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which tended to show that the accused actually stole twelve neck-ties, of the value of fifty cents each in the store of F. M. Brown & Co. There was no evidence of any other stealing in the store. The counsel for the appellant asked the court to instruct the jury as follows: "Under the laws of this State, a conspiracy to commit the crime of theft is a misdemeanor, while the crime of theft itself is a felony; and that the law is s0 that if the conspiracy is consummated, and the theft is actually committed, then the conspiracy is merged in the theft, and the accused cannot lawfully be convicted of conspiracy; that where the felony is in fact committed a conspiracy to commit such felony cannot be indicted and punished as a distinct offense. If you find therefore from the evidence that the crime which it is alleged the accused conspired to commit, to-wit, the theft of the goods, the property of F. M. Brown & Co., was in fact consummated, and the theft was actually committed, your verdict must be that the accused is not guilty of the offense for which she is now on trial." The court did not so charge the jury.

The only question argued before the court is whether or not the crime of conspiring to steal, as set forth in the information, was merged in the crime of the actual theft, of which evidence appeared on the trial. In the reasons of appeal the question is stated thus: The court erred while stating to the jury that "if the overt act has been carried into execution, and the offense has been punished once, it cannot be punished a second time;" and in not also instructing the jury, as requested by the defendant, "that when the felony is in fact committed, a conspiracy to commit such felony cannot be indicted and punished as a separate offense." The broad claim of the appellant is that if the crime to commit which the conspiracy is formed is actually committed, then the conspiracy is merged in the committed crime, and ceases itself to be a crime at all. It is admitted however that if the committed crime be of that class of crimes called "misdemeanors," the conspiracy is not merged; and that in a case where there is a conspiracy to commit a misdemeanor, and the misdemeanor is actually committed, the offender may be punished for the conspiracy, and for the misdemeanor also. But it is insisted that if the contemplated crime is of that class called "felonious," then if the felony is actually committed, the conspiracy is merged, and no longer exists as a separate and distinct offense. Put in its simplest form, the argument is this: Conspiracy is a misdemeanor. Theft is a felony. A misdemeanor is a less crime than a felony; and so, in a case where there is a conspiracy to commit a theft, that crime being a felony, and the theft is actually committed, the less offense is merged in the greater. Stated in this way, the argument seems quite imposing. The force of the argument comes largely from the use of the word "felony," and in giving to it the same meaning it had in the common law. Originally the term imported all those offenses of which the feudal consequence was the forfeiture of all the offender's land and goods; to which in later times capital or other punishment was sometimes added. It American law the word has no clearly-defined meaning, except as it is given a meaning by some statute. In Massachusetts, there is a statute which enacts that any crime punishable by death, or imprisonment in the State prison, is a felony, and that no other crime shall be so considered. There is a similar statute in New York, and in some of the other States. In Swift's System, published in the year 1796 (vol. 2, pp. 384, 385), the learned author says: "Felony, according to the English law, signifies some crime, the punishment of which is a forfeiture of estate; but in common consideration it is a capital crime. In this State, in the title of two statutes, the word felonies' is used. The word is never introduced into the body of any statute, and is applied to the description of crimes not capital, and for which

