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present action, because it is an adjudication against the plaintiff's right to recover for said alleged injuries, and also because it deprives these defendants of the right of recovery over against said Shaffer."
The defendant therefore claims that the complaint in this action be dismissed, with costs.
To this portion of the answer of the defendant the plaintiff interposed a demurrer, which was tried at special term, and sustained, and the defendant has appealed to this court.
The statement in the answer shows that Shaffer was the wrong. doer, and that his act was the cause of the injury sustained by the plaintiff. So it seems to follow that, if Shaffer was not liable for creating and maintaining the obstruction, the defendant can not be liable for the failure to remove it. If Shaffer was not liable, because the plaintiff's own negligence produced the injuries of which she complains, the defendant is not liable, for the same reason. Shaffer and the defendant were not joint wrongdoers, and the rule that one wrongdoer cannot recover against or compel contribution by another does not apply. The relation between Shaffer and the defendant was analogous to that of principal and agent, or principal and surety, or master and servant; and the rule in such cases is that a judgment in favor of the principal or the surety, upon a ground equally applicable to both, should be accepted as conclusive against the plaintiff's right of action. Herm. Estop. p. 169; Castle v. Noyes, 14 N. Y. 329. It is now settled in this state that where a person has negligently or wrongfully created an obstruction or defect in a street, and a municipal corporation is compelled to pay a judgment for damages sustained by an individual, caused by such obstruction or defect, the municipality has an action over against the person creating or maintaining such obstruction or defect. Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550. Under this rule of law the turnpike company would be entitled to recover from Shaffer any amount the company might recover against it. Such right would rest upon the principles of subrogation. The turnpike company would be entitled to be subrogated to plaintiff's right of action against Shaffer, but the judgment on the merits in Shaffer's favor, in the plaintiff's suit against him, relieves him of all liability to the plaintiff, or any person claiming under her, for the same cause of action. The plaintiff, therefore, by being barred by the judgment in Shaffer's favor, is equally barred from any action against the company, under the rule that whatever discharges the principal discharges the surety. As she had no cause of action against Shaffer, she can have no cause of action against the defendant, and therefore the portion of the answer to which the demurrer relates does set up, in our judgment, a valid defense to the action; and the order appealed from should be reversed, with $10 costs and disbursements, and the defendant should have judgment upon the demurrer, with costs. All concur.
(71 Hun, 190.)
ACKERMAN v. HERRICK.
(Supreme Court, General Term, Second Department. July 28, 1893.) CHANGE OF VENUE-CONVENIENCE OF WITNESSES.
Where the party moving for a change of venue for the convenience of witnesses claims and seems to have the larger number of witnesses to be convenienced by the change, an order granting the motion will not be disturbed on appeal.
Appeal from special term, Orange county.
Action by Matilda Ackerman, administratrix, etc., of John K. Ackerman, deceased, against Mary A. Herrick. From an order granting defendant's motion to change the place of trial from Orange to Ulster county, plaintiff appeals. Affirmed.
Defendant's affidavit for a change of venue is as follows:
"That this action is brought to recover the sum of seven thousand eight hundred and sixty dollars and eighty-two cents, with interest since July 1, 1891, which is alleged to be represented by two deposit books, issued by the Ulster County Savings Institution, of the city of Kingston, Ulster county, N. Y., and by one deposit book issued by the Newburgh Savings Bank. The defense is that one of the said deposit books issued by said institution is numbered 21,937, and that the deposits represented thereby were made by the defendant herself, with her own money, and in her own name, and that ever since the date of the first deposit thereon, to wit, February 19, 1887, she has had the actual and rightful possession thereof, and since that time has been, and still is, the sole and exclusive owner thereof, and of the deposits, credits, money, and property represented thereby. That the other deposit book issued by said institution is numbered 23,238, and was issued to John K. Ackerman in his lifetime, but the said John K. Ackerman, deceased, on or about January 1, 1890, duly assigned, gave, and delivered said deposit book, and the deposits, credits, moneys, and property represented thereby, to this defendant. That she has ever since that time been in the actual and rightful possession of the same, and is the sole and exclusive owner of the said deposit book, and is entitled to the deposits, credits, moneys, and property represented thereby. That the said Ulster County Savings Institution has been restrained by the court from paying a portion of the deposit and money represented by said deposit books, and from paying interest for a portion of the time for which interest is claimed by the complainant herein. That said transaction took place and occurred in Ulster county. That said deposit book issued by the Newburgh Savings Bank is numbered 36,328, and that the deposits entered therein and represented thereby were made in trust for this defendant by her father, the said John K. Ackerman, deceased, and he caused the following entry to be made upon the said deposit book and the books of the said bank: 'J. K. Ackerman, in trust for Mary A. Herrick.' That the defendant thereby became entitled thereto, and to the credits, deposits, and money represented thereby. That the said deposit book was delivered to this defendant by the plaintiff with the intention that she should draw the money thereon, which she accordingly did. That the next circuit in the county of Ulster is appointed to be held on the 10th day of April, 1893, and the next circuit court in Orange county is appointed to be held at Newburgh on the 10th day of April, 1893. That there has been no circuit in either county at which this use could be noticed for trial since issue was joined as aforesaid. That this deponent has fully and fairly stated to her counsel the facts she expects to prove by each and every one of the following witnesses, viz. Daniel Herrick, John V. Herrick, Irving Herrick, Charles W. Deyo, Charles D. Bruyn, Cornelius Hume, Samuel D. Coykendall, Alfred Van Nostrand, John G. Burger, and George W. Burger, and John B. Alliger, the treasurer of said Ulster County Savings Institution. That each and every one of them are material and necessary witnesses for her defense on the trial of this cause, as she is advised by her said counsel, and verily believes;
