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preponderance of evidence which tends to establish the proposition is all that is required. So, where the issue is of marriage, although the contract itself may not be established by direct evidence, yet it may be established by circumstances. It may, from the actions of the parties, their visible relations to each other, and their representations to others, be inferred that at some previous time they had entered into a contract of marriage; and that is all the dignity of the proof of cohabitation and repute. It is circumstantial ev. idence tending to establish a previously existing fact; and such proof may be as satisfactory as, and often more satisfactory than, the much more limited direct evidence which it is ordinarily possible to produce.

It has been further urged as an objection to the character of the proof offered in this case that there was a failure to prove that a contract of marriage, per verba de presenti, was a marriage, under the laws of Pennsylvania, and that there was no proof what the laws of that state were, and that there was no proof that this marriage was existing on the 7th of January, 1889, the time of the at. tempted marriage, or that no divorcement or annulment of any pre-existing marriage was had. As for the laws of Pennsylvania, in the absence of proof, they are presumed to be the same as the common law of this state. As to the question of the proof that there was no divorce or annulment of any pre-existing marriage, even in a trial for bigamy, no such proof is required. The relation once established, it is supposed to continue to exist until something is proved to have dissolved it. And, the existence of this marriage between Mann and the contestant having been established, it was incumbent upon her to show that the disability had been removed when she attempted to marry the testator.

It would be impossible, within the limits to which this opinion should be kept, to consider in detail the evidence before the surrogate tending to establish the marriage to Mann. The probative character of such evidence always depends largely upon the peculiar features of each individual case, as will be seen by a reference to the adjudications upon the question as summed up in the case of Hynes v. McDermott, 10 Daly, 423. In the case at bar the evidence of cohabitation and repute was of the most satisfactory and complete character. Indeed, it seems it would have been difficult for the surrogate to come to any other conclusion, from all the evidence introduced of the long existing relations between Joshua J. Mann and the appellant, but that they were husband and wife. It undoubtedly is true, as claimed by the appellant, that the surrogate seems to have had an exaggerated idea in regard to the force of his adjudications upon questions of fact, where he says:

“After having ascertained the fact, his finding upon a conflict of evidence is, in my judgment, equivalent to the finding of a jury, and must settle forever, in all courts, the question of fact involved. If he errs in the application of the law, the appellate co'irt will correct his mistake. But they are powerless, as they should be in the proper administration of human affairs. to inquire into the fact which he or a jury has determined, I think, for all time."

In the enunciation of this proposition, the surrogate seems to have forgotten the provisions of the Code which make the general term a court of original jurisdiction upon appeals in these proceedings; and they may take additional evidence, and must determine questions of fact as they think the preponderance of evidence requires. The powers of the court upon appeal from the surrogate on the probate of a will are entirely different from those upen appeal from the verdict of a jury; and questions of fact upon conflicting evidence are finally determined, not by the surrogate, but by the general term. Bearing in mind this responsibility upon the part of the general term, we not only see no reason to differ from the conclusions arrived at by the surrogate upon the questions of fact, but, as already intimated, we do not see how, under the evidence, he could have reached any other result. The decree should be affirmed, with costs. All concur.

(75 Hun, 578.)


Where plaintiff is injured by a sliver flying from a punch when it is struck with a sledge, the fact that the punch was greatly battered by hammering does not raise a presumption of ragligence, since it could not be said that a blow of a heavy sledge would not cause a sliver to fly from a punch in good order.

Action by Michael Mulligan against John D. Crimmins to recover damages for injuries sustained by plaintiff while in defendant's employ as a laborer on the Broadway cable road. Plaintiff, whose labors were directed by defendant's assistant foreman, was directed to take up an old pickaxe, broken off at both ends, one of which was much battered by hammering, and hold it upon a spike. The foreman then struck the axe with a heavy hammer, to drive home the spike. A sliver broken off the battered end of the pickaxe by one of his blows flew into the plaintiff's eye, and destroyed it. A nonsuit was ordered at circuit, and plaintiff's exceptions were ordered to be heard at general term in the first instance. Judgment for defendant.

Argued before DYKMAN and PRATT, JJ.
Henry A. Monfort, for plaintiff.
Chas. C. Nadal, for defendant.