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there is no forfeiture of estate. It is therefore apparent that this word cannot be used in the same sense, and for the same crimes as in England; nor does it with precision comprehend any class or description of crimes. A word of such uncertain meaning ought to be banished from a code of laws; for nothing produces greater confusion and perplexity than the use of terms to which no precise and clear idea can be affixed. * * * The word 'feloniously' is used in indictments for all capital crimes, and for many not capital, as for theft; but as felonious' in an indictment can mean nothing more than 'criminal,' and does not designate the nature or the class of the crime, it may be deemed unnecessary and immaterial, and ought to be exploded by our courts." Since the time when Judge Swift wrote, the word "felony" has disap peared from the statute, although the word "feloniously" is still used in indictments and informations. And while it is still true that this word does not with precision comprehend any class or description of crimes in Connecticut law, it may be pretty safely as serted that petit larceny is not a felony in this State. The earliest American case cited by the counsel for the appellant in support of their claim of merger is Com. v. Kingsbury, 5 Mass. 106. In that case the court say: "We have considered this case, and are of opinion that the misdemeanor is merged. Had the conspiracy not been effected, it might have been punished as a distinct offense; but a contrivance to commit a felony, and executing the contrivance, cannot be punished as an offense distinct from the felony, because the contrivance is a part of the felony, when committed pursuant to it. The law is the same respecting misdemeanors. An intent to commit a misdemeanor, manifested by some overt act, is a misdemeanor; but if the intent be carried into execution the offender can be punished but for one offense." This case is the authority given for the dictum in 2 Swift Digest, 359, and it is the leading, if not the only, authority for the decision in every one of the cases cited on the appellant's brief. It is noticeable that Judge Swift, while giving the case above named as authority for the law that a conspiracy merges in a felony, in almost the very next sentence on the same page repudiates that case, so far as it says that a conspiracy will merge in a misdemeanor, although the reasons given by the judge who gave the opinion in that case for the merger in misdemeanor are the same as for a felony. It this respect all the cases cited follow Judge Swift. They reject the reasoning in the Massachusetts case when it applies to a misdemeanor, and adopt it when it applies to a felony.

says:

Mr. Bishop, in his Treatise on the Criminal Law (7th ed.), volume 1, section 814, after discussing the rule that a conspiracy merges in a felony, remarks: "The doctrine, the reader perceives, is contrary to just principle. It has been rejected in England; and though there may be States in which it is binding on the courts, it is not to be deemed general American law." Prof. Wharton (Crim. Law [8th ed.], § 1344) "The technical rule * * ** that a misdemeanor always sinks in the felony when the two meet has in some instances been recognized in this country, though without good reason. ** * And in several of our courts a disposition has been exhibited to reject the doctrine in all cases." See cases cited below. In England the doctrine that a conspiracy to commit a felony is merged in the felony itself has been expressly rejected. Lord Denman, in rendering the judgment of the Court of Queen's Bench in Reg. v. Button, 11 Q. B. 929, said: "A misdemeanor which is a part of a felony may be prosecuted as a misdemeanor, though the felony has been completed." The case was one where the defendants were charged with a conspiracy to commit a theft, and the evidence tended to show that the theft had been actually committed. Reg. v.

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of crimes. The unlawful confederacy is therefore
punished, to prevent the doing of any act in the exe-
cution of it." 2 Swift Dig, 350. It is a distinct offense
well known to the criminal law, depending upon clear
principles, and having characteristics and ingredients
which separate it from all other crimes; an offense,
the criminality of which is not to be measured by the
criminality of its object. Amos Jur. 256. "The con-
federacy of several persons to effect any injurious ob-
ject creates such a new and additional power to cause
injury as requires criminal restraint, although none
would be necessary were the same thing proposed, or
even attempted to be done, by any person singly. A
solitary offender may be easily detected and punished;
but combinations against law are always dangerous to
the public peace, and to private security. To guard
against the union of members to effect an unlawful
design is not easy, and to detect and punish them is
often difficult." Com. v. Judd, 2 Mass. 337. Upon the
whole examination, we are of opinion, upon principle,
as well as upon authority, that this conviction for a
conspiracy to commit theft ought to be sustained, al-
though the evidence by which it was proved, proved
also that the theft had been actually committed. There
is no error in the judgment appealed from.
The other judges concurred.

