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Action by Willis C. Hubbard against William C. Rodger and another. From a judgment entered in Erie county in favor of plaintiff, defendants appeal. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Louis Marshall, for appellants.
C. F. Whitcher, for respondent.

DWIGHT, P. J. The appellants are the sureties in a bond given by the contractors for certain work on the Erie canal, pursuant to the requirements of chapter 278 of the Laws of 1850, (Birdseye's Ed., p. 390, § 48.) The plaintiff is the assignee of the claims of a number of laborers employed by the contractors on the work. All the labor performed by the several assignors, and for which the contractors were indebted to them, was completed more than three months before the commencement of this action, while, as the referee finds, the entire work under the contract was not completed until less than 30 days before that date. This statement of facts presents two questions of law, which are considered by the referee in his opinion, and upon both of which his conclusions are in accordance with the plaintiff's contention. The questions are (1) whether section 1 of the statute above cited, which prescribes the conditions of the bond, creates any liability on the part of the sureties in such bond in favor of an assignee of the claim of laborers; and (2) whether this action, as against the sureties, was barred by the limitation of time prescribed by section 3 of the same statute. The full text of the statute is as follows:

"Section 1. It shall be the duty of any canal commissioner or other officer having charge of the letting of any contract for work on any of the canals or other public works of this state, to require and take, in addition to the bond now required by law for the security of the state, a bond with good and sufficient sureties, not less than two, conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in such contract, which bond shall be duly acknowledged before an officer authorized to take acknowledgments of deeds, and filed by the officer taking the same in the office of the clerk of the county wherein such contract or work is to be performed. And when such work shall be partly in two or more counties, there shall be such a bond filed in the clerk's office of each county. Sec. 2. Suits may be commenced on said bond before a justice of the peace, when the amount claimed shall not exceed the jurisdiction of a justice of the peace, and a transcript of such bond, duly authenticated by the county clerk, may be used in evidence in such suit. Sec. 3. The bringing of a suit by one or more laborers, upon such bond, shall not operate as a bar to the bringing of other suits thereon, by any of the parties for whose benefit such bond was taken, and to whom such contractor shall be indebted for labor. But no recourse can be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is secured by such bond. But nothing in this act contained shall prevent or bar a suit against such contractor, within the time limited by law."

Upon the plain reading of this statute, we think the conclusion of the referee on the second of the questions above stated was erroneous. In order to avoid the application to this case of the short statute of limitations in favor of sureties, contained in the third section, he construes the words "thirty days after the completion of the labor, the payment of which is secured by such bond," to intend 30 days after the completion of the entire labor expended upon the work under the contract; in other words, the labor of all the laborers employed on the work. It is true that the payment of all this labor is intended to be secured by the bond; but it is equally true that the bond is, by its express terms as well as its general tenor, intended as security to each man individually, and that, as to each man who may have occasion to resort to it, “the labor, the pay. ment of which is secured by such bond,” is his own labor, and that alone. The single and commendable purpose of the statute is to secure to every laborer on the public works prompt and regular nay. ment of his wages "at least once in each month.” This purpose would be entirely defeated if each man's remedy against the sureties in the bond were postponed until every man's labor on the entire work was completed, which might not be in many months, or even years. The whole tenor of the statute is opposed to such a construction. It is careful to afford every facility for the prompt and easy enforcement of the remedy provided. It provides for proof at hand in every case, and a ready and inexpensive tribunal, and that each man shall have his own action, unaffected by whatever action has been taken by others. All its provisions indicate the purpose to give an individual security and an individual remedy. It requires security for the payment of every man's wages at least once in each month. How is this security afforded by a bond which can be enforced only after the completion of the entire work, be the time longer or shorter? Nor do we find anything in the particular terms employed in the statute which necessitates a construction opposed to the general tenor of its provisions. The criticism which is made upon the use of the word "completion" instead of "performance of the labor, etc., seems to us more nice than forcible. Indeed, there is one view in which the use of the word “completion” is necessary to the construction which we adopt. Each man's labor is “per. formed" daily, and payment for each day's labor is secured by the bond; but it was evidently not intended that the bond should be enforceable for each day's wages. Whereas, each man's labor, for the payment of which security is given, is "completed" either at the expiration of each month, or-sooner-when his connection with the work ceases. And so, we suppose, it is the purpose and effect of this statute, and of the bond given in compliance therewith, that if a man's wages are not paid at the end of every month during which he labors, or at the expiration of his whole time, he has, then, his remedy against the sureties, by his action on the bond; otherwise, the bond does not afford security for the payment of his wages "at least once in each month," as by its terms it purports to do. If such is the true construction of the statute, and of the bond given in conformity therewith, then the 30-days limitation of time, within which proceedings were required to be commenced for the enforcement of this bond, as against the sureties therein, had fully run against each of the plaintiff's assignors before the commencement of this action, and the action was barred thereby. This conclusion,


