and in thetext-books, and has thus become a leading authority upon the question under discussion. It is nowhere suggested in that case, either in the facts or in the opinion, that it was necessary, to sustain the judgment in favor of the plaintiff, that the threat must have been of an unlawful or illegal arrest. For all that appears, the husband was guilty of the charge made, and on that assumption it is peculiarly like the case at bar. Other authorities sustain the same principle. In Haynes v. Rudd, 30 Hun, 237, it was said: "We think that when threats of a lawful prosecution are purposely resorted to for the purpose of overcoming the will of the party threatened by intimidating or terrifying him, they amount to such duress or pressure as will avoid a contract thereby obtained." This statement of the law was not disturbed by this court, the reversal being put on other grounds. In Schoener v Lissauer, 107 N. Y. 111, 13 N. E. Rep. 741, a bond and mortgage was obtained from the mortgagor by the threat that, unless it was given, his son, who was charged with embezzlement, would go to state's prison. The mortgage was set aside, and this court sustained the judgment. After stating the facts, it was said by Judge RAPALLO: "On the merits this judgment is sustained by Bayley v. Williams, 4 Giff. 638, affirmed L. R. 1 H. L. 200, and Davies v. Insurance Co., L. R. 8 Ch. Div. 469." The first case cited by Judge RAPALLO fully sustains the recovery in the case at bar. In Harris v. Carmody, 131 Mass. 51, a mortgage was obtained from a father on the threat that his son, who was charged with forging his father's name to notes held by the plaintiff, would be sent to the state-prison. It was held that the father could avoid the mortgage on the ground that it was made to relieve the son from duress. See, also, Taylor v. Jaques, 106 Mass. 291. In none of the cases cited was it suggested that the threat which induced the making of the contract was of an illegal prosecution, or an unlawful arrest, and in most of them it appears that the person charged with an offense was guilty. The principle which appears to underlie all of this class of cases is that, whenever a party is so situated as to exercise a controlling influence over the will, conduct, and interest of another, contracts thus made will be set aside. 1 Story Eq. Jur. §§ 239-251; 2 Pom. Eq. Jur. §§ 942, 943; Lomerson v. Johnston, 44 N. J. Eq. 93, 13 Atl. Rep. 8: Ingersoll v. Roe, 65 Barb. 346; Fisher v. Bishop, 36 Hun, 112, 108 N. Y. 25, 15 N. E. Rep. 331; Barry v. Society, 59 N. Y. 587. In the last case cited it was said: "Where there exists coercion, threats, compulsion, and undue influence, there is no volition. There is no intention or purpose but to yield to moral pressure, for relief from it. A case is presented more analogous to a parting with property by robbery. No title is made through a possession thus acquired." It was not error, therefore, for the court to deny the motion to dismiss the complaint on the ground that there was no evidence that the money was paid under duress. Upon the evidence it was a question of fact whether the agreement was executed and the money paid in consequence of threats

and undue influence. Dunham v. Griswold, 100 N. Y. 224, 3 N. E. Rep. 76. If the money was paid by the plaintiff through fear produced by Mr. Castre's representations that, if the claim was not settled, her husband would be arrested and imprisoned, the payment was not a voluntary one, and the defendant obtained no title to the money received. This question was settled in plaintiff's favor by the verdict of the jury.

The point made by the appellant, that the transaction was a compounding of a felony, does not appear to be raised by any appropriate exception in the case. It was not suggested on the trial either in the motion to dismiss or in the requests to charge. There was no instruction asked or given to the jury on the subject. The question is therefore not before this court.