Neale, 1 Denison Crim. Cas. 36, is to the same effect. If a conspiracy to commit a felony is regarded as au attempt to commit that felony, then the authorities very largely prepouderate to the effect that there is no merger. State v. Shepard, 7 Coun. 54; Com. v. Walker, 108 Mass. 309; Com. v. Dean, 109 id. 349; Barnett v. People, 54 Ill. 325; Bonsall v. State, 35 Ind. 460: People v. Bristol, 23 Mich. 118; People v. Smith, 57 Barb. 46; Com. v. McPike, 3 Cush. 181. That one criminal offense may sometimes be merged in another is doubtless true. The principles upon which the doctrine of merger seems to rest are that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger that when both have been committed they cannot in reason and justice be separated; so that to punish an accused in such a case for both offenses would be in effect to punish the same act twice. In the case above cited of Com. v. Kingsbury, the reasons given seem to treat the conspiracy as the beginning of the very act, the ending of which was the felony or the misdemeanor. "There is at common law a wide distinction between felony and misdemeanor. It affects alike the punishment, the procedure, and several rules governing the crime itself. Out of this distinction grows the doctrine that the same precise act, viewed with reference to the same consequences, cannot be both a felony and a misdemeanor-a doctrine which applies only where the identical act constitutes both offenses." 1 Bish. Crim. Law (7th ed.), § 787. It is supposed that a conspiracy to commit a crime is merged in the crime when the conspiracy is executed. This may be so, where the crime is of a higher grade than the conspiracy, and the object of the conspiracy is fully accomplished; but a conspiracy is only a misdemeanor, and when its ob-itor on certain transactions, and to what debt such ject is only to commit a misdemeanor it cannot be merged. Where two crimes are of equal grade there can be no legal, technical merger. People v. Mather, 4 Wend. 265.

To make these principles available for the appellant, it must be shown that the conspiracy of which she was convicted is a crime of a lesser grade than the larceny which she claims was proved. In the absence of statutory graduation, there is no test by which to determine the grade of crimes, other than the punishment which may be inflicted. Conspiracy may be punished by imprisonment in the State prison for a term not exceeding five years, and by a fine not exceeding $500. Larceny to any value less than $15 can be punished by no more than thirty days in the county jail, and a fine of not more than $7. By this test conspiracy is much the greater crime. Nor are the ingredients of conspiracy the same as of theft. Theft may be committed by one person as well as by two or more. It requires some physical act, in the nature of a trespass, by which the possession of the thing stolen is taken from the owner; and the act must be accompanied by the intent of the thief to deprive the owner of his property. On the other hand, conspiracy cannot be committed except by two or more persons. It is the agreeing or confederating together by two or more persons to commit some crime or misdemeanor. Such confederation or agreement is itself the offense. Unlike theft, no overt act is necessary. The unlawful agreement makes the crime, and it is complete the moment the agreement is entered into. State v. Glidden, 55 Conn. 46; Com. v. Eastman, 1 Cush. 228. Its legal character depends neither upon that which actually follows it nor upon that which is intended to follow it. It is the same, whether its object be accomplished or abandoned. It may be followed by one overt act, or a series; but as an offense, it is complete without them. Rex v. Rispal, 3 Burr. 1320; Rex v. Kimberty, 1 Lev. 62. It is an offense falling within that part of the criminal law, which seeks to prevent the commission

NEW YORK COURT OF APPEALS AB-
STRACTS.

APPLICATION OF PAYMENT. WITNESS-TRANSACTIONS WITH DECEASED PERSONS.-(1) Where debtor and creditor examine their respective accounts together, and agree on the balance due from the cred

balance shall be applied, the statements made by the parties at the time of such settlement are competent evidence in a subsequent suit on such debt. (2) The Code of Civil Procedure of New York, section 829, which forbids a party or interested person from testifying on his own behalf against a person deriving his title or interest from, through or under a deceased person, does not prevent the wife of a deceased mortgagor from testifying in her own behalf against an assignee of the mortgage during the life of the mortgagee, since such assignee does not derive his interest from the mortgagor. Pinney v. Orth, 88 N. Y. 451. (3) An agreement between mortgagor and mortgagee that a certain debt due from the latter shall be applied on the mortgage debt operates as a payment of such debt, though such payment is not indorsed on the mortgage as agreed. Davis v. Spencer, 24 N. Y. 386, 391; Bennett v. Bates, 94 id. 354, 362. Second Division, Dec. 10, 1889. Holcomb v. Campbell. Opinion by Vann, J. Affirming 42 Hun, 398, mem.

