wife, and to make a certain provision for Burnett, who for years had been a trusted clerk and superintendent. The other matters were of minor importance, and it is reasonable to suppose that the clauses referring to the erection of a monument on his burial plat, when one already existed, was a blunder of the attorney in not properly appreciating the instructions of the decedent, and that in the haste of reading the paper decedent did not understand the real purport of the clauses. And while it is probably true that there were times when the decedent's mind wandered, and he was incoherent in speech, as testified by Dr. Bridden, his conclusion of decedent's want of mental capacity can hardly weigh against acts and conversations showing soundness of mind at or about that time. The only matter left for consideration is the allegation of undue influence; and the principal evidence adduced to support it is the declarations of Mrs. Buckley, which were admitted without objection. Mrs. Tracy states that, after the arrival of the decedent and Mrs. Buckley at her house in Marlborough, she took the witness into her kitchen, and told her that the decedent had made a will leaving everything to her, and that she would not let him leave New York until he had made a will to suit her; that he had made a will two years before; and that she was going to New York to destroy it. Mr. Tracy testified substantially to the same declarations, but from the language he uses it is doubtful whether he does not speak from hearsay only. He says: "When she first came to our house, she went right into the kitchen, and told my wife that he had made a will," etc. At all events, there is a suspicious identity in the language used by both Tracy and his wife. This testimony should have been excluded, and no doubt would have been had it been objected to by Mrs. Buckley's counsel, she not being the sole legatee. But Mrs. Buckley denied that she had made any such statement. Still it is not unreasonable to suppose that she had expressed a wish to have a will made to provide for her. Once, when the witness Reardon was visiting this city from Boston, she asked him to request the decedent to provide for her, so that she would not be left in a destitute condition, and the witness did speak to the decedent about the matter, and the reply was an ejaculation, “Bah!" the meaning of which was not explained. It is a fair inference, also, that she solicited the decedent to become her husband by a ceremonial marriage. It is natural that she should have done so. Father Everett testifies that she called upon him, and made the arrangement. But influence exerted in either case cannot be regarded as "undue," even if the fact be conceded that the decedent was suffering from a chronic illness, accompanied with physical weakness, and which, in a few weeks, ended in his death, especially in view of the fact that the relation of husband and wife existed, so far as repute and publications were concerned, between them for nearly 10 years. Had the decedent disinherited children, or even brothers and sisters, with whom he had been upon terms of intimacy and affection, there might be greater doubt of his mental condition. But there is no proof of the existence of any previous will except the declarations of Mrs. Buckley, and the fact stated by the witness Reardon, who testified that two years previous to his death decedent told him that he had made his will, and had appointed Reardon one of the executors. It may be that, if such an instrument was executed, the contestant was provided for in it; and, if so, it may be that her failure to come to New York at decedent's request to make a home for him, as testified to by her husband, caused him to execute the will in question, and make no provision in it for her. Some of the facts in the case proven are of a character to suggest doubts; but on the whole case, in view of the relations of all the parties concerned, the preponderance of evidence is that the instrument was the free and voluntary act of a man having the mental capacity to make a will, and that the requirements of the statute were complied with in its execution. A decree may be submitted denying the petition for the revocation of probate. RUBENS et al. v. LUDGATE HILL S. S. Co., Limited. (Supreme Court, General Term, First Department. June 19, 1888.) CARRIERS OF GOODS-ACTIONS AGAINST SUFFICIENCY OF COMPLAINT. Under Code Civil Proc. N. Y. § 481, requiring the complaint to contain a plain and concise statement of the facts constituting each cause of action, a complaint against a steam-ship company for negligence in the transportation of goods, which avers that defendant undertook to transport certain fur from and to points named, being paid therefor, and that it "so negligently and carelessly misbehaved itself in transporting the fur that the plaintiff, by reason thereof, sustained damage," is insufficient, and a motion to make the same more definite and certain