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bar, back bar, and pump cost the defendant $575, suggests that the jury decided this question in favor of the defendant, as their verdict was $1,025. The testimony that there was a specific demand for the entire $2,000 is not very convincing, but it is very strong that she demanded $10 on account, which Carhart & Hunold repeatedly refused to pay. It does seem to us an idle ceremony to demand $2,000 from a creditor who will not pay even $10 on account, and we are not certain that a demand for the whole cannot be fairly implied therefrom, though it is not necessary, in our opinion, to decide that. The defendant has taken possession of this property, and converted it to its own use, claiming to be the absolute owner thereof against Carhart & Hunold, this plaintiff, and the whole world. Under such circumstances to demand of Carhart & Hunold the sum of $2,000 as the basis of making a further demand upon them for the property that they cannot deliver, without any fault on their part, is a useless form that the law does not require, in our judgment. Moore v. Craig, (City Ct. Brook.) 4 N. Y. Supp. 339; Reading v. Lamphier, (Sup.) 9 N. Y. Supp. 596; Monloughney v. Hegeman, 9 Abb. N. C. 403; Hughes v. Griffith, 12 Wkly. Dig. 501.

The defendant charged, and undertook to prove, that this mortgage given to plaintiff was without consideration, and with the intent to defraud the creditors of Fowler. This gave the plaintiff the right to show the real transaction, as well as the good faith thereof, by the conversation had at the time it was executed between the parties thereto, such as that it was given to plaintiff at the request of herself and Fowler by Carhart & Hunold, to secure Fowler's indebtedness to her, etc. This disposes of the exceptions taken by the defendant at folios 57, 58, 98, 99, and 102. Nugent v. Jacobs, 103 N. Y. 125, 8 N. E. Rep. 367; Billings v. Russell, 101 N. Y. 226, 4 N. E. Rep. 531; Starin v. Kelly, 88 N. Y. 418.

Defendant's requests 1, 2, and 3 were properly refused, for they seem to have been based upon the erroneous theory that a mortgage cannot be given in good faith for an existing indebtedness, which will be valid against a mortgage subsequently given for value parted with at the time, (Cobbey, Chat. Mortg. § 126;) and for the further reason that in them it is assumed that plaintiff parted with no value at the time the mortgage was given, while there is testimony that she surrendered a mortgage previously given at the time she received this one. We do not think we would be justified, cn the evidence, in holding that the damages were excessive. The only witness (Fowler) who testified to the value of this property was familiar with it, and qualified as an expert. He said it was worth $1,600; and the defendant had possession of the property, and introduced no evidence in rebuttal on the subject of value. This disposes of all the exceptions requiring consideration, and for the foregoing reasons the judgment and order must be affirmed, with costs.

(4 Misc. Rep. 302.)


(City Court of Brooklyn, General Term. June 26, 1893.)


Where plaintiff, a member of defendant Methodist church, expended money and rendered services in procuring the suspension of the pastor of the church for immoral conduct, and the rules of the church give any member power to prosecute cbarges against the pastor, no authority to act for defendant can be inferred from the nature of the services rendered by plaintiff.

Appeal from trial term.

Action by Frank E. Parshley against the Third Methodist Episcopal Church of the city of Brooklyn to recover for services rendered and moneys expended. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before CLEMENT, C. J., and VAN WYCK and OSBORNE, JJ.

Wm. J. Groo, for appellant.

Charles M. Stafford, for respondent.