ATTACHMENT-DRAFTS RECEIVED FOR COLLECTION. (1) In an action brought by leave of the court by plaintiff in the name of himself and the sheriff, under the Code of Civil Procedure of New York, sections 655, 677, to subject the amount of a claim held by defendant for collection, which has been attached in defendant's hands, to the satisfaction of a judgment recovered against the owner of the claim, the complaint is sufficient if it alleges that defendant has in its possession the amount of a claim belonging to the alleged owner, upon which an attachment has been levied in plaintiff's favor, and that the amount of the claim is due from the owner to plaintiff. (2) Where the trial court has found that the sheriff attached the "claim" of D. & Co., and all their property in defendant's hands, the levy as found is sufficient, though the check given to defendant in payment of a draft due D. & Co., held for collection, was not taken into actual custody, as required by the Code of Civil Procedure of New

York, section 649, when attaching notes or instruments for the payment of money, as the "claim," though resulting from collection of the draft, was not capable of manual delivery. (3) Findings of fact by the trial court are not reviewable on appeal unless they have been excepted to in the court below. (4) Where a draft is given by the drawer to an agent to forward to a third person for collection, it is subject, in the hands of the third person, to levy for a debt due from the drawer. (5) The finding that the draft was delivered by the drawer to an agent for collection is not inconsistent with the finding that it was so delivered, to be forwarded by the agent to a third party for collection by him. Second Division, Nov. 26, 1889. Naser v. First Nat. Bank. Opinion by Bradley, J. Affirming 42 Hun, 658, mem.

ment of the statute establishing the precedent condition upon which the liability of a town is created and enforceable has not been complied with. By means of a judgment declared to be rendered against the defendant commissioners of highways in his official capacity, the plaintiff seeks to enforce the payment of a sum of money claimed to have been expended for the benefit of defendant's town. In the administration of the highway system the commissioner of highways is an independent public officer, exercising public power, and charged with public duties, specially prescribed by law. While acting in that capacity, by virtue of powers conferred by statute, he proceeds independently of any direction on the part of the town. On the other hand, he is without power to represent or affect the rights of the town in any other manner than prescribed by statute. People v. Board, etc., 93 N. Y. 397. BRIDGES-TOWNS-MONEY PAID BY MISTAKE.-A Previous to the enactment of chapter 700 of the Laws commissioner of highways who has paid one-half the of 1881, towns were exempt from the burden of any expense of repairing a bridge leading from his town to general duty in respect to roads and bridges. Neither two other towns, when his town was only liable for were the highway commissioners charged with any one-third of the expense, cannot recover the excess in duty, unless provided with funds by their towns, or an action against the commissioners of the other towns expressly commanded and empowered by statute. where the over-payment has occurred solely through a Town of Galen v. Plank-Road Co., 27 Barb. 551. The mistaken construction of the statute creating the lia- imposition of liability upon towns for the repairs of bility for such bridges, and the other towns have conroads and bridges in any other manner than provided sented to the repairs, and paid as much of the expense by statute is contrary to the settled policy of the law, as was demanded of them. The excessive payment and not permissible. People v. Board, etc., supra. A made by the plaintiff was not made at defendant's recommissioner of highways is powerless to burden the quest. It was not induced by any fraud or improper towu he represents beyond the statutory limitations. conduct on the part of the defendant, but on the conCertainly, he cannot affect the rights and obligations trary was made with full knowledge of all the facts and of other towns, unless the statute so provides. When circumstances growing out of and connected with the it does so provide, he may, if he follow the letter and repair of the bridge. The error on the part of the spirit of the statute, but not otherwise. Had this plaintiff was one of law, not of fact. In the words of plaintiff repaired the bridge without giving any notice Judge Bronson, in Silliman v. Wing, 7 Hill, 159, the to the other towns, would it have been urged for a moplaintiff commissioner "settled for himself a question ment that an action could be maintained against the of law, and concluded to pay the whole amount. other towns for two-thirds of the expense? Assuredly *** I take the general rule to be well settled that not, because the commissioner of highways of one money paid under such circumstances cannot be retown cannot create a liability on the part of another covered back." Judge Danforth, in Bank v. Board, town, except he obey the statutory conditions which etc., 106 N. Y. 488, states the rule as follows: "No per- authorize it. The court below, in its argument supson can make himself a creditor of another by volun- porting the liability of defendant, said that one comtarily discharging a duty which belongs to that other; missioner had no right to "contribute more than oneand no obligation can be implied in law from a voluuthird of the expense, and to contribute less was the tary payment of the debt of another, without his renon-performance of the full duty. It was not quest, by one who is under no legal liability or comthe less the non-performance of a legal duty on the pulsion to make it." This doctrine has been frepart of those who paid too little, because made through quently asserted, and is well settled. Mowatt v. their mistake of the law. The obligation remained to Wright, 1 Wend. 355; Vanderbeck v. Rochester, 46 perform the unperformed duty, and the way to per Hun, 87; Supervisors v. Briggs, 2 Den. 26; Doll v. form that obligation was to be found by paying the Earle, 65 Barb. 298. The rule was applied to a corporamoney to the officer whose receipt of it would be ef tion seeking to recover back moneys paid by one of its fectual to discharge it, namely, to the commissioner officers for an illegal tax. Railroad Co. v. Marsh, 12 N. of the town of Hoosick. His right to receive was the Y. 308. It was held to apply to a guardian who, under reciprocal of their right to pay, and when they refused a mistake of law, paid out the money of his ward. to do this duty, an action accrued to him to whom the Flower v. Lance, 59 N. Y. 609. No reason suggests it-duty was due to enforce it." It will be observed that self for refusing to apply the doctrine to a commis sioner of highways, under the circumstances here disclosed. He was not an agent of the town, possessing generally authority to disburse its moneys. He did not have the power to represent or affect the town, otherwise than in the manner provided by statute. The statute did not confer upon him the authority to burden his town with a greater proportion of the expense of repair than one-third. He could not have enforced reimbursement from the town of Hoosick for the excess. When he exceeded the statutory limit the act was individual, and not official. Such act subjected him, in respect thereto, to the legal application of the rule relating to voluntary payments. The town could not, and did not, by subsequently reimbursing the plaintiff in the amount expended by him in excess of his authority, alter or affect the legal status of the parties as it existed prior to such reimbursement. Again, the action is not maintainable because the require

