco LAMBERTI, Respondent, v. SUN PRINTING AND PUBLISHING ASSOCIATION, Appellant.

Second Department, March 2, 1906.

Libel-publication wholly facetious cannot be made libelous by innuendo- demurrer to complaint.

When a publication, plainly humorous, relating to the plaintiff does not justify an innuendo ascribing to it a libelous meaning, a demurrer to the complaint will be sustained.

When a publication recounts a practical joke played upon the plaintiff, in which he was accused by his companions of being branded with a "Black Hand,” and with being a member of a gang known by that name, such publication cannot be made libelous by an innuendo setting out that such gang was composed of assassins, blackmailers, thieves, etc., and a demurrer to the complaint should be sustained.

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