VAN WYCK, J. The defendant belongs to the New York East Conference of the Methodist Society. The bishop annually assigns the ministers to the churches within his jurisdiction. Any member of the church has the power and right to request the bishop not to reassign any minister for another year, giving his reason therefor, and also the right to make charges before the presiding elder of the district looking to the suspension of the minister, pending the charges, until the ensuing annual conference shall consider and determine the same. Charles W. Millen was duly appointed the pastor of the defendant for the year ending April, 1887. The plaintiff, Parshley, and some of his fellow members in defendant church, complaining of the unfitness of Millen, memorialized the bishop to send them another pastor for the coming year, which was disregarded. On July 29 and in September, 1887, he (Parshley) presented charges of immorality to the presiding elder, which resulted in Millen's suspension until the annual conference of April, 1888, by which he was found guilty of imprudent and unministerial conduct, and allowed to withdraw from the conference, and return his parchments. Parshley claims that in the part he took in all these proceedings he expended $7,500, and that his services were worth $1,500. This action was brought to recover these amounts from the defendant. The learned referee decided that his labor was worth $1,500, and that he expended $7,500 in the work, and that he received towards the reimbursement of himself from various sources, $4,385, and was entitled to recover the balance of $4,616, with interest, from defendant. From the judgment entered there

upon this appeal is taken.

We think the evidence overwhelmingly establishes the finding of the referee that such labor, services, and expenditures were ren

dered and made by the plaintiff without the request or authority of the defendant or of its board of trustees, or of any person or persons having authority or power to bind the defendant. No authority could, by the most strained inference, be implied from the character or nature of the services or the labors, for any individual member of this church could have made like charges, and expended his money in their prosecution, against the direct wish and command of the defendant. It is manifest that he did not contemplate that the defendant would reimburse him, for he secured a contract from some of his personal associates to give him financial support in the prosecution of Millen, and made an appeal by the circulation of a pamphlet calling upon the general Methodist public to subscribe to a fund for his reimbursement. The referee decided that after these labors were performed and expenses were incurred in the prosecution of Millen the defendant adopted and ratified them by its full board of trustees, and upon this finding this judgment must stand or fall. Is it sustained by the evidence we are called upon now to consider? No formal claim upon the defendant was ever presented to the board until January 13, 1892. The referee rests his decision upon two acts of the board, and, if these are short of a ratification, then this judgment must be reversed. The first of these is a resolution of the board on May 14, 1891, contracting with its attorney, Judge Groo, to conduct the proceedings instituted by the New York and Brooklyn Bridge to acquire the church land on an agreement to pay him $6,000 for his services if he would guaranty that the sum paid for the same should be at least $104,000. It was $130,000, and the attorney received the $6,000, and out of it he paid or contributed $3,500 to plaintiff. I can find no convincing proof that the board required or intended that this sum should be so applied by the attorney, though there is some evidence that some members of the board had talked to the attorney to this effect. The mere fact that the resolution is silent as to any such purpose manifests an intention not to adopt or ratify this claim for the labors and expenditures of the plaintiff. The second act of the board upon which the referee rests his decision is the resolution of January 14, 1892, appointing two members of the board, Salt and Jones, a committee with power to examine "plaintiff's claim," and to fix and agree upon the sum, "if any," to be paid him, and requiring the committee to confer with and act under the advice of the board's attorney, both in the investigation and settlement of the claim. The evidence is clear that the committee intentionally failed, neglected, and refused to confer with or to give an opportunity to the board's attorney to advise them, though he requested it. The committee presented their report in favor of the claim to the board, which rejected it for this glaring and inexcusable disregard of their instruction, and for the same reason it does not bind the defendant. We think the resolution itself plainly disclosed an intent to refer to the committee for investigation the question of liability as well as that of amount. Having reached the conclusion that the finding of ratification on the part of the defend

ant is not sustained by a fair preponderance of evidence, it is unnecessary to consider the other questions and exceptions presented to us. Judgment must be reversed, with costs to abide the event, and order of reference vacated. All concur.

(4 Misc. Rep. 392.)


(Superior Court of New York City, General Term. July 3, 1893.)


In an action against a railroad company for causing plaintiff's arrest on the ground that he was attempting to ride on defendant's train with intent to avoid payment of his fare, defendant requested a charge that "if there was probable cause for making the complaint against the plaintiff, yet if, in making it, the conductor did not act with a malicious purpose, or with actual malice, towards the plaintiff, the defendant is entitled to a verdict." Held, that it was a substantial compliance with the request to give the charge with the word "actual" stricken out, the jury not having been instructed as to the distinction between legal and actual malice.


