in mentioned" Held, That while the certificate was defective in form it was not vitally so, and that the assignment was properly recorded. In action to set aside the assignment upon the ground that the above certificate of acknowledgment was defective the officer who took such acknowledgment was called to prove that in fact the requirements of the statute in respect of the act of acknowledgment had been complied with. This evidence was excluded. Held, Error. Appeal from judgment of Special Term, setting aside a general assignment. Otto Horwitz and Daniel C. Briggs, for respts. Held, Error. That the appellants had the right to show that, in point of fact, they had complied with the requirements of the statute in respect of the act of acknowledgment although the certificate was in form defective. That this would have eliminated from the case all questions of intent not to comply with any requirement of the statute and left to the court to determine the naked question of the effect of the mere accidental omission of a public officer to fully certify what was in fact done. That if the certificate of the officer were so absolutely defective that the court could not construe it as signifying, though elliptical in form, substantially what the law requires, the parties must bear the consequences; but that such official acts must be read if possible in such way as to make them effective to preserve the rights of the parties, and reading this certificate in the light of this rule, and taking into consideration its direct contact with the assignment itself, it The ground upon which the assignment was claimed to be invalid was that the certificate of acknowledgment of its execution was defective. This certificate was written immediately after the clauses of acceptance of the trust, and of attestation and the signatures and seals of the parties, and was in the following form: "State of N. Y., City & Co. of N. Y., ss: On this 21st day of Feb., 1882, before me personally appeared . H. S. and J. G. S. of the City of N. Y., to me personally known to be the individuals described in and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned. -Commissioner of Deeds." On the trial the Commissioner of Deeds who took the acknowledgment was called as a witness, and the fact that an acknowlegment was made in due form at the time stated in the certificate was offered to be proved. This evidence was excluded and an exception taken. R. L. Fowler, J.J. Adams and significance except one, which was V. F. Dunning, for applt. appeared that the phrase "per. sonally known to be the individuals described in" plainly referred to the body of the instrument for the description of the persons who personally appeared before and were personally known to the commissioner; and the following words: "and who executed the same, and who acknowledged to me that they executed the same for the purposes therein mentioned " could have no made explicit and clear by refer ence to the assignment preceding the certificate, as was the manifest intent of the language used, and that the words "the same" were to be read as though the words were "this instrument" in the first place in which they appear. That the general assignment act, Chap. 466, Laws of 1877, looks only to the substance of the thing and is satisfied when the act appears in that respect to have been complied with, and that, as no form of certificate is therein prescribed, it need not be in any particular form. 58 N. Y., 627; 42 Barb., 284; 45 N. Y., 703; 95 U. S., 713; 21 Miss., 373; 24 Minn., 161; 35 Iowa, 60; 27 Ind., 478; 5 Smedes & H., 470; 48 Mo., 444; 14 Pa., 364; 96 N. Y., 253. Judgment reversed, and judgment entered dismissing the complaint. denying motion for new trial on the minutes. Action to recover $25,000 damages for the alleged alienation of the affections of plaintiff's wife. The complaint alleged that while plaintiff and his wife "were living together happily as man and wife" defendant alienated her affections, stating details of time and place, and that he was harboring her and that she was living with him apart from plaintiff. The answer was a general denial. On the trial plaintiff confined himself to proof of the last charge, as to harboring his wife, and testified that he had lived happily with her. Defendant introduced evidence tending to show cruel and inhuman treatment of his wife by plaintiff and unhappy relations existing between them. This evidence was objected to on the grounds of irrel Opinion by Davis, P.J.; Brady evancy and because not pleaded. and Daniels, JJ., concur. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Edward W. Edwards, applt., v. Henry O. Nichols, respt. Decided Feb., 1885. In an action to recover damages for alienation of the affections of plaintiff's wife, the complaint alleging that plaintiff and his wife were living happily together, evidence tending to show that they did not live happily together, that the wife had no affection for plaintiff, and that he lost nothing by deprivation of her society is admissible under a general denial. Appeal from judgment in favor of plaintiff for $50, and from order Code, 536. The objection was overruled, the evidence admitted, and plaintiff excepted. This appeal was taken on the ground of insufficiency of the verdict and upon the exceptions. Joseph A. Welch, for applt. Henry Thompson, for respt. Held, No error. On the trial de fendant introduced testimony that at the time he contracted relations with plaintiff's wife she had no affection for him to be estranged. The jury evidently accepted this view, and gave him a verdict for $50. That was deemed a sufficient compensation for all he had lost, and, under all the testimony, we cannot say that the determination of the jury was erroneous. It must be remembered that the evidence complained of was not introduced to mitigate or excuse the conduct of defendant, but only to illustrate and affect plaintiff's actual loss and injury. He had alleged in his complaint that he lived happily with his wife, and the answer put every allegation in issue. It was therefore entirely proper to receive testimony to show that plaintiff did not live happily with his wife; that she had no affection for him and that he lost nothing by deprivation of her society. Judgment and order affirmed, with costs. Opinion by Dykman, J.; Barnard, P.J., and Pratt, J., concur. BILL OF PARTICULARS. N. Y. SUPERIOR COURT. GENERAL TERM. Robert Langdon et al., applts., v. David H. Brown, respt. Decided March 2, 1885. Where defendant is not entitled to a bill of particulars as a matter of right, but on a demand by defendant plaintiffs serve one which is defective, an order that plaintiff's furnish a further bill of particulars is in the discretion of the court, and will not be interfered with where it appears that such further bill will be a facility which plaintiff should afford to defendant in preparing a bill of particulars which defendant had been ordered to give. Appeal from order for bill of par ticulars. The complaint alleged an indebtness of defendant on a guarantee that the firm of Lowry & Brown would pay for all goods (woolens) sold and delivered by plaintiffs to said firm. The answer admitted the indebtedness, but set up a counterclaim for damages by reason of the defective character of said goods. Plaintiffs obtained an order that defendant serve a bill of particulars of said claim for damages, specifying the number marked on each piece of damaged goods. Defendant then demanded from plaintiffs a bill of particulars of their claim. A defective bill having been served in compliance with such demand, defendant, on notice, obtained an order that a further bill be served specifying the numbers on all goods sold to Lowry & Brown; and from this last order plaintiffs appealed. Francis Forbes, for applts. Held, That the action was not did not allege any account. Code upon an account, and the complaint Civ. Pro., 531. Plaintiffs were not bound, therefore, by the section, to give particulars upon the mere demand of defendant's attorney. If the validity of the order depended upon whether, if the first bill served was one that could not properly be demanded, there could be a further bill ordered on the ground of defendant's absolute right to it, there might be ground for doubt. Substantially, however, after the plaintiffs had voluntarily furnished what they did furnish, it was a question for the discretion of the court whether further par ticulars should be given; for under the last sentence of the section specified the court may in any case direct a bill of the particulars of the claim of either party to be delivered to the adverse party. The matter that shows that the court exercised discretion properly is that, it appearing that plaintiff had procured an order for the particulars of defendant's claim for a recoupment on account of the bad condition of some of the goods averred by the complaint to have been sold, the present order was a facility for defendant's making his bill of particulars that plaintiffs should give. Order affirmed, with $10 costs, and disbursements to be taxed. Opinion by Sedgwick, Ch.J.; O'Gorman, J., concurs. the claim that plaintiff does not reside in the city and county of New York, but is a resident of Kings county, it was properly denied. 