Upon the question of ratification the court instructed the jury as follows: "Before there can be a ratification to prevent her recovery in this action there must be some distinct act of hers, after knowledge of the facts, and knowledge by her that she had a right to rescind the agreement." An exception was taken to this part of the charge, and the claim is now made that this court should hold as a matter of law that plaintiff had waived her claim. The defendant appears to have acquiesced in the submission of this question to the jury as one of fact for their determination. It was not made one of the grounds of the motion to dismiss. In part, at least, the charge of the court was correct. I do not understand the learned counsel for the appellant to criticise that part of the charge relating to ratification by some act, "after knowledge of the facts." If any qualification was proper in the expression as to her "knowledge * that she had a right to rescind," it was the duty of the appellant to suggest it. A general exception cannot be sustained. Smedis v. Railroad Co., 88 N. Y. 15; Doyle v. Infirmary, 80 N. Y. 634. We have carefully examined the exceptions to the admission of testimony, and, while some of the evidence was immaterial, we think none of the rulings are of a character to call for a reversal of the judgment. The judgment should be affirmed, with costs. All concur, except BRADLEY, J., not voting.

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(116 N. Y. 615)

HUNTER V. NEW YORK, O. & W. Ry. Co.1 (Court of Appeals of New York, Second Division. Dec. 3, 1889.)

MASTER AND SERVANT-JUDICIAL NOTICE.

In an action against a railroad company for personal injury, by a brakeman who had struck his head against something while sitting on top of a box-car, going through a tunnel, the negligence charged was in not giving plaintiff notice of a brick arch in the tunnel, which reduced its height to 4 feet 7 inches above the top of the car. Held, that a judgment for plaintiff would be reversed, as the court would take judicial notice that a man could not strike his head against an obstruction that distance above where he was sitting, unless he was 9 feet high, and that no man ever was known to be 9 feet high. BRADLEY and VANN, JJ., dissenting.

Appeal from supreme court, general term, second department.

Reversing 42 Hun, 657, mem.

Action by Charles H. Hunter against the New York, Ontario & Western Railway Company for personal injuries received by him while in defendant's service. Judgment for plaintiff affirmed by the general term. Defendant appeals.

William Van Amee, for appellant. T. A. Read, for respondent.

BROWN, J. Assuming that the plaintiff was struck upon the head by the brick arch within the tunnel, and that he was, as a result of that blow, thrown from the cars, and injured, I think there was ample evidence for the jury to determine that the defendant was guilty of neglect producing the accident, and that the plaintiff was free from carelessness contributing to it. The jury were warranted in finding that the only notice that the plaintiff had of the existence of the arch was that received from the tell-tale. This was located about 200 feet west of the west entrance of the tunnel. It served as a warning of the approach to the tunnel, but it gave no notice of the obstruction within the tunnel. A person receiving its warning, and noticing the height of the tunnel, might naturally suppose that the height at the entrance would be maintained throughout its length; and, if the height was at any point reduced, that notice of that fact would be given. Relying, therefore, upon what would be apparent to his observation, he was exposed to a danger of which he had no notice or information. The defendant evidently perceived the weakness of this part of its case, and gave evidence of actual notice of the existence of the arch to plaintiff, but upon that question the verdict of the jury is in accord with the plaintiff's testimony. The plaintiff also testified that he was instructed to ride upon the top of the cars at places where it might be necessary to apply the brakes. He was approaching such a point on the road when the accident happened; and it was a fact for the jury to determine whether, in going upon the top of the car at the time he did, he was guilty of any negligence. Certainly, if he had a right to assume, as we think he had, in the absence of notice as to the existence of the arch, that there was room in the tunnel to maintain a standing position, he would not necessarily be careless in occupying such a position on the car near his post of duty. The difficult question in the case is to reconcile the plaintiff's theory of the accident with the evidence. It appears that the tunnel at the west entrance was 20 feet high. Two hundred feet from the entrance the brick arch began, and continued for a distance of 85 feet. It reduced the height of the tunnel to 15 feet 9 inches, measured from the rail. The plaintiff testified that he left the engine and went on the top of a box-car, and sat down. His exact words are: "Í was sitting down on the box-car,-on the head box-car,-where the brake was. I went out on the box-car and sat down, and that is the last I remember." This car was identified and proven by a witness called by plaintiff to have been 11 feet 2 inches high from the rail to the foot-board that the men walk on, in the center of the roof. There was, therefore, a space of 4

feet and 7 inches between the top of the car, where plaintiff was sitting, and the bottom of the arch. There was a cut or gash on plaintiff's forehead which, it is claimed, he received by coming in contact with the arch, so that his head, to have received a blow at that point, must have been at least 4 feet 8 inches above the foot

board on the top of the car. The plaintiff's counsel, in his brief, has endeavored to show the space between the car and the arch to have been much less; but the measurements appear, without contradiction, to be those I have stated. The theory of the plaintiff's case was that he was rendered unconscious by a blow received on his head, from coming in contact with the arch, and that he was carried by the train to a point about 300 feet east of the east end of the arch, where he fell from the car, and was run over, and his foot crushed. That he might have been carried to the point where he was found is not improbable; but that he could Lave received a blow on the head from the arch while sitting upon the top of the car would appear to be physically impossible.

