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as applied to this case, in the form submitted, there was none. Malice in fact is found by the jury; malice in law, by the court; and that submitted to them was necessarily of the former character, for the court made no finding, and gave no binding instructions, as to malice in law.
2. The trial judge charged, at plaintiff's request, "that the uncontroverted evidence is that the damage was substantial, and not nominal." The defendant urges with earnestness its exception to this part of the charge, in view of the finding of nominal damages in the action by the plaintiff's son, and the affirmance of that judgment by the general term. No such request was made in the action by the son, and the entire question of damages, nominal or substantial, was, without objection, left to the jury for their determination; and under such circumstances the general term was indisposed to interfere with a result which might have been guarded against, and perhaps obviated, by a specific request to charge that substantial damages must be awarded if they found for the plaintiff. The question, however, was squarely presented on the present trial, and the judge presiding met it with the direction that if they found for the plaintiff they must award substantial damages. We find no error in the instruction. Field, Dam. § 687; 3 Suth. Dam. 703. Taking an elderly man into custody, and marching him through a crowded thoroughfare, in charge of an officer, depriving him of his liberty, away from friends and facilities for bail, putting him on trial, causing fear and suspense, are acts sufficient to call for substantial rather than the mere nominal damages sometimes awarded for a mere technical trespass or wrongdoing.
3. The trial judge charged, at plaintiff's request, "that Burritt, the conductor, was chargeable with Slator's knowledge that the plaintiff had delivered unpunched tickets to him." Slator was the assistant conductor, aiding Burritt in collecting tickets. A delivery to Slator was therefore tantamount to a delivery to Burritt, and the act was so regarded and intended. Under the circumstances the charge was right. It was the duty of the one to keep the other informed as to the collections made, that demands might not be made twice of the same passenger, and the implication of knowledge comes from the duty imposed of communicating it.
4. The defendant's counsel requested the court to charge that "the plaintiff, when applied to by the conductor, was bound to produce a proper and valid ticket as evidence of his right to ride upon the train, or pay his fare." Such a regulation is certainly reasonable, and for noncompliance therewith an offending passenger may be excluded from the car. Hibbard v. Railroad Co., 15 N. Y. 455; Townsend v. Railroad Co., 56 N. Y., at page 300; Homiston v. Railroad Co., (Super. N. Y.) 22 N. Y. Supp. 738. No such right was exercised here. On the contrary, the plaintiff was allowed to complete his journey, and was then arrested for stealing a ride. The trial judge replied to the request in these words:
"If he could do so, he was. If he had had a ticket, and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket or pay his fare, or make some reasonable explanation why he didn't do it."
While the rule is that, as between conductor and passenger, the ticket is the only evidence of the passenger's right to be carried, (2 Wood, Ry. Law, § 350; Thomp. Carr. p. 337, § 3,) and explanations are not always to be taken, yet exceptions thereto will be found in several well-considered cases, in which it was held that the passenger has the right to make any explanations that will assist in determining his rights, (Pennsylvania Co. v. Bray, 125 Ind. 229, 25 N. E. Rep. 439; Railroad Co. v. Conley, [Ind. App.] 32 N. E. Rep. 96; Railroad Co. v. Fix, 88 Ind. 381.) In Railroad Co. v. Bray, supra, the passenger had purchased a round-trip ticket, and the conductor had retained the return coupon on the going trip by mistake, and the passenger did not discover the mistake until he presented to the conductor, on his return trip, the going coupon, that he had retained, instead of the return coupon. The court held that under such circumstances the passenger had a right to be carried on his return trip, on presenting the going coupon, with proper explanation. See, also, Railroad Co. v. Holdridge, 118 Ind. 281, 20 N. E. Rep. 837. The charge, in view of the facts and the cases cited, was a proper answer to the request, for it left the jury free to determine whether the plaintiff really had the proper ticket, and how he had disposed of it, and whether, in view of the explanations given, the conductor acted with or without probable cause-in good faith, or from malicious motives-in causing the plaintiff's arrest after the journey was completed.