should be granted. Appeal from special term, New York county; MORGAN J. O'BRIEN, Justice. Action by Morris Rubens and Bernhard Rubens against the Ludgate Hill Steam-Ship Company, Limited, to recover damages for negligence in the transportation of certain furs. From an order granting motion to make the complaint more definite and certain plaintiff appealed. Argued before BRADY, P. J., and DANIELS and BARTLETT, JJ. BRADY, J. This is an action for relief. The defendants are alleged to be common carriers for hire between London, in England, and this city. The allegation is that on the 22d of June, 1887, the defendant undertook to transport to New York for hire, by its vessel called the "Ludgate Hill," 90 cases of furs, the property of the plaintiffs, and to deliver the same safely and in good order to the plaintiffs at the city of New York, for which service the defendant was paid, and then that "the defendant so negligently and carelessly misbehaved itself in transporting the fur that the plaintiff, by reason thereof, sustained damage in the amount stated. The defendant insists that this is a very indefinite and uncertain statement of the cause of action, and it seems to be so. It is a natural logical sequence that, if defendant carelessly and negligently misbehaved itself, it behaved itself, and, it must be assumed, well behaved itself. This must be the result. This view, which is not intended to be hypercritical, is only given for the purpose of demonstrating the uncertain and indefinite allegation of the cause of injury. It is not necessary to consider the authorities upon a motion of this character, which create, when put in juxtaposition, some confusion, involving, to some extent, rules applicable to bills of particulars, for the reason, if no other existed, that the Code requires, by section 481, a plain and concise statement of facts constituting each cause of action, without unnecessary repetition. And the court of appeals, in Olcott v. Carroll, 39 N. Y. 436, said, in reference to the old Code, the provisions in which are similar to those contained in the Code of Civil Procedure: "When the allegations in a pleading are so indefinite and uncertain that the express nature of the charge is not apparent, the court may require the pleading to be made definite and certain by amendment." Here the plaintiffs' right of action depends on the alleged negligence of the defendant; and, giving the broadest and most liberal interpretation to the allegations in the complaint on that subject, there is no suggestion of any fact showing the character of the negligence, whether by improper stowage or careless handling, or negligent exposure, or of any one of the numerous acts, omissions, and circumstances by which negligence would be made apparent. The statement is that the goods were shipped, and so negligently transported as to be damaged. This is neither a plain nor concise statement of facts, and the precise nature of the charge is not apparent. Whether the defendant was guilty of negligence or carelessness is a conclusion of law, dependent upon facts which must be proved. There should be at least some general statement of the cause of the damage, beyond the mere statement of neglect and carelessness. Some confusion has crept into the consideration of this question by the supposed effect upon it of the case of Tilton v. Beecher, 59 Ñ. Y. 176. The learned justice, in writing the opinion in that case, referring to section 160 of the old Code, the provisions of which were similar to those of section 546 of our present Code, said: "It will be observed that it is only where the precise nature of the charge is not apparent that an application will be made under this section. It enables a party to obtain a definite statement, in the pleadings, of the nature of the charge intended to be made against him, but not of the particulars or circumstances of the time and place. For that purpose a different proceeding was pointed out, and from that there was no uncertainty and indefiniteness in respect to the nature of the charge made against the defendant." Indeed, an examination of that case shows that the charge made was quite definite and certain. That case, and cases kindred to it, establish the proposition that, in an action of tort or for relief, if the charge made be definite and certain, an application for a bill of particulars may be granted. But it in nowise limits, controls, or affects the statutory right secured by the provisions of the Code to have a complaint made so definite and certain that the nature of the charge shall be stated. The object is to advise the defendant of the claim with such definiteness as to enable him to prepare his defense. This would be required in all other class of cases, and should be here. For these reasons the order appealed from is reversed, and the motion granted, with costs. DANIELS, J., concurs. BARTLETT, J., concurs in the result. RICHARDS v. DERRICK et al. (Supreme Court, General Term, Fourth Department. July, 1888.) 