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ue of the property, but of all the necessary expenses incurred in fixing that value. This would seem to be dictated by sound morals, as well as by the spirit of the Constitution, and it will not be presumed that the Legislature has intended to deprive the owner of property of the full protection which belongs to him as a matter of right."

In the case now before us the statute has provided, in addition to the provisions of the charter, by section 62 of the rapid transit act (Laws 1894, p. 1896, c. 752), that the

"fees of the commissioners and the salaries and compensation of their employés, and all other necessary expenses in and about the said proceedings provided for by this act, and such allowance for counsel fees as may be made by order of the court, and all reasonable expenses incurred by said counsel to the corporation, or other principal legal adviser of said counsel designated by him for the proper presentation and defense of the interests of said city before said commissioners and in court, shall be paid by the comptroller or other chief financial officer of said city out of the funds referred to in the last preceding section."

This language, it seems to us, is intended to provide for the case of counsel fees, in harmony with the general principles above enunciated, and we are of the opinion that the court at Special Term was not without power to grant the motions.

The report of the commissioners, together with the order affirming the same, should be reversed, and the case should be sent back to the commissioners to redetermine the matters, under the rules suggested in this opinion, and the orders denying costs and allowances, on the ground of lack of power, should be reversed. All concur.

(128 App. Div. 182.)

MAGAGNOS v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. October 22, 1908.) 1. MASTER AND SERVANT-INJURIES TO THIRD PERSONS-PUNITIVE DAMAGES. In an action against a street railroad for an arrest by its employé, plaintiff could not recover punitive damages, unless the employé acted through malice in which defendant shared, and an instruction permitting the award of punitive damages if defendant ratified its employé's act and the jury thought it necessary to add something by way of punishment, was improper.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1273.]

2. DAMAGES-PUNITIVE DAMAGES-GROUNDS-MALICE.

Malice may be proved, so as to justify the award of punitive damages against an employer for the act of his servant, by showing that the tort was committed to gratify some actual grudge or ill will, or that it was committed recklessly or wantonly, without regard to the rights of others. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Damages, §§ 193-201.]

3. MASTER AND SERVANT - INJURY TO THIRD PERSON - PUNITIVE DAMAGESQUESTION FOR JURY.

In an action against an employer for the tort of a servant, whether malice existed, so as to justify the award of punitive damages, is for the jury, and, even if they find malice, the award of punitive damages is discretionary with them.

Hooker, J., dissenting.

and 146 New York State Reporter

Appeal from Trial Term, Kings County.

Action by James K. Magagnos against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.

D. A. Marsh, for appellant.

Chase Mellen, for respondent.

GAYNOR, J. An employé of the defendant arrested the plaintiff for shoving passengers as they were entering one of its cars, thereby causing a woman to be thrown down, as he charged. The magistrate discharged the plaintiff, and this is an action for damages for false arrest against the company only. The learned trial judge charged the jury that the case was not one for smart money damages against the company, but being requested by counsel for plaintiff he afterwards charged that if the defendant

"ratified what had been done by their employé, then you may, if you think it necessary, add something to the compensation by the way of punishment to the defendant for doing wrong."

And farther:

"You are not bound ever to add anything by way of punishment. You only may do it if you think it is wise to do it; if you think that for any public reason it is wise to punish the defendant beyond making it make the plaintiff whole."

