App. Div.] FOURTH DEPARTMENT, JULY TERM, 1903. the policy, and every policy on every store and its contents, although the collapse had nothing to do with the destruction by fire. It seems to me a more reasonable construction to hold that the term "building" refers to the particular structure occupied by itself as a store for any especial business instead of including the whole. row or block because they happen to be under one roof or use adjoining party walls. Defendant's exceptions should be overruled and judgment ordered for the plaintiffs on the verdict. HISCOCK, J., concurred. Defendant's exceptions sustained, motion for new trial granted, with costs to the defendant to abide event. JOSEPH J. MYERS, Respondent, v. FRANK L. MYERS, Appellant. Verdict-when set aside because the amount thereof is not justified by the evidence. In an action to recover for services performed by the plaintiff for the defendant, the only issue litigated was as to the compensation which the parties had agreed that the plaintiff should receive for the services. According to the plaintiff's contention, the amount which he was entitled to recover was $900, while, according to the defendant's contention, the plaintiff was not entitled to recover anything. The jury rendered a verdict in favor of the plaintiff for $500. Held, that the verdict was not justified by the evidence and that the judgment entered thereon should be reversed; That the verdict rendered was clearly the result of a compromise and that it was. impossible to say whether or not the defendant was unfavorably affected thereby. A jury, in determining the amount of their verdict, cannot guess at such amount. They must be guided by the evidence and by the evidence alone; if there is no evidence to support the verdict, it has no foundation and must fall. APPEAL by the defendant, Frank L. Myers, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 16th day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk's office on the 22d day of October, 1902, denying the defendant's motion for a new trial made upon the minutes. FOURTH DEPARTMENT, JULY TERM, 1903. [Vol. 86. The action was commenced on the 16th day of April, 1902, to recover for work, labor and services rendered and performed by the plaintiff for the defendant between the 1st day of October, 1896, and the 1st day of April, 1902. The plaintiff claimed that it was agreed between him and the defendant that he, the plaintiff, should receive for the services rendered forty dollars per month. The defendant claimed that the compensation agreed upon was twentyfive dollars per month. This was substantially the only issue or dispute between the parties. The length of time which the plaintiff worked or the amount of money which had been paid to him by the defendant on account of such services was not put in issue by the testimony of the parties. According to the claim of the plaintiff, figuring his compensation at the rate of $40 per month, the amount due and owing to him was substantially $900. According to the claim of the defendant, and figuring the compensation at $25 per month, the defendant was not indebted to the plaintiff in any sum whatever. The jury rendered a verdict in favor of the plaintiff for $500, and from the judgment entered thereon this appeal is taken. The sole question presented by this appeal is whether or not there is any evidence to support the verdict of the jury, in so far as it determines the amount which is due and owing from the defendant to the plaintiff; and if not, whether the defendant is entitled to raise that question when, upon the evidence, the jury would have been justified in finding that the larger sum, or the full amount claimed by the plaintiff, was due and owing to him. F. A. Robbins and James A. Parsons, for the appellant. Milo M. Acker, for the respondent. MCLENNAN, J.: Counsel for the respondent urges that it is possible to interpret the evidence, when considered as a whole, in such manner as to make the verdict of the jury consistent, and our attention is called to some apparently casual statements made by a witness called by the defendant, to the effect that the term of employment commenced at a later period than testified to by the parties. From a careful examination of the evidence we think it is not susceptible App. Div.] FOURTH DEPARTMENT, JULY TERM, 1903. of such interpretation. The parties by their evidence agreed as to when the employment commenced. They agreed as to the amount which had been paid by the defendant on account of the services rendered by the plaintiff, and the evidence to which attention has been called is not sufficient to raise an issue of fact as to those questions. We, therefore, must assume that upon the evidence the jury was only entitled to render one of two verdicts- either a verdict in favor of the plaintiff for substantially $900, or a verdict in favor of the defendant for substantially no cause of action, and that the evidence did not in any sense support the verdict rendered. Parties to a litigation, the defendant as well as the plaintiff, are entitled to have the issues submitted to the jury decided solely upon the evidence, and either party has just cause for complaint if that is not done. In the case at bar the defendant was entitled to have the jury determine whether plaintiff's rate of compensation was forty dollars or twenty-five dollars per month, that being the only issue which was properly before them