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the argument quoted is not applicable to the case suggested, because, while it is true the duty to unite in making the repairs exists, the liability to respond to the commissioner making them is nevertheless dependent upon the giving of the notice required by statIt is obvious therefore that the duty to repair does not of itself authorize the maintenance of an action. Second Division, Dec. 10, 1889. Flynn v. Hurd. Opinion by Parker, J. Reversing 40 Hun, 637, mem.

ute.

CARRIER-EJECTION OF PASSENGER-WITNESS-IMPEACHMENT.--(1) Where, in an action for an assault and battery for forcibly removing plaintiff from defendant's car, the defense is that plaintiff refused to pay the additional fare required by a regulation of the company for packages too large to be carried on a passenger's lap without incommoding others, it is for the jury to determine whether two parcels, twenty by twenty-four inches in size, are within the purview of

the regulation. (2) Evidence as to the number of passengers in the car when plaintiff entered, though not bearing on the question of defendant's right to charge additional fare, is admissible as tending to show whether any passengers were incommoded by plaintiff's packages. (3) Where the driver and conductor of the car, and the policeman who had assisted in plaintiff's eviction, are first asked, ou cross-examination by plaintiff, whether they had made certain statements on a previous hearing before a police commissioner, contradictory evidence is not admissible against defendant on the merits, but will be presumed to have been given to impeach the credibility of the witnesses. (4) The conductor was asked, on cross-examination by plaintiff, whether he testified before the commissioner that he told plaintiff that he could not ride inside the car because it was against the rules, unless he paid additional fare, to which he answered affirmatively. Held, that evidence that he did not so testify was irrelevant and inadmissible to impeach his credibility, as it related to a matter collateral to the issue. Second Division, Nov. 26, 1889. Morris v. Atlantic Ave. R. Co. of Brooklyn. Opinion by Bradley, J. CARRIER- -OF GOODS-CONTRACT. (1) In an action for freight, for the detention of plaintiff's canal boat, and for expenses of towage, where both parties in their pleadings allege that important provisions of the contract of transportation were not embraced in the bills of lading, it is competent for plaintiff to testify that it was orally agreed that the cargo should be unloaded alongside, and that if plaintiff's canal boat was sent beyond a certain place defendant should pay the expense of towing it. (2) The weight of the cargo having been established by plaintiff's undisputed testimony, the introduction in evidence of a weighmaster's certificate is not reversible error, though that mode of proving the weight is incompetent. Second Division, Nov. 26, 1889. Doty v. Thompson. Opinion by Follett, C. J. Reversing 39 Hun, 243.

CIVIL DAMAGE ACT EXEMPLARY DAMAGES.- (1) Under Laws of New York, 1873, chapter 646, section 1, which provides that whenever the person, property or means of support of certain classes of persons shall be injured by any intoxicated person, or in consequence of the intoxication of any person, they shall have a right of action, and that the person who shall have sold or given the liquor causing the intoxication in any degree, and any person owning, renting or permitting the occupancy of the premises having knowledge that liquors were to be sold therein, shall be liable severally and jointly for the injury, for all damages sustained, and for exemplary damages, one cannot recover exemplary damages against the owner of the premises without legitimate evidence being given for that purpose, as the law created merely a new cause of action, and did not change the rules of ascertaining and determining the damages or the limits of hability. A critical examination of the language of this statute will suggest, to a mind familiar with legal principles, that the Legislature has and intended to create a cause of action or a right to recover damages for an injury where one did not exist before, and to apply to such new cause of action an existing remedy. Volans V. Owen, 74 N. Y. 526; Mead v. Stratton, 87 id. 493. The Legislature has in this statute defined the elements of a new cause of action, and who may be liable for it. The Legislature however made no change in the rules of ascertaining and determining the damages, or the limits of liability in the newly-created causes of action, but left them subject to the existing rules of damages, and to the facts established upon the trial. The damages recoverable in actions for torts or wrongs have long since been classified into " compensatory and "punitive" or "exemplary." Compensatory damages were not recoverable except upon proof of certain