In an action for malicious prosecution for causing the arrest of plaintiff, an elderly man, on the ground that he was attempting to ride on defendant's railroad train with the intent of not paying his fare, and putting him on trial at a place where he could not procure bail, the court properly charged that if the jury found for plaintiff they must award substantial damages.


Malice is established where it is shown that the defendant in an action for malicious prosecution made the criminal charge complained of to enforce payment of a debt.

Appeal from jury term.

Action by Michael Toomey against the Delaware, Lackawanna & Western Railroad Company for causing plaintiff's arrest on the ground that he was attempting to ride on defendant's road without paying his fare, and with intent to avoid payment thereof. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before FREEDMAN and MCADAM, JJ.

Hamilton Odell, for appellant.

Wolff & Hodge, for respondent.

MCADAM, J. On September 27, 1890, the plaintiff, in company with his son, Andrew J. Toomey, and a friend, Mr. Peppard, made a journey on the defendant's road to Orange. Upon their return trip a dispute arose as to whether the tickets offered to the conductor entitled them to travel on his car. The dispute continued until the train reached Hoboken, and there the trio were arrested under color of a New Jersey statute which authorizes the apprehension of any person who attempts to travel in a carriage of any railroad company without having paid his fare, and with intent to avoid payment thereof. The offender forfeits to the company a

sum not exceeding five dollars, which "fine" may be imposed "by any justice of the peace before whom such person shall be brought on complaint made on oath or affirmation, and after a summary hearing of the facts and circumstances." The magistrate discharged the plaintiff and his companions, whereupon they brought separate suits against the defendant to recover damages for causing their arrest, and setting on foot the criminal prosecution aforesaid. The trials resulted in verdicts for the plaintiffs, but for different amounts. Andrew J. Toomey, the son, recovered six cents, which recovery the court at general term sustained (21 N. Y. Supp. 448) upon the ground that the question as to the amount of damages, substantial or nominal, was without objection left to the good judgment of the jury, and there was no legal reason which required the court to disturb their finding. The present appeal is from a judgment of $500 recovered by the father, an elderly gentleman, who claims to have keenly felt the indignity of his arrest, and suffered considerably from it. The fact that the son recovered six cents does not prove that the father should have been similarly dealt with, nor does the fact that the jury awarded the latter $500 prove that the verdict in the son's favor was too small. The jury in each case separately fixed the amount. The damages to be awarded in cases of this character must, in the nature of things, be left largely to the experience and sound judgment of a jury, and they naturally vary with the age and condition in life of the injured parties, and the impression created on the minds of the jury. In Wood's Mayne on Damages, (1st Amer. Ed., § 47,) the author, speaking of the measure of such damages, says:

"Where the person or character is injured it is difficult, if not quite impossible, to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires."

The verdict does not bear the evidence of bias or prejudice, and, though substantial, is still reasonably moderate in amount, and one we are indisposed either to criticise unfavorably or disturb. The court ought not to interfere with the assessment of damages by a jury, further than to see that they have not abused the trust reposed in them, or violated some settled rule of law.

The exceptions taken relate wholly to the charge, and the requests and refusal to charge:

1. The defendant requested the court to charge that "if there was probable cause for making the complaint against the plaintiff, yet if, in making it, the conductor did not act with a malicious purpose, or with actual malice, towards the plaintiff, the defendant is entitled to a verdict." The court charged the request, striking out the word "actual." The request, after all was substantially charged, and the jury were intelligently told that, if there was no malicious purpose or malice on the part of the conductor towards the plaintiff, he could not recover. The word omitted did not detract from the force of the request made, for the jury had not been instructed in the technical distinction between legal and actual malice, and

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