This was error. Smart money may only be given for malice. Whether the defendant could be mulcted in smart money depended on whether its employé acted through malice, and not then unless it shared therein. (Cleghorn v. N. Y. C. R., 56 N. Y. 44, 15 Am. Rep. 375; Voltz v. Blackmar, 64 N. Y. 440; Muckle v. Rochester R. Co., 79 Hun, 32, 29 N. Y. Supp. 732; Craven v. Bloomingdale, 171 N. Y. 439, 64 N. E. 169; East v. B. H. R. Co., 115 App. Div. 683, 101 N. Y. Supp. 364); and the jury were not instructed on the head of malice at all. The jury were not at liberty to give smart money unless such malice existed. Malice is proved in such cases by showing that the tort was committed to gratify some actual grudge or ill will, or by showing that it was committed recklessly or wantonly, i. e., without regard to the rights of the plaintiff, or of people in general. It is not enough that a wrong was done; it must have been done maliciously. It is sometimes inadvertently said that smart money may be given for malice, or for recklessness or wantonness, instead of saying that malice may be found from recklessness or wantonness, as well as from grudge or ill will. It is for the jury to say whether malice existed, and it is always discretionary with them whether they shall give smart money damages or not, even though they find malice. Instead of making the giving of smart money depend on whether there was malice, the learned trial judge made it depend only on whether the defendant ratified the false arrest, and whether the jury thought that "for any public reason it is wise to punish the defendant." A

defendant may not be punished by smart money damages on any loose ground, but only for malice.

The judgment should be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur, except HOOKER, J., who dissents.

ZETTEL v. TAYLOR et al.

(Supreme Court, Appellate Division, Second Department. October 22, 1908.) 1. PLEADING-COMPLAINT FAILURE TO TRAVERSE.

Allegations of a complaint are admitted by defendant's failure to deny

them.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 270-275.]

2. NEGLIGENCE-INJURY TO PEDESTRIAN-EVIDENCE-SUFFICIENCY.

That, while defendant was constructing a fire escape above a sidewalk, a hammer used in "fixing" fire escapes fell upon a pedestrian, and that immediately thereafter other tools used in such work were found on the fire escape above the sidewalk, shows prima facie that the accident happened through defendant's negligence; no other work upon the building appearing to be in progress.

Appeal from Trial Term, Kings County.

Action by Meyer Zettel against James Taylor and others. From a judgment for plaintiff, defendant Taylor appeals. Affirmed.

Argued before WOODWARD, HOOKER, GAYNOR, RICH, and MILLER, JJ.

W. E. Benjamin, for appellant.

Nathan D. Stern (Julius J. Michael, on the brief), for respondent.

RICH, J. The only question presented for our consideration by this appeal is whether upon the trial there was sufficient evidence connecting the defendant with the happening of the accident to justify the submission of the case to the jury. The complaint alleges "that the defendant James Taylor was at all the times hereinafter mentioned engaged in the construction, building, repairing, and placing of certain iron fire escapes and the appurtenances thereto belonging" upon a building in the city of New York. This allegation includes the time of the accident, and is admitted by the failure to deny it. The evidence shows that between half-past 11 in the forenoon and noon, while the plaintiff was passing along the sidewalk in front of the building upon which the defendant was engaged in constructing the fire escape, an iron worker's hammer, weighing from eight to ten pounds, "that they fix those fire escapes with," as the plaintiff says, fell from above and struck him on the head, inflicting the injuries for which he has recovered. Immediately after the accident tools and instruments used for putting up fire escapes were found lying on the fire escape at the fourth or fifth story of the building-some 40 or 50 feet above the sidewalk-and the witness who found them testified that he did not see any other workmen about and did not see any tools, except on the fire escape. The defendant gave no evidence.

and 146 New York State Reporter

I think the uncontradicted evidence, in connection with the admission, sufficiently connected the defendant with the accident to establish a prima facie case. Wolf v. American Tract Society, 164 N. Y. 30, 58 N. E. 31, 51 L. R. A. 241, and Jack v. McCabe, 56 App. Div. 378, 67 N. Y. Supp. 810, cited by the appellant, are not in point. In those cases the employés of a large number of independent contractors were engaged in work upon the building at the time of the accident, and it was not shown which contractor's employés were guilty of the negligence resulting in the accident. In the case at bar it does. not appear that any work was being done upon the building, except by the servants of the defendant. The distinction is clearly apparent. The judgment and order must be affirmed, with costs. All concur.

In re GREINES et al.

(Supreme Court, Special Term, New York County. October 19, 1908.) MECHANICS' LIENS UNDERTAKING-CANCELLATION.