1. WITNESS-EXAMINATION. In an action for work and labor, plaintiff testified he was to receive $2.75 per day. Defendant testified that he was to receive $2.50. On cross-examination, defendant was asked, "Have you paid any other men who worked on the job any more than $2.50 per day?" To which he answered, "The last three weeks St. Clair was paid $2.75 per day." Held proper cross-examination, as testing the sincerity of the witness in respect to the question whether the understanding between the parties was $2.50 per day.1 2 SAME-EXAMINATION-CONCLUSIONS. Where there was a dispute, in such case, as to what wages plaintiff was to receive, the court properly refused to allow defendant to be asked: "Was plaintiff paid in full, for all the time he worked, at the rate of $2.50 per day?" the question calling for a conclusion, the witness having just testified that he did not know how much money had been paid plaintiff. 8. APPEAL-REVIEW-SUFFICIENCY OF EVIDENCE. In such case, plaintiff having testified that he was to receive a certain sum per day, and defendant testified to another sum, a finding for plaintiff will not be disturbed on appeal. Appeal from Onondaga county court. Action brought by William Richards in justice's court against John Derrick and Nellie Derrick. Plaintiff had judgment, and defendants appealed to the county court, which reversed the judgment as to Nellie Derrick, and affirmed it as to John Derrick, who appeals to the general term. Argued before HARDIN, P. J., and FOLLETT and MARTIN, JJ. H. E. Miller, for appellants. Thomas Hogan, for respondent. HARDIN, P. J. Upon the trial the plaintiff gave evidence to establish that he was a carpenter, and was employed to and did work upon a house being built for the defendants, and that "he is a first-class carpenter," and that 'Respecting the impeachment of a witness by his own testimony on cross-examination, see McCallan v. Railroad Co., 1 N. Y. Supp. 289, and note. he had worked as carpenter for 38 years; and the plaintiff testified that he "had a conversation with John Derrick, about a week before I went to work for the defendants, in his bar-room. He asked me how much a day I was making. I said $2.75 a day. He said he wanted me to come to work. I went, and worked five weeks and two days full time, ten hours a day; and seven days and three hours, at nine and one-half hours a day. I have received eighty dollars, and there is a balance due me of $26.79." Some other evidence was given tending to show the performance of the services charged by the plaintiff. In the course of the testimony of John Derrick, he says: "Mr. Richards and Mr. Durkin came in on Saturday night. I said to Durkin: What do you pay carpenters?' He said: $2.75 a day.' I next saw Richards at Durkin's house. I said: We are going to start working soon.' I said we were going to commence next Wednesday. He said: You have got three good men. What are you going to pay them?' I said: '$2.50 per day.' He said he would come next Monday morning, and he came. His time was made out next Saturday night, and I paid him for five weeks at fifteen dollars per week. I settled with him every Saturday night. There was nothing said as to how much he was going to get." During the trial before the justice, the plaintiff's theory was that he was to receive $2.75 a day, and the theory of the defendant was that he was to pay $2.50 per day; and there was a conflict in the evidence, and it was for the justice, sitting in the place of a jury, to determine where the truth was,-whether it was in accordance with the theory of the plaintiff, or in accordance with the theory of the defendant. The justice having believed the testimony of the plaintiff, instead of the testimony of the defendant, upon that question of fact, it is not within the province of this court to disturb the finding, inasmuch as we are not able to say that the finding of the justice is against the clear weight of the evidence. Where parties testify upon the issue in which they are respectively interested, it is within the province of the trial court or jury to believe either. Elwood v. Telegraph Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 N. Y. 177; Gildersleeve v. Landon, 73 N. Y. 609; Koehler v. Adler, 78 N. Y. 287, 20 Wkly. Dig. 165, (opinion of BARKER, J., in cases cited;) Carbon-Works v. Schad, 38 Hun, 71; Kinney v. Pudney, 46 How. Pr. 258; Boone v. Kalb, 20 Wkly. Dig. 26. We think there was sufficient evidence to sustain the finding of the justice that the understanding between the parties was that the plaintiff was to receive $2.75 per day. The defendant gave evidence of certain payments made by him in the progress of the work, and evidence tending to show that the payment was made some Saturday nights at the rate of $2.50 per day, or that the defendant paid $15, for six days' work; but the circumstances of those payments are put in dispute somewhat by the testimony given by the