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facts, and punitive damages were not recoverable without proof of facts additional to the facts required to recover compensatory damages. The distinction between the two kinds was quite as well defined and as essential as the distinction between different causes of action. Compensatory" damages, as indicated by the word employed to characterize them, simply make good or replace the loss caused by the wrong. "Exemplary" damages, as also indicated by the word employed to characterize them, besides making good the loss, serve to punish and make an example of the wrong-doer. Voltz v. Blackmar, 64 N. Y. 440, 444; Fisher v. Railroad Co., 34 Hun, 433; Rawlins v. Vidvard, id. 205. Compensatory damages proceed from a sense of natural justice, and are designed to repair that of which one has been deprived by the wrong of another. To this species of damage the Legislature or the courts have from time to time, in certain classes of wrongs, added another kind of damage, when their commission was prompted or characterized by motives of malice, cruelty, oppression, wantonness or recklessIt may be reasonably presumed that the Legislature, knowing that it was giving a cause of action for a new additional wrong, and wishing to stamp this wrong with the same character as other wrongs, declared from the outset, and without waiting the doubtful or dilatory action of the courts, that exemplary damages might be recovered in this class of actions. It cannot be supposed the Legislature intended to go further than to place this wrong upon the same plane with other wrongs where exemplary damages may be recovered, when the evidence upon the trial will justify such damages in accordance with well established and recognized rules. A contrary conclusion would make one who rents a building or permits it to be occupied without reward, knowing that liquors are to be sold therein under a license from the public authorities, and with no other connection with the statutory wrong-doers, and without other personal fault or misconduct, liable, at least in part, to the punishment inflicted for a violation of the criminal laws. I am not willing to give such construction to the statute in question. Neither its language nor its purpose require or would justify it. It is better, when established legal principles are to be so far departed from or so radically changed in pronouncing or affirming a judgment, that it should be done by the law-making, rather than the law-interpreting, power. All the adjudicated cases save one, and that one by a divided court, so far as I have been informed, have held in harmony with these views. Rawlins v. Vidvard, 34 Hun, 205, before referred to, in a very well-considered opinion of the General Term, Fourth Department, holds that where an action is brought against the owner of premises under the Civil Damage Act, by a wife to recover damages for injuries, etc., through a sale of intoxicating liquors by the tenant to her husband, exemplary damages cannot be awarded by the jury without proof of aggravating circumstances with which the defendant is connected. Davis v. Standish, 26 Hun, 608-615; Jackson v. Brookins, 5 id. 530-535. Also in Ketchum v. Fox, 5 N. Y. Supp. 272. Franklin v. Schermerhorn, 8 Hun, 112, holds that "although the jury, in this class of cases, have the right to give exemplary damages, yet they should only be given where there are circumstances of abuse or aggravation proved on the part of the vendor of the liquor." The question under consideration was before this court in one aspect in Neu v. McKechnie, 95 N. Y. 632. It was in relation to what was proper evidence to warrant a recovery of exemplary damages in an action under this statute against the vendor. The case recognizes the established rule that, in order to recover exemplary damages, legitimate evidence must be given for that purpose. All the cases which have been decided require such proof to be given against the vendor to entitle such recovery, notwithstanding

