County Court, Onondaga County, April, 1896. [Vol. 16. The second account of April 1, possibly made to correct the first account of the same date, is not correct, or else the account of April 8, is in error, for the "Deff." account of $33.95 is entered under debits of later date as $28.95. The account of April 22, 1895, had apparently no connection with the prior week, or the week succeeding, and the deficiency of April 15 is jumped to April 29, not appearing under April 22. On May 20, for the first time since April 1, there appears an entry opposite the credit "Balance due company," and on May 29 the last entry opposite this item appears. On July 1 the credit of arrears by members for the first time appears, and has nothing to do with advance payments by members; for persons that paid in advance cannot be in arrears. It is not explained why this credit has not appeared before. I have examined this weekly statement somewhat in detail, for the purpose of ascertaining the situation of the parties at the time these statements were rendered, to ascertain whether, within the principles applicable thereto, these statements constitute an account stated. I think they do not. An account stated is in substance a new agreement. It has all the elements of an original contract. There must be a meeting of minds. There must be a consideration. The latter may arise from a relinquishment of further or other demands, and from an implied promise on one side to pay, and on the other side to accept, the amount agreed upon. There must, however, be a meeting of minds. Mr. Justice Pratt, in Lockwood v. Thorne, 18 N. Y. 288, says: "The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated." See, also, the opinion of Mr. Justice Earl, in the case of Stenton v. Jerome, 54 N. Y. 484, in which he uses the following language: "But what is an account stated? It takes two parties to make one the debtor and creditor. There must be a mutual agreement between them as to the allowance and disallowance of the respective claims. * * * Their minds must meet as in making other agreements." It is true that this agreement may be inferred from the circumstances of each case, but can it be said here that the defendant Schaefer's mind met the mind of the plaintiff upon the Misc.) County Court, Onondaga County, April, 1896. allowance of each item claimed or upon the amount of the account of June 24, assuming that after a careful study of these statements on that day, as a matter of bookkeeping, there was a balance due to the plaintiff of $29.10? Of course it cannot be claimed that the last report of July 1, showing a balance of $34.05, has any element of an account stated, not being participated in or assented to by Schaefer. Here are accounts in which the terms used are ambiguous; which contain entries under different accounts of the same debits or credits under different names; where some errors appear; entries allowed in the account of new debits or credits for which no reason is given why they did not appear earlier; where the balance claimed to be due the company does not appear opposite the printed form expressly for that purpose, but has to be spelled, figured out under some other abbreviated entry. The fact that the defendant Schaefer participated in making these reports, and made no specific explanation as to his understanding or misunderstanding, were matters for the consideration of the jury, as was also the intelligence of the defendant Schaefer, and the probability arising therefrom as to his understanding these accounts, and the fact that the figures were made upon the company's blanks and by its agent. The effect of these statements as admissions were for the jury, but cannot be said, as matters of law, to be conclusive upon the defendant. Lockwood v. Thorne, 18 N. Y. 292, opinion by Selden, J. See, also, opinion by Pratt, J., p. 280. Again, the objection that this account is an account stated, and can only be impeached for fraud or mistake, which must be specifically pointed out, was waived by the plaintiff's failure to object upon the ground it was unauthorized by the pleadings. Liscomb v. Agate, 67 Hun, 390. The defendant Schaefer was asked upon his direct-examination: "Q. Mr. Schaefer, did you ever receive any money on (from) any policyholder and not turn it over to the Metropolitan Insurance Company? Objected to, incompetent, immaterial, not the best evidence and conclusion of the witness. A. I turned in every cent I ever collected. Q. Did you ever collect a cent on the policies which you didn't turn over to the company A. I turned over to the company every cent." It is claimed by the plaintiff that the admission of this evidence was error, and that no evidence was introduced by the defendant justifying the submis County Court. Onondaga County, April, 1896 [Vol. 16 sion of the case to the jury. An opinion which is an induction from certain given facts is admissible. 