There was no evidence given on the trial as to the plaintiff's size or height, and the argument is now made that as the jury saw him, and could therefore judge of his size, it must be assumed that it was not impossible for his head to have reached as high as the arch; and the learned judge who presided at the trial appears to have submitted this question to the jury, saying: "If the plaintiff was sitting down, it is for you to say whether his head would reach to that height." The verdict of the jury rests upon an affirmative answer to this question; and we are now called upon to say whether we will accept that finding, and sustain the judgment, or whether we will take judicial notice of the height of the human body, and the measurements of its separate parts, and, so taking notice of those facts, reverse a judgment that is based upon a finding clearly contrary to the laws of nature. No exception was taken to the charge; but, by an exception to the denial of the motion to dismiss the complaint, made at the close of the plaintiff's case, and renewed at the close of the testimony, on the ground that the facts proven were insufficient to constitute a cause of action, the question is properly before this court. Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved, and the apparent justice of the case. The rule that permits a court to do so is of practical value in the law of appeal, where the evidence is clearly insufficient to support the judgment. In such case, judicial notice may be taken of facts which are a part of the general knowledge of the country, and which are generally known, and have been duly authenticated in repositories of facts, open to all; and especially so of facts of official, scientific, or historical character. Thus, it has been held that courts will take judicial notice of matters of public history, such as the existence of the late civil war, and the particular acts which led to it, (Swinnerton v. Insurance Co., 37 N. Y. 174; Woods v.

66

Wilder, 43 N. Y. 164;) of the general course of business in a community, including the universal practice of the banks, (Bank v. Hall, 83 N. Y. 338; Yerkes v. Bank, 69 N. Y. 382-387;) that books of general record, giving descriptions and standing of all ships, known as American Lloyds," "The Green Book," and "The Record Book," are referred to by business men for the purpose of ascertaining the condition, capacity, and value of ships, (Slocovich v. Insurance Co., 108 N. Y. 56, 63, 14 N. E. Rep. 802;) of the value of "pounds" in our money, and, in rendering judgment, convert them into dollars, (Johnston v. Hedden, 2 Johns. Cas. 274;) of the expectation of human life, (Johnson v. Railroad Co., 6 Duer, 634;) of the course of seasons and husbandry, and the general course of agriculture, and that a crop, at a certain date, would not have matured, (Ross v. Boswell, 60 Ind. 235; Floyd v. Ricks, 14 Ark. 286;) of the time of the rising and setting of the sun and moon, (Case v. Perew; 46 Hun, 57;) and, generally, of those things which happen according to the ordinary course of nature,-the course of time and the movements of the heavenly bodies, the coincidence of the days of the week with the days of the month, ordinary public fasts and festivals, and legal weights and measures, (1 Greenl. Ev. pt. 1, c. 2, § 5.) And, to ascertain such well-known facts, recourse is had to such documents and references as are worthy of confidence. Within this rule the court may take notice of the size and height of the human frame; and, doing so, we know that the plaintiff's head could not have reached to a height sufficient to come in contact with the arch. We know that the average height of man is less than 6 feet; that the average length of the body from the lower end of the spine to the top of the head is less than 36 inches; that this measurement varies but little in adults; and that the chief difference in the height of men is in the length of their lower limbs. To assume, therefore, as we must, in order to sustain the judgment, that the top of the plaintiff's head, when in a sitting position, was 4 feet 7 inches above the board on which he was sitting, is to assume him to have been not only far above the average height of man, but of a height beyond that of which we have any authentic record. It has not been claimed by the respondent that the plaintiff was a man of extraordinary height, and, if he was, I think a fact so rare in the course of nature should be made apparent, in some way, on the record. It can be asserted, I think, without contradiction, that a man whose forehead would be 4 feet 7 inches above a seat upon which he was sitting would have a frame at least 9 feet high. History affords no authenticated instance of men attaining such height. Buffon, in his Natural History, records instances of men attaining extraordinary heights, but modern writers do not accept his statements. Pliny tells of an Arabian 9 feet high, but the story is not authenticated. In the article upon "Giants," in the Encyclopedia Brittanica, it is stated that the tallest man whose stature has been authentically recorded was Frederick the Great's Scottish giant, who was 8 feet 3 inches tall. In the Col