5. The plaintiff's counsel requested the court to charge "that if Burritt [the conductor] made the charge of a criminal complaint for the sole purpose of collecting a debt, and to prove himself right, they must find malice." This was correct. Lynch v. Railroad Co., 90 N. Y. 77, 85. The arrest was justifiable only on the theory that the conductor, in putting the plaintiff into custody, was bringing him to justice pursuant to the New Jersey statute before referred to, and for the purpose of being dealt with according to its provisions.
The five exceptions discussed are all that were urged on the argument against the judgment, and for the reasons stated we hold them to be without merit. The defendant was clearly liable to an action for the acts of the conductor, (Rounds v. Railroad Co., 64 N. Y. 129, 134; Mott v. Ice Co., 73 N. Y. 543, 547; Lynch v. Railroad Co., 90 N. Y. 77, 86,) and, the damages not being excessive, the judgment and order appealed from must be affirmed, with costs.
FREEDMAN, J. I concur, but desire to add that, although the jury were directed to give substantial damages in case they found for the plaintiff, they were, by another part of the charge, expressly confined to giving compensatory damages only.
(4 Misc. Rep. 614; mem. report without opinion.)
(Superior Court of New York City, General Term. July 3, 1893.) REFERENCE-ACTION FOR DECEIT-LONG ACCOUNTS.
An action to recover money alleged to have been procured by the deceit and false and fraudulent representations of defendant is not referable, and the character of the answer cannot make it referable as involving a long account.
Appeal from special term.
Action by Frederick Booss and others against Henry Mihan. From an order vacating an order theretofore obtained by plaintiffs by default, referring the issues to a referee to hear and determine the same, plaintiffs appeal. Affirmed. Argued before FREEDMAN and GILDERSLEEVE, JJ.
H. Grosse, for appellants.
S. C. Baldwin, for respondent.
FREEDMAN, J. Upon their complaint the plaintiffs seek to recover from the defendant the amount of certain overpayments made by the plaintiffs to the defendant on account of labor and services rendered, and obtained by the defendant by means of deceit and false and fraudulent representations. The cause of action thus set forth is not referable, and, that being so, the defendant's answer cannot make it referable. Moreover, the reply shows that the counterclaim set up in the answer does not involve the examination of a long account.
The order should be affirmed, with $10 costs and disbursements.
(4 Misc. Rep. 431.)
WOOSTER v. BATEMAN et al.
(Superior Court of New York City, General Term. July 3, 1893.)
1. APPEAL-WHAT REVIEWABLE-ORDER GRANTING BILL OF PARTICULARS. An objection to the regularity or sufficiency of the affidavit on which an order was made to show cause why a motion for a bill of particulars should not be granted cannot be raised on appeal from the final order granting the motion, but should be addressed to the special term.
2. APPLICATION FOR ORder-IrreguLAR AFFIDAVIT.
General Rules Prac. 25, provides that, if the affidavit in support of an ex parte application for an order omits to state whether any previous application therefor has been made, any order made on such application "may" be revoked. Held, that such omission is not an irregularity which compels the court to refuse the order, or to vacate it after it has been granted.
Appeal from special term.
Action by George H. Wooster against Horatio Bateman, impleaded, etc. From an order granting a motion for bill of particulars, plaintiff appeals. Affirmed.
Argued before FREEDMAN and GILDERSLEEVE, JJ.
W. T. B. Millikin, (Thos. B. Browning, of counsel,) for appellant. Arnoux, Ritch & Woodford, (Wm. H. Arnoux, of counsel,) for respondent.
GILDERSLEEVE, J. After a careful examination of the papers before us we are of opinion that the order appealed from should be affirmed. While it may be fairly said that the defendants are familiar with the transactions out of which the plaintiff's claim arises, they are entitled to be informed of the particular damage for which a recovery is sought, or the items that go to make up the damage of $7,500, alleged in general terms in the complaint. With such information, surprise will be avoided. The defendants can prepare to meet the plaintiff's claim, and the scope of the inquiry upon the trial will be reasonably restricted. Such is the purpose of a bill of particulars. The provisions of the order are reasonable, and in accordance with the prevailing decisions on the subject.
