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LEVY v. FURBER.

(Supreme Court, Appellate Division, Second Department. December 14, 1900.) AGENCY-COMPETENCY OF EVIDENCE.

In an action against a father for goods sold to the son, a question put to plaintiff by his counsel, "Do you know defendant's son, who managed the store for him?" and the answer thereto, were incompetent to support the theory that the son acted as agent for the father.

Appeal from municipal court of New York.

Action by Max Levy against John W. Furber. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

G. J. Wiederhold, for appellant.

M. Hallheimer, for respondent.

PER CURIAM. This action appears to have been brought to recover the sum of $75.44 for cigars which the plaintiff claims to have sold to the defendant, as the proprietor of the store No. 1235 Broadway, in the borough of Brooklyn. The cigars were sold in the months of October and November, 1899, and the dealings were actually had by the plaintiff with the defendant's son, Albert W. Furber. The theory of the plaintiff, however, was that the son acted as agent for the father in the transactions. There is evidence opposed to this theory, and we would not feel justified in reversing the judgment as against the weight of evidence. In support of the plaintiff's theory, however, he was asked by his counsel the question (referring to the store No. 1235 Broadway), “Do you know the defendant's son, who managed the store there for him?" and he was permitted to answer in the affirmative, under objection and exception. Such evidence so elicited is manifestly useless as proof of the substantive fact that the store in question was conducted by the defendant under his son's management. There was evidence tending to establish that the father and son were co-partners in business prior to January, 1899; that a bill of sale of his interest in the store and stock was duly executed and delivered by the defendant to his son on the 3d day of January, 1899; that the son conducted the business thereafter in his own right and interest; and that the cigars in suit were purchased by the son in his own name, and were so billed to him by the plaintiff. The plaintiff, while not admitting that the bills after January, 1899, were made out against the son, testified that he did not remember how they were made out at that time. Under the circumstances, we think there should be a new trial of the case.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event.

and 101 New York State Reporter

WILSON v. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division, Second Department. December 14, 1900.)

1. EVIDENCE-INSTRUCTIONS TO JURY.

Plaintiff, a passenger on defendant's car, while stepping from the platform to the metal doorsill, received an electric shock that paralyzed him. Defendant's conductor testified that another passenger claimed to have received a shock on the car a short time before it reached a ferry, which was just prior to the time plaintiff got on, and that he reported the car as defective to the inspector at the ferry. Held, in an action for damages, that the evidence was hearsay.

2. TRIAL-OBJECTIONS TO EVIDENCE.

In an action for injuries against a street-railway company, defendant's conductor was asked what report he made to the inspector as to the condition of the car that caused the injuries. The question was objected to, and, the objection being overruled, exception taken. A motion was then made to strike out the answer and exception taken to the denial of that motion. Held, the evidence having been duly objected to, a new objection to a substantial repetition of the question was unnecessary.

Appeal from trial term, Kings county.

Action by Thomas P. Wilson against the Nassau Electric Railroad Company. From a judgment in favor of plaintiff and an order denying a motion for a new trial, plaintiff appeals. Reversed.

John L. Wells, for appellant.

Thomas E. Pearsall, for respondent.

JENKS, J. This judgment for plaintiff must be reversed for an erroneous charge. The action is brought to recover damages for personal injuries suffered through the negligence of the defendant. The plaintiff complained that he was a passenger on the car of the defendant, and that while stepping from the platform to the metal doorsill of the car he received an electric shock that paralyzed him. It is not claimed that the car was out of order. The car was constructed of wood and metal. It was propelled by electricity. It was wet, and its platform was wet and slushy, for the day was rainy, and snow was on the ground; and the accident was due to the fact that the plaintiff, who had been wet by the rain, completed a circuit for the electric flow. This is the explanation of the experts of the plaintiff. Bausert did testify that, if proper insulating material were employed, wet wood would not carry the current; that he "believed" such material was in use, and that he had used insulating material in cars. He stated that he had worked upon these cars three years before, and that then he had employed the latest and most improved methods in wiring. After the main charge of the learned court, the learned counsel for the plaintiff asked the court to charge that, if the jury "find another passenger was shocked by electricity on the car on the way to the ferry, and before it reached the ferry, and that the conductor reported the car as defective to the man in charge, the jury may take that evidence into consideration in determining the condition of the car when it left the ferry." The learned counsel for the defendant said, "There is no such claim in the complaint." The court said: "If you want that charged, I