the peculiar phraseology of the statute, and yet it may | joyment, rests on the presumption that the grantee

be just as reasonably argued, from that wording, that a recovery of exemplary damages may be had against the vendor without any proof of the facts requiring it in other cases. The statute, after declaring the wrong, and the persons who may have an action, designates the persons liable therefor, viz., the vendor and owner in the circumstances specified, severally or jointly, for all damages sustained, and for exemplary damages. If this language, alike applicable to both vendor and owner, does not relieve the plaintiff from proving the requisite personal facts for exemplary damages against the vendor, why should it relieve plaintiff from the necessary personal facts to recover exemplary damages against the owner? I do not think the fact that the Legislature has enabled the injured party to bring a joint action against the vendor of the liquor and the owner of the premises affects the decision of the question under consideration. Joint actions may be brought against joint wrong-doers and a joint judgment be obtained. Not howeyer for the highest sum that either defendant may be liable for, but for the lowest. The plaintiff has an election in an action for tort to sue joint wrong-doers severally or jointly. If he sues them jointly, he will be limited to the lowest amount of damages which either defendant may be severally liable for upon the facts established. (2) But it is claimed in behalf of the respondent that even if the charge in relation to the right of the plaintiff to recover in this case exemplary damages against the owner of the premises be improper, yet the verdict in this case embraced no exemplary damages. Perhaps that may be so. This court cannot resolve itself into a jury, or an inquisition to investigate the evidence presented in the appeal book. Second Division, Nov. 26, 1889. Reid v. Terwilliger. Opinion by Potter, J. Reversing 42 Hun, 310.