and that without the testimony of each and every one of the said witnesses this defendant cannot safely proceed to the trial of this cause, as she is also advised by her said counsel and verily believes; and that each and every one of said witnesses reside in the county of Ulster; and that all of said witnesses reside in the city of Kingston, except John G. Burger, who resides at St. Remey, about three miles from said city of Kingston. That the facts sho expects to prove by said witnesses are as follows: By said Daniel Herrick, Irving Herrick, John V. Herrick, Samuel D. Coykendall, George W. Burger, and John G. Burger, that the said John K. Ackerman, deceased, in his lifetime told and declared to each and every one of them that he had given and delivered the said deposit books issued by the Ulster County Savings Institution, and the deposits and money represented thereby, to this defendant, and that she was the owner of the same. That she expects to prove by Alfred Van Norstrand that he was the bookkeeper of the Ulster County Savings Institution at the time the said deposits were made in the said institution, and that the defendant personally made a number of said deposits. That she expects to prove by Charles W. Deyo, Charles D. Bruyn, and Cornelius Hume that the assignment in said deposit book numbered 23,238 is in the handwriting of M. T. Trumpbour, and that he signed the same as a witness thereto. That she expects to prove by John B. Alliger that he is the treasurer of said Ulster County Savings Institution, and as such has the charge, control, and custody of the books of said institution; that the original deposit represented by said book numbered 21,937 was made in the name of this defendant, and was so entered upon the books of said institution; that the said institution, its officers and agents, have been restrained from paying out a portion of the aforesaid deposits, and that they still retain the same, and the amount thereof; that the said institution, for a portion of the time for which interest is claimed by the complainant, have been restrained from paying any interest on its deposits, and she expects said witness to produce upon the trial of this action the books of said institution which contain the accounts of the said deposits represented by said bank books numbered 21,937 and 23,238.”
Plaintiff's counter affidavit is as follows:
"That this deponent has fully and fairly stated to her counsel the facts she expects to prove by each and every one of the following witnesses, viz. Tillie White, Maggie Whitehead, Hattie Gordon, Dr. James Gordon, Abram M. Cook, Cornelius W. Blauvelt, John Hayes, George Barber, George W. Decker, George Kraft, L. S. Sterrit, Robert N. Whelan, Thomas F. Balfe, and Fred C. Balfe. That she herself and each and every one of them is a material and necessary witness for the plaintiff on the trial of this action, as she is also advised by her said counsel and verily believes, and that each and every one of the said witnesses resides in the city of Newburgh, Orange county. That the facts she expects to prove by said witnesses are as follows, viz.: By Tillie White and deponent the statements and admissions of the defendant that money in the Ulster County Savings Bank was the property of said John K. Ackerman; and also admissions to the same effect by the husband of the defendant, in case he should be a witness. By Cornelius W. Blauvelt, John Hayes, George Barber, and George W. Decker, who worked with him for the Pennsylvania Coal Company at Newburgh, and who were especially intimate with him, the amount of money he earned, and what he did with it; that he deposited part in Newburgh Savings Bank and part in Ulster County Savings Bank, and that such money so deposited in said banks was all the proceeds of his (Ackerman's) own earnings. By Robert N. Whelan, Thomas F. Balfe, and Fred C. Balfe, all of whom are employed in the Newburgh Savings Bank, that Ackerman deposited all the moneys in the Newburgh Savings Bank book which is set forth in the complaint; that J. K. Ackerman retained possession of said book himself, and had possession of it at the time of his death, and that defendant never had possession of said book until after the death of said Ackerman, and furnished no part of the money that was deposited in said Newburgh Savings Bank; also the reason why he deposited his money in different banks and names was because full Interest was only paid on a certain amount. By deponent, Tillie White,
Maggie Whitehead, and Hattie Gordon, who were members of the household of said J. K. Ackerman, his having money of his own earnings in both the Ulster County and the Newburgh Savings Banks; that the money belonged to him, and not to defendant; that the Newburgh Savings Bank book was in his possession at his house, at Newburgh, at the time of his death, and never had been out of his possession; and other matters pertinent to the issues. By Dr. James Gordon, Mr. Ackerman's physician, Abraham M. Cook and George Kraft, his friends, that he had money of his own earnings, which he deposited in both Ulster County and Newburgh Savings Banks, and that he was the owner, and in possession, of a book in each bank, which are the subjects of this action. By L. S. Sterrit the circumstances under which the Newburgh Savings Bank book was given up after the death of Mr. J. K. Ackerman. That deponent is willing to admit on the trial of this action that the assignment in book No. 23,238 is in the handwriting of M. T. Trumpbour, and that he signed the same as a witness. That such assignment reads as follows: 'In case of my death, to my daughter Mary Ann Herrick. Kingston, Jan. 1, 1890. J. K. Ackerman. Witness: M. T. Trumpbour,'which does away with the necessity of the attendance of Charles W. Deyo, Charles D. Bruyn, and Cornelius Hume, proposed witnesses for the defendant. That she is also willing to admit on the trial any transcript from the books of the Ulster County Savings Institution, certified to by its officers, which will save the necessity of their attendance or the production of the original books. That the three Herricks named as witnesses for defendant are members of her family. That all cases in Orange county can be tried at the first circuit court at which they are reached, but this is not so in Ulster county, and it takes a long time to reach and try a case there."