will charge it, and you take your chances. I will charge it, and give the defendant an exception." The learned justice practically informed the jury that there was evidence in the case on which they might find that another passenger had received a shock of electricity on this car on the day in question on the way to the ferry, and before it reached the ferry; that is, prior to the time that the plaintiff boarded this car at Marcy avenue and Walton street. If there were testimony in the case permitting an inference of such fact, then it would bear upon the negligence of the defendant. Indeed, the court so charged. And, in addition, it might, even then, aside from its legitimate bearing, tend to influence the passions and to wake the prejudice of the jury. If there were no such evidence in the case, how can it be said that the court fell into an error harmless to the defendant? The only part of the record that requires consideration is that relating to the examination of the defendant's conductor, who was called by the plaintiff, and who was asked: "State what report you made to the inspector of this railroad at the ferry as to the condition of the car." This was objected to as incompetent, immaterial, and not binding upon the company. The objection was overruled, and an exception was taken. After some preliminary questions, the learned counsel for the plaintiff asked: "Now, state what report you made to him. A. I told him that there was a passenger made a kick, and the car was out of order,-of a shock." Thereupon the defendant's counsel made a motion to strike out, which was denied under exception. Thereupon the plaintiff's counsel put this question: "State all that you said to the starter of this railroad at the ferry when you went there that day." Thereupon, the witness answered: "I told him, when I went to the ferry, there was a passenger claimed he got a shock, and the car was not fit to be on the road. And when I reached Walton street, it was there that Mr. Wilson [the plaintiff] got on the car." The conductor's statement that "he told him there was a passenger made a kick, and the car was out of order,-of the shock," may well be read as equivalent to testimony that the witness had told the inspector that a passenger had made an objection or a complaint that the car was out of order, and that the complaint made by the pas senger was that he (the passenger) had received a shock from the electric current. Certainly, the answer to the question, when put a second time, "I told him, when I went to the ferry, there was a passenger claimed he got a shock, and the car was not fit to be on the road," is susceptible of a similar reading; and, as so read, each piece of testimony as proof that a passenger received a shock is rank hearsay, and not evidence. And, as this is all of the testimony in the record touching the complaint, there was no evidence before the court upon which the request to charge could be founded. If this be so, here is error that requires reversal without any further scrutiny of the record. Hutchins v. Hutchins, 98 N. Y. 56, 65, 66; Willson v. Law, 112 N. Y. 536, 542, 20 N. E. 399; Rouse v. Lewis, 4 Abb. Dec. 121, 122; Hollister v. Johnson, 4 Wend. 639; Moore v. Railway Co., 7 Lans. 39, 43; Crossman v. Harrison, 4 Rob. 38, 41; McLewee v. Hall, 103 N. Y. 639, 8 N. E. 486. In considering this

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and 101 New York State Reporter

testimony under another point, the learned counsel for the respondent contends that it is questionable whether the learned counsel for the appellant fortified himself sufficiently upon the record so as to present the ruling upon this appeal. The first question that, when, in effect, repeated, led to these answers, was objected to, and an exception was taken. A motion was then made to strike out the answer, and exception was taken to the denial of that motion. I think that the defendant was not required to repeat his objection. and his motion with reference to the final question and the final answer, respectively, in the teeth of the former rulings of the learned trial justice. Sherman v. Railroad Co., 106 N. Y. 542, 547, 13 N. E. 616. The court charged the request with evident reluctance and misgivings, warning the plaintiff of the peril. The judgment must be reversed, and a new trial must be ordered.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

MOLLER v. WATTS et al.

(Supreme Court, Appellate Division, Second Department. December 14, 1900.) 1. MORTGAGES-JUDICIAL SALE-PRICE-INADEQUACY.

Where, on a motion to set aside a sale of property under a mortgage foreclosure, it appeared that other bidders were willing to offer only a very slight increase over the amount bid at the sale, and that the sale was fairly conducted, in the presence of the mortgagor, an order setting the sale aside, and directing a resale, was erroneous.