lege of Surgeons, in London, there is a skeleton of an Irishman, who was named "Charles Bierne," which measured 8 feet. Such heights are of rare occurrence, and the height of 9 feet has probably never been attained by man. Suppose the proof had shown that upon approaching the entrance to the tunnel the plaintiff was standing up, and his body had been found between the entrance and the west end of the arch. Would it be assumed that his head had struck the roof of the tunnel, which would have been 8 feet 10 inches above the top of the car? In other words, would the court, to sustain the judgment, assume him to have been over 8 feet and 10 inches in height? Yet that assumption would call for no greater exercise of the imagination than to suppose his head to have reached the bottom of the arch when he was in a sitting posture. To assume either fact requires us to believe the plaintiff was nearly, if not fully, 9 feet in height.

I think, therefore, the court may take judicial notice of the fact that a man could not strike his head against an obstruction 4 feet and 7 inches above the place on which he was sitting; and, that being so, the negligence of the defendant was not established. In no other way or manner is it suggested that the defendant was negligent, except in the maintenance of the arch, and the failure to warn the plaintiff of its existence. Unless the plaintiff's injuries can, by a preponderance of evidence, he attributed to those causes, his case must fail. Unless the proof shows that he struck his head against the arch, the judgment can only be sustained on pure speculation. There are numerous ways in which the accident might have happened, but none other have any support in the testimony; and if the case is left in such a condition that it is just as possible the injury came from one cause as another the judgment must be reversed. Taylor v. Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642. It has been said that an appellate court will not take judicial notice of facts not proven on the trial, for the purpose of reversing a judgment. While all reasonable intendments should be indulged in to support a judgment, the court is not called upon to assume the existence of a fact which is contrary to the ordinary course of nature, solely because the party raising the question did not give oral testimony upon it at the trial. In a case like this, in which it is well known that it can be submitted to a jury with generally but one result, the judgment should not be upheld when it is apparent that the verdict is not supported by the evidence. Here the finding which must exist to support the judgment is so contrary to our general knowledge, and so far outside of common occurrence, that it may, in the absence of further proof, be regarded as contrary to nature, and hence untrue; and substantial justice will be done by reversing the judgment, and granting a new trial. Upon such trial, if the plaintiff was a giant in stature, or if, as claimed by the learned counsel for respondent, the space above the car was less than I have stated, such facts may be made clear. The judgment should be reversed, and a new trial granted, costs to abide event.

FOLLETT, C. J., and POTTER and PARKER, JJ., concur. BRADLEY and VANN, JJ., | dissent. HAIGHT, J., not sitting.

BRADLEY and VANN, JJ., dissent, for the reason that the ground upon which Judge BROWN founds his conclusion was not specifically raised at the trial, and it does not necessarily appear that it might not have been obviated if it had been so raised there; and that, in such case, judicial notice of a fact upon which no evidence was given or point made on the trial should not be taken for the purpose of reversing a judgment.

(118 N. Y. 30)

TABOR V. HOFFMAN.1

(Court of Appeals of New York, Second Division. Dec. 10, 1889.)

RIGHTS OF INVENTORS-EXCLUSIVE PROPERTY-INJUNCTION.

1. An inventor of a machine which he sells without patent may still retain an exclusive property in the patterns by which such machines are made, where the dimensions of such patterns cannot be obtained by merely measuring the completed machine.