Argued before BARNARD, P. J., and DYKMAN and PRATT,
William D. Dickey, for appellant.
J. E. & J. G. Van Etten, for respondent.
PRATT, J. This is an appeal from an order changing the place of trial of an action from Orange to Ulster county. There is not such a preponderance of evidence in the affidavits that we are enabled to say there was such an abuse or misuse of discretion in the court below as to warrant us in reversing the order. The respondent claimed and seemed to have a larger number of witnesses whose convenience would be promoted by a change of venue, and we cannot say that he would not be entitled to produce them upon the trial, even if the appellant should stipulate to admit copies of the bank books. Considering all the facts and circumstances, we think the order should be affirmed, without costs.
DYKMAN, J., concurs.
BARNARD, P. J., (concurring.) There is nothing in the papers which tends to invalidate the title of the defendant to the Newburgh Savings Bank book. The deceased intestate made the deposit and took a book in the name of "J. K. Ackerman, in trust for Mary A. Herrick." This raises an inference of an intent to give the money and create herself the depositor, the trustee of the donor. Martin v. Funk, 75 N. Y. 134; Mabie v. Bailey, 95 N. Y. 206. One of the other bank books was deposited in the name of the defendant, and there is nothing stated in either the complaint or affidavits
which constitutes any claim by the administratrix to it. The other book represents deposits made by the deceased in her own name. This book contains this indorsement: "In case of my death, to my daughter Mary Ann Herrick. Kingston, Jany. 1, 1890." The defendant states in her affidavit that this book, with its indorsement on it, was delivered to her at about the date of the assignment. If this was so, and she agreed to pay the interest to the deceased for her life, the gift would be complete. Young v. Young, 80 N. Y. 422. This transaction is one which arose in Ulster county, and requires the witness to the transfer, as well as such, if any, besides the defendant who can testify to the delivery of the book in January, 1890. The order changing the place of trial from Orange county to Ulster was therefore right, and the order should be affirmed, with costs and disbursements.
O'SHAUGHNESSY v. MORNING JOURNAL ASS'N.
(Supreme Court, General Term, Second Department. July 28, 1893.) LIBEL-WHAT ACTIONABLE.
A newspaper article stating that plaintiff, a detective officer, joined in the pursuit of an escaped prisoner; that on the latter's capture plaintiff struck him so that he dropped like a log;" that the prisoner was handcuffed, douched with cold water, and tossed bodily into a van; that the spectators cried "Shame!" and called plaintiff a "big brute," and that the capture could have been made without such rough treatment and free use of plaintiff's fists, -is libelous.
Exceptions from circuit court, Kings county.
Action by James O'Shaughnessy against the Morning Journal Association. The court granted defendant's motion to dismiss, and ordered that plaintiff's exceptions be heard in the first instance at general term. Exceptions sustained.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. Charles J. Patterson, for appellant.
Townsend, Dyett & Einstein, (B. F. Einstein and Henry Yonge, of counsel,) for respondent.
BARNARD, P. J. The complaint set forth an article published by the defendant of and concerning the plaintiff, which was sufficient to carry the case to the jury. The charge in the article is to the effect that the plaintiff, a detective officer, joined in the pursuit of an escaped prisoner in Brooklyn; that the plaintiff, upon the capture of the prisoner, struck him with such force that he dropped like a log, and was handcuffed before he recovered, and douched with cold water; that the spectators cried "Shame!" and called the plaintiff a big brute; that there was no sufficient occasion for this rough treatment; that the captured prisoner was tossed bodily into a van; that the capture could have been made without such a free use of the officer's fists. This is charged to be false, and to have been maliciously published and composed by