2. SAME CONDUCT OF SALE-STATEMENT BY REFEREE.

Where, on a sale of property by referee under a mortgage foreclosure, the referee made an unauthorized statement in regard to the redemption of the land to be sold, but did not incorporate the statement in the terms of the sale, and the statement did not deter bidders or affect the sale, it will not justify setting aside the sale.

Woodward, J., dissenting.

Appeal from special term.

Action by Peter Moller against Lucy Watts and others to foreclose a mortgage. From an order of the special term setting aside the sale under the decree of foreclosure, and directing a resale, plaintiff and the purchaser at such sale appeal. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Harry W. Avery and Abel E. Blackmar, for appellants.
Joseph F. Daly, for respondents.

JENKS, J. This is an appeal from an order of the special term granting a motion to set aside a sale under a mortgage foreclosure and directing a resale. Mr. Daniel, appellant, was the second mortgagee and the purchaser at the sale. The sale was set for October 1, 1900, and was adjourned until the 15th of that month. The amount of the first mortgage lien, with costs, was $26,000, and the total amount of liens, including the taxes and the second mortgage,

was about $40,000. At the beginning of the sale the attorney for the defendant Mrs. Watts, who was the owner of the equity of redemption, asked an adjournment. The attorneys for the plaintiff and for Mr. Daniel, respectively, opposed, and the referee denied the application, and then made a statement. The defendants' attorney, Mr. Jaffray, an unsuccessful bidder, Mr. Emberson, a realestate broker, Joseph F. Daly, Esq., John H. Coyne, Esq., and the defendant Mrs. Watts make affidavits, respectively, to the effect that the referee, on denying the application, stated that he would hold the sale open for 30 days, and that, if within that time the defendant Watts would offer him the amount sufficient to discharge the liens on the premises, he would receive it, and cancel the sale. The referee deposes that he stated:

"He saw no reason why the owner of the equity should not come in at any time within thirty days after the sale, being the time set for closing the title, and redeem the property, on paying the judgment and all other incumbrances and expenses incurred, and that the owner of the equity would have that opportunity."

Walter Vreeland, Esq., Mr. Daniel, the purchaser, and Ralph Sturges, Esq., in their affidavits substantially agree with the referee.

The referee then proceeded with the sale, read the ordinary terms of sale, and, after some bidding, struck down the premises to Mr. Daniel, who paid the required percentage and signed the terms of sale. On the day before the title was closed, Mr. Jaffray, with his counsel and the counsel for the defendant Watts, tendered the referee a sum sufficient to redeem the premises, which was refused. The learned counsel for the respondent argues that the sale was rightly vacated on the ground of inadequacy of price, and cites Thomas, Mortg. § 974. The exact language of the text is:

"While inadequacy of consideration, standing alone, affords no conclusive reason for setting aside a sale, it is always a material element, when joined with other circumstances."

In Housman v. Wright, 50 App. Div. 606, 64 N. Y. Supp. 71, this court, per Hirschberg, J., said:

"In Wesson v. Chapman, 76 Hun, 592, 28 N. Y. Supp. 192, there appears to have been an offer to bid double the amount of the sale sought to be set aside, but the court said (page 596): 'Mere inadequacy of price is not a ground for such relief, unless it be so great as to shock the conscience of the court, and raise the inference of unfairness or fraud, or unless there are circumstances of mistake or surprise.' O'Donnell v. Lindsay, 7 Jones & S. 523; Kellogg v. Howell, 62 Barb. 280; Gould v. Gager, 18 Abb. Pr. 32; Tripp v. Cook, 26 Wend. 143; Insurance Co. v. Oakley, 9 Paige, 259."

It is true that the defendant Mrs. Watts, the owner of the equity of redemption, and Mr. Emberson, a real-estate broker, depose that the premises are worth from $60,000 to $65,000, and Mrs. Watts further deposes that they are assessed for the latter sum. But, aside from these statements, there was nothing before the court upon the motion, save the affidavit of Mr. Jaffray, who deposes that he would be willing to bid on the sale at least the sum of $41,000. This is but $900 more than the sum bid, and $400 over the sum of the present amount due and of the purchaser's expenses. It does not appear that any one has offered more than $41,000, or that at a

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