The learned counsel for the appellant contends that the order should be reversed because of the irregularity or insufficiency of the affidavit upon which the order to show cause was granted. But this appeal is not from the order to show cause. It is from the final order of the special term granting the motion for a bill of particulars. Any objections to the regularity of the papers upon which the order to show cause was granted should have been addressed to the special term. In so far as the motion papers affect the final order of the special term, we are of the opinion that there is not any irregularity of sufficient importance to warrant a reversal of the order. The learned counsel for the appellant states the alleged irregularities to be (1) that "the affidavit does not state that no previous application has been made for the order to show cause, as required by rule 25 of the general rules of practice;" and (2) that "the said affidavit does not state any facts showing that an order to show cause is necessary, and without such statement the appellant cannot be deprived of the usual notice of motion." With regard to the first assignment of irregularity, the appellant's contention is not well taken. Rule 25 of the general rules of practice provides that "whenever application is made ex parte, on affidavit, to a judge or court, for an order, the affidavit shall state whether any previous application has been made for such order," etc., "and for the omission to comply with this rule any order made on such application may be revoked or set aside." But the failure to state that no previous application has been made is not an irregularity which compels the court to refuse to nt the order, or to vacate it after it has been granted. Bean v. Tonelle, 24 Hun, 353. In point of fact, moreover, the affidavit states that a previous application has been made and denied, but that leave was granted to renew the same upon proper affidavits. With respect to the other assignment of irregularity, it will not be denied that the affidavit is insufficient under rule 37 of the general rules of practice and section 780 of the Code; but, as we have above intimated, this irregularity
v.24 N. Y.S.no.1-8
only affects the order to show cause, and the objection should have been taken at the special term; and, as it was not taken, it must be held to have been waived. The order appealed from should be affirmed, with $10 costs and disbursements.
(4 Misc. Rep. 424.)
PEOPLE ex rel. BAKER v. COACHMAN'S UNION BEN. ASS'N OF NEW YORK.
(Superior Court of New York City, General Term. July 3, 1893.) ASSOCIATIONS-EXPULSION OF MEMBERS-WAIVER OF RIGHTS.
Where a member of a benevolent association, against whom charges have been made, voluntarily attends the meeting by which the charges are triable, and defends himself on the merits, he thereby waives the requirements of the constitution and by-laws that he should have been served with a certain notice and a copy of the charges, and he cannot raise the objection after an order of expulsion has been entered against him. People v. Musical Mutual Protective Union, 23 N. E. Rep. 129, 118 N. Y. 101, distinguished.
Appeal from special term.
Application by Patrick Baker for mandamus to the Coachman's Union Benevolent Association of the City of New York to compel respondent to restore relator to membership. From an order denying the application, relator appeals. Argued before FREEDMAN and GILDERSLEEVE, JJ.
G. R. Carrington, for appellant.
Assuming, but not deciding, that the learned judge below erred in holding the judgment of the city court in the action brought by Baker to recover for sick benefits to be a bar to the present application, the denial of the application for a writ of mandamus may still be sustained for the following reasons, viz.:
Although the relator, according to the requirements of the constitution and by-laws of the association, should have been served with a certain notice, and a copy of the charges in writing, it was competent for him to waive these requirements, and by attending the meeting which tried him, and making no objection on any such ground, or on the ground that he was not prepared to enter upon his defense, but proceeding to defend himself on the merits, and speaking in opposition to the resolution of expulsion, he did waive them. By voluntarily appearing and submitting to the jurisdiction of the meeting, without protest, and litigating the issue on its merits, he precluded himself on the point he now seeks to raise. In this respect the case at bar is entirely different from People v. Musical Mutual Protective Union, 118 N. Y. 101, 23 N. E. Rep. 129. the case last referred to the relator appeared, and denied the jurisdiction, and then withdrew.
In the next place, the by-laws of the association do not require a vote of two-thirds of all the members to an expulsion, but only