for consideration; and he was entitled to have that issue determined uninfluenced by any plan of compromise as to the amount which should be awarded as a result of the decision upon that issue. The verdict rendered was clearly a compromise, and whether or not it unfavorably affected the defendant it is impossible to say. It is sufficient that it was not justified by the evidence, and, therefore, the judgment entered thereon should be reversed. We think the rule is correctly stated in Oliver v. Moore (12 N. Y. Supp. 343), in which the court said: "The jury are to be guided by the evidence. They cannot guess at an amount which should be due to the plaintiff. They must find their verdict upon the evidence, and upon the evidence alone; and if there is no evidence to support their verdict it has no foundation and must fall." In the case of Bigelow v. Garwitz (15 N. Y. Supp. 940) the amount claimed and liquidated was $224.80, and the jury rendered a verdict for $100. The court said: "The jury rendered their verdict in favor of the plaintiff for $100. It was properly set aside. It was in direct contravention of the instructions of the court, and was manifestly the result of a compromise. It was a verdict which the jury had no right to render, and which the court might well have set aside on its own motion." FOURTH DEPARTMENT, JULY TERM, 1903. [Vol. 86. To the same effect is the case of Powers v. Gouraud (19 Misc. Rep. 268). Upon principle and upon authority as well, we think the judgment and order appealed from should be reversed and a new trial granted. All concurred. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein. M. FILLMORE BROWN, Respondent, v. WILBUR F. SMALLWOOD, Appellant, Impleaded with the CITIZENS' BANK of Le Roy. Action for malicious prosecution · newspaper articles are competent to show the notoriety given to the plaintiff's arrest — not, however, where they contain the plaintiff's version of the matter — proof as to the pecuniary condition of the defendant is incompetent. In an action brought to recover damages for the alleged malicious prosecution by the defendant of a criminal action against the plaintiff, the plaintiff, for the purpose of showing the publicity given to the alleged wrong inflicted upon the plaintiff by the defendant, is entitled to introduce in evidence newspaper articles stating the fact that he had been indicted, and the crime with which he was charged, and that he had been arrested and had given bail. If, however, such newspaper articles, in addition to the foregoing matters, purport to give the plaintiff's version of the transaction with considerable detail, which version, if true, exonerates the plaintiff from all blame and clearly indicates that the defendant caused the indictment to be found maliciously and without probable cause, the plaintiff is not entitled to introduce such articles. in evidence, as the effect thereof is to enable the plaintiff to place his version of the transaction before the jury without subjecting himself to the test of cross-examination. In such an action it is improper to allow the plaintiff, over the defendant's objection, to make proof as to the pecuniary circumstances of the defendant. APPEAL by the defendant, Wilbur F. Smallwood, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of October, 1902, upon the verdict of a jury, and also from an order entered in App. Div.] FOURTH DEPARTMENT, JULY TERM, 1903. said clerk's office on the 20th day of October, 1902, denying the said defendant's motion for a new trial made upon a case containing exceptions. The action was commenced in July, 1900, to recover damages sustained by the plaintiff on account of his prosecution by the defendant, alleged to have been malicious and without probable cause. Eugene M. Bartlett, for the appellant. Charles A. Dolson and M. Fillmore Brown, in person, for the respondent. MCLENNAN, J.: The facts, so far as material, may be summarized as follows: The plaintiff, who resided with his wife, Elizabeth T. Brown, was a lawyer engaged in the practice of his profession in the city of Buffalo, N. Y. On the 11th day of January, 1897, the Citizens' Bank of Le Roy, N. Y., of which the defendant was president, issued to Elizabeth T. Brown a certificate for ten shares of the capital stock of the bank, of the face value of $100 each. On the back of the certificate was a blank assignment and power of attorney. On January 26, 1897, this certificate was pledged to the bank as security for the payment of a note of $500 indorsed by Mrs. Brown, and she then signed her name at the bottom of the written assignment upon the certificate. The blank spaces therein were left blank. The certificate of stock was continued as a pledge for various loans made by the plaintiff upon the notes made by himself and his wife, until March, 1898, when the then total indebtedness was paid. The certificate, however, continued to remain in the possession of the bank until April 4, 1898, when the plaintiff procured it from the defendant Smallwood. At that time the assignment upon the back of the certificate, as by Mrs. Brown, the wife of the plaintiff, in the blank as the assignee of the same. the plaintiff's wife being absent from home, he, without the knowl edge or authority of his wife, filled in all the blank spaces in the assignment, so that upon its face it appeared that it had been trans we have seen, was signed but no name was inserted Then, or about that time, |