The undertaking given to discharge a mechanic's lien, pursuant to Lien Law (Laws 1897, p. 523, c. 418), § 18, subd. 4, cannot be canceled where the time within which an action which might be brought to recover a judgment against the property on the claim contained in the notice of lien has expired.

In the matter of the application of Charles Greines and another to cancel and discharge a bond given by the American Bonding Company to discharge a mechanic's lien by John F. Cronin, lienor, pursuant to Lien Law (Laws 1897, p. 523, c. 418) § 18, subd. 4. Motion denied. Saul J. Baron (J. J. Pantell, of counsel), for the motion. Henry L. Herzog, opposed.

GIEGERICH, J. Although the time within which an action can be brought by the lienor upon the claim contained in the notice of lien seems to have expired (Uris v. Brackett Realty Co., 114 App. Div. 29, 99 N. Y. Supp. 642), counsel for the applicants has not cited, nor have I been able to find, any authority or provision of law which authorizes the cancellation of the undertaking given to discharge a mechanic's lien, pursuant to subdivision 4 of section 18 of the lien law (Laws 1897, p. 523, c. 418), where, as here, the time within which an action which might be brought to recover a judgment "against the property" on the claim contained in the notice of lien has expired.

Hafker v. Henry, 5 App. Div. 258, 39 N. Y. Supp. 134, quoted by the respondent, and Matter of Thirty-Fifth St. & Fifth Ave. R. R., 121 App. Div. 625, 106 N. Y. Supp. 390, relied upon by the applicants, do not apply, because both those cases arose under provisions relative to the discharge of a lien by a deposit of the amount claimed (Laws) 1885, p. 592, c. 342, § 24, subd. 2, as superseded by Laws 1897, p. 523, c. 418, § 19), which are unlike those relating to a discharge by the giving of an undertaking (Laws 1897, p. 523, c. 418, § 18, subd. 4, which superseded Laws 1885, p. 592, c. 342, § 24, subd. 6). See Matter of Thirty-Fifth St. & Fifth Ave. R. R., supra.

The motion to cancel the undertaking given to discharge the lien and to release the sureties thereon from any and all obligations thereunder is therefore denied, but without costs.

WEINSTEIN et al. v. O'LEARY.

(Supreme Court, Appellate Division, First Department.

PLEADING (§ 317*)—BILL OF PARTICULARS-RIGHT TO.

October 23, 1908.)

Defendant, in a suit for a gross sum for injury to personalty and to a freehold, is entitled to a bill of particulars.

[Ed Note. For other cases, see Pleading, Cent. Dig. §§ 954-962; Dec. Dig. § 317.*]

Appeal from Special Term.

Action by Henry Weinstein and another against John O'Leary. From an order denying a bill of particulars, defendant appeals. Reversed, and motion partly granted.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CIARKE, and SCOTT, JJ.

Samuel P. Goldman, for appellant.
Samuel Fine, for respondents.

PER CURIAM. The action is for damages to personal property and for injury to the freehold, and is a case in which a bill of particulars is peculiarly appropriate. The plaintiffs have been able to estimate the gross damage which they deem themselves to have suffered, and should find no difficulty in stating the details thereof.

The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion granted, except as to the sixth item of particulars demanded.

ARDOLINO v. REINHARDT.

(Supreme Court, Appellate Division, First Department. October 30, 1908.) APPEAL AND ERROR (§ 762*)-REJOINDER BRIEF-LEAVE TO FILE-MOTION TO STRIKE.

Where appellant's attorneys refrained from including material points in their original briefs, and presented such points in reply briefs after they had received respondent's answering briefs, respondent's remedy was by application to have appellant's reply briefs stricken from the files, and not by motion for leave to file a rejoinder brief to answer such contentions.

Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 762.*] Action by John Ardolino against George N. Reinhardt. On motion by respondent to file a rejoinder brief. Denied.

Argued before PATTERSON, P. J., and MCLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

Palmieri & Wechsler, for the motion.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 112 N.Y.S.-41

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