PRATT, J. There are cases where the accident raises the presumption of negligence, but we do not think the present such a one. We are not able to say that a spicula would not be dislodged from a chisel by the blow of a heavy sledge when the chisel was in good order. There was no proof that the condition of the chisel, before the blow was struck, was a dangerous one; still less, that a reasonable examination would have disclosed danger. We are therefore of opinion that plaintiff failed to prove negligence on the part of defendant. Judgment for defendant.


(Supreme Court, General Term, Third Department. February 13, 1894.)


Defendant offered, in writing, to rent mares of ope D. at a certain price. D. replied that he had none at that price, but named plaintiff as one who had, and he showed defendant's communication to plaintiff. He also advised defendant that he had made arrangements for him. There upon defendant wrote to D., referring to the mares "you have rented for me." Held a sufficient memorandum of a contract with plaintiff to charge defendant under the statute of frauds.

Appeal from special term, St. Lawrence county.

Action by Cornelius A. Barnett against Augustus L. McCrea. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The opinion of Mr. Justice RUSSELL at special term is as follows: This action is brought to recover for the use of a mare bred to a stallion selected by the defendant, and for the keeping of the colt after it became four months old. The agreement was plainly not to be performed in a year, and was therefore void by the statute of frauds, unless a writing properly subscribed was made, taking the case out of the statute. The negotiations were begun by Mr. McCrea in the nature of a proposition in writing by letter, dated April 6, 1891, sent to Jeremiah Donovan, offering to furnish a stallion free, and pay $75 for the colts from each mare when they were three months old; Donovan to keep the colts until four months old if McCrea wished. He names the stallion Elial G. as the one to breed the mares to, and says that he has made arrangements with the proprietor of that stallion for the service. Donovan cannot write, but through an amanuensis advised McCrea that he had no mares to rent at that price, but mentioned the plaintiff and one other as having mares, and showed the communication of Mr. McCrea to the plaintiff. He also advised McCrea, in that or another letter, that he had made arrangements for breed. ing two mares, and gave such terms and details as enabled the defendant, McCrea, on the 26th of May, 1891, to write to Donovan the following letter:

"Jeremiah Donovan-Dear Sir: Breed the 2 mares you have rented for me at $75.00 each to Elial G., and your mare to Van Valkenburg's horse by Pancoast. I will pay $100 for use of your mare and service. Van understands I made arrangement for several mares. "Yours, truly,

A. L. McCrea, Jr." In pursuance of this letter, plaintiff's mare was bred to Elial G. at a cost of $25, and a consequent lien upon the mare for 'hat sum. A colt was foaled from such service, and has been since kept by the plaintiff. No testimony was given on the part of the defense, and the only point relied upon is the want of a proper writing subscribed by the party to be charged. The letter of May 26, 1891, furnishes ample evidence that Donovan had made an agreement with Barnett for the use of the mare, which, though not in writing, was communicated to the defendant, McCrea, by a letter of Donovan duly signed in his behalf. This furnished a perfect memorandum of the terms of the contract, was properly subscribed by Donovan for MCCrea, and was supplemented by McCrea's answer and letter accepting and acknowledging the contract. The only object of the statute of frauds is to prevent a reliance upon oral contracts in certain cases, and to obtain satisfactory written evidence, by some memorandum subscribed by the party to be charged, or his agent, of the terms of the contract itself. The statute itself does not require the contract to be signed, but provides that a note or memorandum of it suffices for the purpose upon which the statute itself is based. Following this undoubted object, it has been frequently held that letters signed by a party's agent, and sent to the principal, are ample evidence to satisfy the purpose of the statute; and there is no reason why this should not be so. The statute of frauds is not a trap, but a wholesome law for the production of written evidence, and is satisfied if that evidence exists. The whole contract may be evidenced by such a writing as a letter by an agent to a principal; or, where there are partial writings, exhibiting portions of the terms of the contract, such a letter may furnish the additional information neccesary to complete the contract, and to charge the party sued upon such an obligation. In Peabody y. Speyers, 56 N. Y. 230, our court of appeals held that a letter written by the agent to his principal, even though the principal was undisclosed as a principal to the plaintiff, of which the plaintiff had no knowledge, was sufficient to perfect the memorandum of sale. In Welford v. Beazely, 3 Atk. 503, Lord Chancellor Hardwicke held that a letter to a man's own agent has been deemed a signing, within the statute, even though the party never intended to bind himself by it. This is approved by Sugden in his work on Vendors, marg. p. 129. See, also, Fowle v. Freeman, 9 Ves. 3.31, 355; Story; Eq. Jur. 8 755–757; Jervis v. Smith, 1 Hoff. Ch. 470; Williams v. Bacon, 2 Gray, 391; Gale v. Nixon, 6 Cow. 445. Within the principle of these authorities, the letters of Donovan and McCrea afforded ample evidence of the contract made. Viewing Donovan either as an agent of McCrea or as the mutual source of method of communication to give information between the parties, a letter signed for him, with the communications of McCrea, justify the assertion that a note or memorandum of the contract with Barnett was signed by the party to be charged, or his agent, and renders a judgment for the plaintiff necessary. The case of Haydock v. Stow, 40 N. Y. 363, does not militate against this result. The paper referred to in that case was not designed as a proposal, was not a narration of what had been done, and, therefore, neither as a proposition to be acted upon, nor a memorandum of what had been done, did it suffice. I have taken some pains to examine authorities not referred to by either counsel to see if my impressions produced upon the trial were incorrect, but such examination has only tended to confirm them. Judgment for plaintiff for the rental price, the service fee of the stallion, and the cost of keeping the colt.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Cleason & Johnson, (A. T. Johnson, of counsel,) for appellant.
Theo. H. Swift, for respondent.