which seems to us unavoidable, upon the conceded facts of the case, s0 completely defeats the plaintiff's action that we deem it unnecessary to consider the other question proposed, the answer to which is perhaps not so clear. The judgment appealed from should be reversed, and the complaint dismissed. So ordered. All concur.

(75 Hun, 243.)

THORNTON V. ROGERS. (Supreme Court, General Term, Fifth Department. January 18, 1894.) APPEAL-WEIGHT OF EVIDENCE.

In an action by a stenographer for furnishing a copy of the minutes of a proceeding, plaintiff testified that defendant's counsel applied to him for the copy, and agreed to pay a certain sum therefor. The counsel denied this. Defendant testified that he wrote to plaintiff, asking him, if he had prepared copies of the minutes, to send one to his counsel, to be used in making his brief, and that it would be returned, to which plaintiff replied that he would send the copy as requested, but no mention was made of compensation. Held, that a verdict for plaintiff was not sustained by the evidence. Haight, J., dissenting. Appeal from circuit court, Erie county.

Action by George H. Thornton against James C. Rogers. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
J. C. Rogers, in pro. per.
John Laughlin, for respondent.

DWIGHT, P. J. The defendant, during the session of the senate of this state in the year 1890, contested the seat of the sitting member for the sixteenth senatorial district. The plaintiff was the official stenographer of the senate, and of the committee of privileges and elections, to which the defendant's contest was referred for investigation. During or at the close of the taking of testimony by the committee, the plaintiff furnished to the defendant a copy of the minutes of the proceeding; and in October, 1891, this action was commenced, in which, by his original complaint, he claimed to recover, only on a quantum meruit, the sum of $680 for such copy. Issue was joined by an answer and an amended answer of the de fendant, and he made an offer of judgment for $225, which was not accepted. At the opening of the trial the plaintiff was permitted to amend his complaint by inserting an allegation of a special contract of the defendant, by Mr. George B. Wellington, his counsel in the legislative proceeding, to pay the plaintiff, for the copy of the min. utes to be furnished to him, at the rate of 20 cents a folio. To maintain the affirmative of the issue thus made, the plaintiff gave no evidence, except by his own testimony. He testified that the investigation was commenced in the latter part of January, 1890; that, after the first two or three sittings of the committee, Mr. Wellington applied to him to be furnished with a copy of the minutes; that he

agreed to furnish them at 20 cents a folio; and that he did so,-hav. ing a copy of the testimony taken up to that time transcribed, and furnished to Mr. Wellington,—and after that furnished him with copies as the investigation proceeded. He denied any recollection or belief that he ever received any letter from the defendant himself on the subject of furnishing the copy to him or his counsel, and he reiterated more than once his statement of the manner in which the copy was furnished, once in the following language, on crossexamination: "Yes, sir; I say that I furnished the testimony along in detached parts,-a session at a time, as a rule.” The testimony thus given was met on the part of the defendant by the testimony of Mr. Wellington, who positively denied that he ever applied to the plaintiff for a copy of the testimony; that he ever promised to pay him 20 cents a folio for such a copy, or ever had any conversation with him on the subject. By the testimony of the defendant, to the effect that in the latter part of March, and after the case for the contestant was closed, he wrote a letter to the plaintiff, in. forming him that Mr. Wellington desired a copy of the stenographer's minutes, for the purpose of making his brief for argument, and that if he (the plaintiff) had prepared copies of the minutes, and would send one of them to Mr. Wellington to be used for the purpose mentioned, it would be returned to the committee, with the brief, at the close of the case; that the next day he received a letter in answer from the plaintiff. The letter of the plaintiff was produced and put in evidence. It was as follows:

"Albany, March 21, 1890. "Gen. James C. Rogers-Dear Sir: Your favor of yesterday is at hand. I will have prepared, and send to Mr. Wellington, a copy of the proceedings thus far taken, as you request. Yours, truly, (Signed]

"George H. Thornton." The foregoing statement contains the substance of the material evidence in the case, upon the submission of which to the jury a verdict was rendered in favor of the plaintiff. The defendant moved for a new trial upon the ground, among others, that the verdict was contrary to the evidence, and his motion was denied. We think the motion was well founded, and that its denial was error. The plaintiff held the affirmative of the issue, and was bound to support it by a fair preponderance of the evidence, or fail of a recovery. To that purpose, his own testimony stood alone. It was uncorroborated by any evidence in the case, either direct or presumptive. He was interested in the result of the action, to the full extent of the recovery sought. He was fully contradicted, upon the question directly in issue, by the testimony of a disinterested witness, and by the well-nigh conclusive presumption to be drawn from his own letter to the defendant. It is not easily credible that he should have written that letter in answer to the letter of the defendant, the receipt of which he acknowledges, if he had already concluded a bargain with the defendant's counsel to furnish him copies of the minutes at a price agreed upon, and especially if, as he repeatedly testifies, he had already been engaged for nearly two months in furnishing the counsel with those copies, from day to day, of the

sessions of the committee. We understand the reluctance with which a judge at the circuit, who has once submitted a case to the jury, interferes to set aside the verdict, when it is rendered in response to such submission, but that sometimes it may be his duty to do so cannot be doubted, and this even in a case where his denial of a motion for a nonsuit was not error; for, as was said by Allen, J., in Colt v. Railroad Co., 49 N. Y. 671, the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial. See, also, Adsit v. Wilson, 7 How. Pr. 64, 66; Smith v. Insurance Co., 49 N. Y. 211; Mulligan v. Railroad Co., (Sup.) 11 N. Y. Supp. 452. It is manifest that the present is a strong case for setting aside the verdict. The contradiction of the plaintiff was not by the other party interested, but by a disinterested witness, and by the letter of the plaintiff himself. It is impossible to say that this verdict is supported by a fair preponderance of the evidence. The contrary is plainly the case, and the motion for a new trial should have been granted on that ground, if no other.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

LEWIS, J., concurs.

HAIGHT, J., dissents.

(75 Hun, 255.)


(Supreme Court, General Term, Fifth Department January 18, 1894.) 1. EVIDENCE-PHOTOGRAPHS-VERIFICATION.

Photographs of a locality need not be proved by the photographer who took them to be accurate, but any eyewitness of the locality may verify their accuracy. Roosevelt Hospital v. New York El. R. Co., (Sup.) 21


Striking out testimony on the ground that it is not responsive to the question is in the discretion of the trial court. Appeal from circuit court, Monroe county.

Action by Edward H. Nies against Calvin E. Broadhead and others. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
H. G. Danforth, for appellants.
E. Van Voorhis, for respondent.

DWIGHT, P. J. The action was for a bodily injury sustained by the plaintiff in being thrown from or in his buggy down a high bank by the side of a temporary road constructed by the defendants to avoid a deep cut by which they had intersected the highway in the construction of a railroad. The motion for a new trial purported. to be made "on all the grounds set forth in section 999 of the Code

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