1 Wharton's Evidence, section 15, in which the following illustration is given: "I saw A. shoot B. is an induction, the witness not seeing the bullet strike B., but inferring that it did, from the report of the pistol and the wound," and also cites the case of Sloan v. Railroad Co., 45 N. Y.. 125; in which case the plaintiff was injured in a railway collision. Her attendant was asked upon the trial whether she was able to help herself, whether she required assistance. The witness was allowed to answer that the plaintiff was not able to help herself, for the reason that the conclusion was one which was in itself an abbreviation of the facts. * * * Again, at section 510, the same author says: "An inference necessarily involving certain facts may be stated without the facts. * * * Where it may be sustained upon several distinct phrases of facts, the facts must be stated. In other words, when the opinion is the mere shorthand rendering of the facts, then the opinion can be given subject to cross-examination as to the facts upon which it is based." The statement of the witness that he turned over to the company every cent is not only admissible within the foregoing as neces sarily involving the facts, but is itself a fact, that all the money that he collected from the policy holders or the persons insured had been turned over by him to the company. The strength or weakness of this general statement, and how far it was affected by the cross-examination, were matters solely for the jury. The answer of the witness is none the less a fact because it involves a number of transactions. For instance, A. makes deposits in the bank for B. upon a hundred different occasions. A. is sued for the alleged conversion of a portion of the money so received. He certainly would be allowed to answer that he always (upon each occasion) deposited the entire amounts give him for that purpose, subject of course to cross-examination as to each transac tion. The witness would not be permitted to say he paid the company every cent due, any more than upon a trial for murder a witness would be allowed to say that the defendant killed the deceased, but he would be allowed to describe the transaction, the situation, the acts, and the fact of the decedent's death. Such evidence, i. e., of payment, is a conclusion resulting from many facts. The agreement, or any modification thereof, calls for an interpretation of the contract as well as the fact of payment itself, Misc.] County Court, Onondaga County, April, 1856. but that the witness turned over every cent that he collected is distinctively a fact, one of a chain of facts from which the conclusion of his indebtedness may be disproved or established, as the case may be. The strength or weakness of this evidence is not a matter of comment at this time. It was solely for the jury. Where there is conflicting evidence it must be submitted to the jury, notwithstanding that the preponderance of the evidence is decidedly in favor of one of the parties. Robbins v. Dillaye, 33 Barb. 78; Ayrault v. Chamberlain, 33 id. 229; Gates v. Brower, 9 N.Y. 205; Gardner v. McEwen, 19 id. 123. It will be intended that a verdict settles in favor of the prevailing party every question of fact litigated upon the trial. Wolf v. Goodhue Insurance Company, 43 Barb. 400. The plaintiff cites the case of Owiter v. Metropolitan Life Insurance Company, 4. Misc. Rep. 543; and 24 N. Y. Supp. 731 (Commor Pleas), an action brought by an agent against the company to recover a sum of money deposited as security under a contract precisely similar to the contract in this case. The defendant alleged and proved a counterclaim, although the plaintiff testified with reference to one contract (the Brooklyn contract), "That everything was settled and that he didn't owe the defendant one cent and that he was all clear." It was held that the trial justice should have charged that the plaintiff was bound by the statements of the defendant's officers. The defendant in that case based its counterclaim upon the condition as to lapsed policies under the agreement as to a special salary, to which no claim is made in this case. And again, in that case, the evidence given by the defendant as to the amount of plaintiff's indebtedness under one contract (the New York contract), was uncontradicted. For these reasons I think that case is not in point. Judgment affirmed, with costs. 80 Supreme Court, April, 1896. [Vol. 16. RUZELLA FULLER, Plaintiff, v. THOMAS REDDING, Defendant. (Supreme Court, Otsego Special Term, April, 1896.) 1. Villages — Ordinances imposing only a penalty for violation cannot be enforced by criminal proceedings. A village ordinance which provides only for a penalty for a violation contemplates only a civil action to recover such penalty, and does not authorize a criminal prosecution. The provision of the General Village Act giving a police constable the right to arrest a person while in the act of violating a village ordinance does not authorize an arrest upon a warrant issued long after the violation. 3. Criminal law - Information for violation of village ordinance. An information of a violation of a village ordinance which does not aver that the act was willfully and unlawfully done is insufficient to authorize the granting of a warrant. 4. False imprisonment - Motive. In actions for false imprisonment the motive of the defendant is a proper subject of investigation to enable the jury to pass upon the question of exemplary damages. The right to exemplary damages cannot be denied in such a case on the ground that plaintiff had previously committed an act for which she would be liable to a village in a civil action. MOTION by defendant, upon the minutes of the judge, to set aside the verdict and for a new trial upon exceptions and because the verdict was for excessive damages, and otherwise contrary to the evidence and to law. Gibbs & Wilber, for defendant. Tilly Blakely, for plaintiff. MATTICE, J. The jury rendered verdict of $600 in favor of the plaintiff for being falsely imprisoned and unlawfully restrained of her liberty by the defendant. The jury was directed to render a verdict for plaintiff and were required to assess her damages. |