MAYHAM, P.J. Upon the facts found by the learned trial judge, which seem to be supported by the evidence, we think he reached a correct conclusion, and that the judgment should be affirmed upon the opinion at special term. Judgment affirmed, with costs. All concur.

PEOPLE ex rel. DREICER v. OUDERKIRK et al., Assessors. (Supreme Court, General Term, Third Department. February 13, 1894.)


Under Code Civ. Proc. $ 2005, requiring a person on whom à writ of certiorari is served to make a return on tender of the fees allowed by law, a return will not be required until such fees are paid, where it is necessary to embrace in the return copies of papers on file in a town clerk's office.

Appeal from special term.

Certiorari by Jacob Dreicer to review the proceedings of Isaac Y. Ouderkirk and others, as assessors. From an order requiring de

fendants to make and file a return to the writ without payment or tender of their fees, defendants appeal. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Edgar T. Brackett, for appellants.
A. W. Shepherd, for respondent.

MAYHAM, P. J. The assessment roll which the relator, by his certiorari, desired to bring up for review, was, at the time of the granting of the writ, filed, pursuant to law, in the town clerk's office, from which the defendants could not legally withdraw the same. But they could obey the writ by returning sworn or certified copies thereof. People v. Kromer, 5 Misc. Rep. 54, 25 N. Y. Supp. 48. Such a return would, however, impose upon the defendants the labor and expense of making or procuring copies of the assessment roll. Section 2005 of the Code of Civil Procedure requires a person upon whom a writ of certiorari is served, upon payment or tender of the fees allowed by law, to make a return. The tender or payment of fees for copies of papers required to be returned seems to be a condition precedent, which must be complied with before a party can be compelled by mandamus to make such return. This rule applies to public bodies or offices as well as individuals. Accordingly, this court held that a board of supervisors, whose acts in refusing to allow a sheriff's bill were sought to be reviewed on certiorari, could not be compelled to return their action, and the bill presented to them for audit, until the fees for making such return were paid. People v. Sup'rs of Fulton Co., 64 Hun, 375, 19 N. Y. Supp. 773. This case is, in principle, like the case at bar, and we think decisive of it. The order must be reversed, with $10 costs and printing disbursements. All concur.

CRONIN v. CROOKS. (Supreme Court, General Term, Third Department. February 13, 1894.) ATTACHMENT-ALTERNATIVE STATEMENT OF GROUNDS.

A warrant of attachment which recites disjunctively two grounds, either of which, standing alone, would be sufficient, is not a compliance with Code Civ. Proc. $ 641, which provides that the warrant must "recite the ground of the attachment." Appeal from special term, Rensselaer county.

Action by John S. Cronin against Johanna C. Crooks. From an order vacating a warrant of attachment, and directing the delivery of the attached property to a person not a party to the action, plain. tiff appeals. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
T. S. Fagan, (J. K. Long, of counsel,) for appellant.
John P. Curley, (Frank S. Black, of counsel,) for respondent.

MAYHAM, P. J. In this case a judge of this court, at chambers, granted a warrant of attachment, on an ex parte application of the

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