plaintiff. When the defendant was put upon the stand, he was asked if the plaintiff was paid in full for all the work at the rate of $2.50 per day, and to that question he made answer, viz., "I do not know how much money I paid him." And he added, "I do not know how many days' work was done." Apparently, the justice allowed the witness to give the facts called for by the question, and apparently intended to exclude the conclusion embraced in it in respect to whether the payment was in full. 2. By the amended return it appears that, when the defendant John Derrick was upon the stand, he was asked: "Was the plaintiff paid in full, for all the time he worked, at the rate of $2.50 per day?" The question was objected to as calling for a conclusion, and the justice sustained the objection. We think no error was committed in that ruling, as we have already seen the witness had already testified that he did not know how much money had been paid to the plaintiff. While it might have been competent to ask the witness how much money was paid to him, and how many days he worked, and the circumstances under which the contract was made, we do not think it was error for the justice to refuse to allow the witness to draw a conclusion upon such facts by stating that he had been "paid in full, for all the time that he had worked, at the rate of $2.50 per day. 3. Upon the cross-examination of John Derrick, he was asked: "Have you paid the other men who have worked on this job any more than $2.50 per day?" This question was objected to as incompetent and immaterial. The objection was overruled. The witness answered: "The last three weeks St. Clair was paid $2.75 per day." By the amended return, it appears the defendant John Derrick was asked the question: "Have you paid the men any more than $2.50 per day?" That was objected to as incompetent and immaterial, and the justice overruled the objection; and the original return shows the witness there answered: "The last three weeks Mr. St. Clair was paid $2.75 per day. I will swear that my wife did not pay St. Clair $2.75 all the time." We think this testimony was properly received upon the cross-examination, with a view of testing the sincerity and stability of the witness Derrick in respect to the question of whether the understanding between the parties was at $2.50 per day or not. 4. It appeared, upon this trial, that a previous action had been brought in a justice's court by the plaintiff against the female defendant, and that the same had been decided in her favor "on the ground of non-joinder of John Derrick as a party defendant." That judgment was not a bar to this action, and it is not important to consider the rulings had upon the trial of this action in respect to the admissibility of the minutes kept by the justice in the former action. Following the requirements of section 3063 of the Code of Civil Procedure, which requires that "the appellate court must render judgment according to the justice of the case, without regard to technical errors which do not affect the merits," we are of the opinion that the county court properly affirmed the judgment against John Derrick, and that we should sustain its decision. Judgment of the county court of Onondaga county affirming the justice's judgment affirmed, with costs. FOLLETT and MARTIN, JJ., concurred. MOHR v. DORSCHEL et al. (Supreme Court, General Term, First Department. June 19, 1888.) APPEAL-TIME OF TAKING-SERVICE Of Judgment. Under Code Civil Proc. N. Y. § 1351, providing that appeals to the general term must be taken within 30 days after service upon the attorney for the appellant of a copy of the judgment appealed from, and a written notice of the entry thereof, a written admission of "due and timely service of a copy of the within judgment and notice of entry" by the attorney for appellant, over his signature, estops appellant from claiming any irregularity in the mode of service, or the contents of the notice. Appeal from special term, New York county; CHARLES DONOHUE, Justice. Action to foreclose a mortgage by Conrad Mohr against John Dorschel and William M. Lyddy, as guardian ad litem for Annie Dorschel. Plaintiff appeals from an order denying his motion to compel defendants to receive and accept notice of appeal to the general term. Argued before VAN BRUNT, P. J., and BARTLETT and MACOMBER, JJ. Hays & Greenbaum, for appellant. Dennis A. Spellissy, for respondent. MACOMBER, J. The appellant's counsel claims, first, that the time for his appeal had not begun to run, because the respondent had not, with a copy of the judgment, served upon him a written notice of the entry thereof, under section 1351 of the Code, and that the respondent did not conform to rule 2 of the general rules of practice, because, in the notice which he served, his office address or place of business was not given. Inspection of the case, however, shows that the appellant is estopped to raise either of these questions. It is v.2N.Y.s.no.1-3 |