46 Super. Ct., 358. And in so far as it is based on the allegation that the note in suit was transferred to plaintiff by the administrators of an insolvent estate after the maturity thereof, it was also properly denied, for that fact constitutes no ground. Upon the other branch of the motion, viz., that plaintiff be compelled to verify his complaint, defendant has mistaken his remedy. If the verification which appears to have been annexed is really defective, as claimed, defendant may GENERAL treat it as a nullity. Code, § 528. Order affirmed, with costs. Opinion by Freedman, J.; Sedywick, Ch.J., concurs. SECURITY FOR COSTS. VERI- N. Y. SUPERIOR COURT. TERM. Edward Ralph, respt., v. Joseph Husson, applt. Decided Dec. 1, 1884. In an action in the Superior Court of New for costs as a non-resident if he reside The mere fact that the note in suit was transferred to plaintiff by the administrators of an insolvent estate furnishes no N. Y. SUPREME COURT. GENERAL Hiram W. Lane, respt., v. Josiah ground for demanding from him security Commissioners, applts. for costs. The remedy for defective verification of a complaint is not by motion to compel a verification, but by treating it as a nullity. Appeal from order denying defendant's motion to compel plaintiff to verify his complaint and to compel him to give security for costs as a non-resident. Dennis McMahon, for applt. Abram Kling, for respt. Held, That, in so far as the motion that plaintiff be compelled to file security for costs is based upon Decided April, 1885. A bridge being out of repair, defendants barricaded it against travelers until the repairs should be made. Plaintiff's horses escaped from him, ran away, and one of them was injured by the means used to barricade the bridge. Held, that defendants are not chargeable for the injury. Appeal from judgment on verdict in County Court. Action for loss of a horse. A highway bridge in defendants' jurisdiction needing repairs, they posted notices at either end of i warning people of the danger, and they barricaded the bridge partly with a plank taken from it which left a hole in the floor visible to persons approaching. The barricade was completed with a rail, and was plainly indicated to the public. Defendants proceeded to procure the necessary timber and a pile-driver to make the repairs. Plaintiff's horses, hitched to a wagon, without negligence on his part, escaped from him, ran away and on to the bridge and one of them was killed, not through the defects in the bridge, but wholly through the means taken to prevent passage over it. Motion for nonsuit was denied. C. R. Lockwood, for applts. Marvin Smith, for respt. Held, Error. The defendants are chargeable if the loss was occasioned by their negligence. 77 N. Y., 83; 96 id., 283. See 40 Conn., 238, 16 Am., 33; 9 Vt., 411; 29 Wis., 296, 9 Am., 568; 64 Me., 51, 18 Am., 239; 54 Mo., 598, 14 Am., 487; 81 Penn. St., 44, 22 Am., 733; 2 Cush., 600; 4 Allen, 557; 100 Mass., 49; 73 N. Y., 368. Delay in repairing the bridge is too remote a cause to charge defendants in this case; though it might afford a different remedy against them for failure to perform duty. 1 Hun, 570. Defendants were not chargeable with misconduct or neglect in respect to the means used to prevent passage over the bridge. It was their duty to warn the public and to barricade the bridge. They were not bound to provide against injuries to runaway horses, or to Vol. 21-No. 11. erect a barrier sufficient to stay their furious speed. If defendants obstructed the bridge so as to ef fectually advise all persons that they could not pass, and so as to prevent their passage with teams, it was sufficient. 10 Hun, 531; 15 Jones & Sp., 341; 4 Gray, 596; 80 Iowa, 438, 46 Am., 82; 16 Me., 187, 33 Am. Dec., 652. Regna v. Rochester, 45 N. Y., 130, distinguished. Another trial with attention to the question as to the means adopted to close the bridge and the manner in which it was done may develop a question of fact for the jury. Judgment reversed, new trial granted, costs to abide event. Opinion by Bradley, J.; Haight and Childs, JJ., concur. CONTRACT. MUNICIPAL CORPORATIONS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Charles Schier, respt., v. The City of Buffalo, applt. Decided April, 1885. Plaintiff agreed with defendant to sprinkle a portion of a street. Such contract was within the powers of defendant and all the proceedings to effect it were regular on their face, and plaintiff in good faith did the work. The proceedings were in fact irregular, in that the initiatory patition was not signed by a majority of the persons taxable for the service. Held, that plaintiff was entitled to recover for his services. Appeal from judgment on decision of County Court. Action to recover for services in sprinkling one of defendant's streets. |