must have known of, and purchased with reference to, the public easement, where there is evidence, in an action for a breach of covenant, that plaintiff's grantor claimed to own the land; that, at the time of the conveyance, there was no indication of a street, but that the land was inclosed; and that the fence had the appearance of having been standing a long time-it is error to refuse to submit to the jury the question whether there was any indication of a street on the land in controversy, and whether plaintiff had notice of the public easement when he purchased. It must be deemed the settled doctrine in this State that the fact that part of land conveyed with covenant of warranty was at the time of conveyance a high way, and used as such, is not a breach of the covenant. This is so for the reason that the grantee must be presumed to have known of the existence of the public easement, and purchased upon a consideration in reference to the situation in that respect (Whitbeck v. Cook, 15 Johns. 483; Huyck v. Andrews, 113 N. Y. 85); and such is the rule in Pennsylvania. Patterson v. Arthurs, 9 Watts, 152; Wilson v. Cochran, 46 Penn. St. 229. To hold otherwise is going further than did the court in Whitbeck v. Cook. There it was properly assumed that the highway was in use as such, and may have been seen by the purchaser; that he must be presumed to have known of its existence, and therefore purchased in reference to it. Such were substantially the views of the court in Wilson v. Cohran. And in Patterson v. Arthurs, Mr. Justice Kennedy, in delivering the opinion of the court, said that "it is fair to presume that every purchaser, before he closes his contract for his purchase of land, has seen it, and made himself acquainted with its locality, and the state and condition of it; and, consequently, if there be a public road or highway open and in use upon it, he must be taken to have seen it, and to have fixed in his own mind the price that he was willing to give for the land with a reference to the road." In the latter case in that State, of Appeal of Bank, 3 Atl. Rep. 821, it was held that the fact that a street had been lawfully laid out, and not opened, was such a defect in the title which the vendor had undertaken to convey as to relieve the purchaser from the obligation to perform his executory contract of purchase. The only other case in our State referring to the subject, to which our attention has been called, is Rea v. Minkler, 5 Lans. 196, where it was held that the existence of a private way on the premises conveyed with warranty constituted a breach of the covenaut. And there Mr. Justice Miller, after city, for buying and selling such bonds, was admis- citing the Whitbeck Case, and assuming that it went

CONTRACT-QUANTUM MERUIT—EVIDENCE.-(1) In au action on an alleged contract for plaintiff's services in the purchase of bonds, whereby plaintiff was to receive half the profits, the court found there was no contract, and that plaintiff rendered no services for which defendant promised, expressly or impliedly, to pay. Plaintiff made no request to amend his complaint so as to recover for the value of his services, and offered no evidence, but in support of the alleged contract. Held. that he could not recover quantum meruit. (2) Defendant's promise to allow plaintiff for the value of his services the amount claimed, being in dispute, evidence of the usual rate of commissions in New York

sible. Evidence of that character is not competent to contradict the terms of an agreement, free from ambiguity, or to qualify their legal effect upon the rights or liabilities of the parties to the contract. Hopper v. Sage, 112 N. Y. 530. The evidence may have had some bearing upon the question of the value of the alleged services of the plaintiff, and if evidence with that view, was admissible for any purpose, there was no error in that ruling. In Wiedner v. Phillips, 114 N. Y. 458, it was held that where the fact of an agreement for the sale of property for a specific price is in dispute upon the trial, evidence of its value may be given, as bearing upon the question. There is no reason why the same rule may not be applicable to that arising out of the disputed fact whether the defendant, by agreement, undertook to allow and pay to the plaintiff the amount of commissions, etc., for his services as claimed by him. Second Division, Dec. 10, 1889. Rubino v. Scott. Opinion by Bradley, J. Affirming 21 Jones & S. 537, mem.

COVENANTS-HIGHWAYS-RES ADJUDICATA.-(1) As the rule that the existence and user of a part of the land as a highway at the time of the conveyance does not constitute a breach of the covenant for quiet eu.

to the extent of holding that a highway in existence at the time of the sale, and for a long time previously, is not a breach of a covenant of warranty, he thought there was a broad distinction between a public and private right of way, and added: "While the latter might be unknown to a purchaser, the former, running through a farm, would be seen when purchased." So far as relates to a private right of way, this is supported by Huyck v. Andrews, supra. The exemption of the easement to the public in a highway from the operation of the covenant of warranty evidently rests upon the presumption arising from the opportunity furnished to the purchaser, by its apparent existence or use, to take notice of it; and, when that is the situation, the purchaser is charged with knowledge of it. But when no such opportunity exists, and no means of notice of the existence of the right to a public easement is open to observation upon the premises, there is no well-founded reason to support the proposition that the subsequent appropriation by the public, in the exercise of such pre-existing right, of a portion of the land conveyed, is exempt from the operation of the covenant of warranty. In such case, it cannot be said that the purchaser, without notice of the existing bur

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