2. Where one to whom such patterns are given to be repaired measures them, and reveals their dimensions to a third person, the latter may be enjoined from using patterns made from such meas

urements.

FOLLETT, C. J., dissenting.

Appeal from a judgment of the general term of the supreme court in the fifth judicial department, affirming a judgment in favor of the plaintiff entered upon the decision of a special term.

The object of this action was to restrain the defendant from using certain patterns alleged to have been surreptitiously copied from patterns belonging to the plaintiff that had not been made public. The trial court found that the plaintiff, having invented a pump known as "Tabor's Rotary Pump," made a complete set of patterns to manufacture the same; that he necessarily spent much time, labor, and money in making and perfecting such patterns, which were always in his exclusive possession; that from time to time he made improvements upon the pump, and incorporated the same in the patterns, which were never thrown on the market nor given to the public; that one Francis Walz surreptitiously made for the defendant a duplicate set of said patterns from measurements taken from the patterns of the plaintiff, without his knowledge or consent, while they were in possession of said Walz to be repaired; that before the commencement of this action the defendant, with knowledge of all these facts and without the consent of the plaintiff, had commenced to make, and since then has made, pumps from said patterns, thus obtained; that the plaintiff has established a large and profitable trade in said pumps, which "will be injured, and the plaintiff damaged, if the defendant is permitted" to continue to manufacture from said patterns. The trial court further found, upon the request of the defendant, "that a competent pattern-maker can make a set of patterns from measurements taken from the pump itself, without the 'Affirming 41 Hun, 5.

aid of plaintiff's patterns," but refused to find, upon the like request, that this could be done "with little more expense and trouble than from measurements taken from plaintiff's said patterns." It appeared from the evidence that the finished pump 66 does not comply with the patterns," because it is made of brass and iron, which expand unequally in the finished casting, and also contract unequally when cooling during the process of casting; that some of the patterns are subdivided into sections, which greatly facilitates measurements and drawings, as each section can be laid flat upon the wood or paper; and that it would take longer to make a set of patterns from the pump than it would to copy the perfected patterns themselves. The special term, by its final decree, restrained the defendant "from manufacturing any more pumps from the set of patterns made by Francis Walz from measurements taken from the plaintiff's patterns, * and from selling, disposing of, or using in any manner said patterns."

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Brundage & Chipman, for appellant. James P. Strong, for respondent.

VANN, J., (after stating the facts as above.) It is conceded by the appellant that, independent of copyright or letters patent, an inventor or author has, by the common law, an exclusive property in his invention or composition, until by publication it becomes the property of the general public. This concession seems to be well founded, and to be sustained by authority. Palmer v. De Witt, 47 N. Y. 532; Potter v. McPherson, 21 Hun, 559; Hammer v. Barnes, 26 How. Pr. 174; Kiernan v. Telegraph Co., 50 How. Pr. 194; Woolsey v. Judd, 4 Duer, 379; Peabody v. Norfolk, 98 Mass. 452; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. Rep. 379; Phil. Pat. 333-341; Drone, Copyr. 97-139. As the plaintiff had placed the perfected pump upon the market, without obtaining the protection of the patent laws, he thereby published that invention to the world, and no longer had any exclusive property therein. Id.; Rees v. Peltzer, 75 Ill. 475; Clemens v. Belford, 14 Fed. Rep. 728; Shortt, Literature, 48. But the completed pump was not his only invention, for he had also discovered means, or machines in the form of patterns, which greatly aided, if they were not indispensable, in the manufacture of the pumps. This discovery he had not intentionally published, but had kept it secret, unless, by disclosing the invention of the pump, he had also disclosed the invention of the patterns by which the pump was made. The precise question, therefore, presented by this appeal, as it appears to us, is whether there is a secret in the patterns that yet remains a secret, although the pump has been given to the world. The pump consists of many different pieces, the most of which are made by running melted brass or iron in a mould. The mould is formed by the use of patterns, which exceed in number the separate parts of the pump. as some of them are divided into several sections. The different pieces out of which the pump is made are not of the same size as the corresponding patterns, owing to the shrinkage of the metal in cooling. In