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Decided Dec. 3, 1883.

Upon a motion under the Code for discovery and inspection of writings, the chancery rule as to a bill of discovery still obtains, viz., that the applicant may have a discovery of matters necessary to maintain his own title, but not of matters going only to the title of his adversary, and it is only where he is entitled to a discovery of deeds, etc., for the purpose of establishing his own case that his right is not affected by the circumstance that the same deeds are also evidence of his adversary's title.

Appeal from order denying defendant's motion, after issue joined, for discovery and inspection of writings.

establishing his own case that his right to such discovery was held to be not affected by the circumstance that the same deeds or documents were also evidence of the defendant's case. These principles have not been abrogated or changed by the Code of Civ. Proc.

Order affirmed, with costs.

W. B. Winterton, for applt. Henry Brewster, for respt. Held, That the petition was properly denied. Upon an application for a bill of discovery the rule in chancery was that the plaintiff might have a discovery of matters necessary to maintain his own title, as for example deeds under which he claimed. But he was not entitled to have a discovery of the title of his adversary from whom he sought the discovery and whose title he denied. It was only when the plaintiff was entitled to a discovery of deeds or documents for the purpose of

Vol. 18.-No. 13a.

Opinion by Freedman, J.; Sedgwick, Ch. J., and O'Gorman, J., concur.



Action for conversion. The prayer of defendant's petition showed that all he wanted was to discover and inspect conveyances and instruments in writing which he could not specify, which he did not actually know to exist, but

Decided Dec. 1883.

which he suspected plaintiff might A party who resides in the state cannot be

produce on the trial for the purpose of establishing its title to. or its interest in, or right to the possession of the property mentioned in the amended complaint.

required to attend for examination before trial in any county other than that in which he resides or where he has an office for the regular transaction of business in person and there is no exception in favor of counties in which the place of trial is laid.

Andre Gustaf, applt., v. The American Steamship Company, respt.

Appeal from an order requiring plaintiff to appear and be examined in a county other than the county where he resides. The plaintiff resides in the city and county of New York, and has no office in Kings county. The order requires him to appear in Kings county to be examined.

J. Ed. Swanstrom, for applt. E. S. Hubbe, for respt. Held, Error. By 886, Code Civ. Pro., where a person to be examined before trial resides in the state he shall not be required to attend in any county other than that in which he resides or where

he has an office for the regular transaction of business in person. The fact that the place of trial is designated to be Kings county does not enlarge the power to require a party to go out of the county of his residence. The section makes no exception in favor of counties in which the place of trial is placed. An examination before trial rests upon Article 1 of title 3 of the Code and that Article restricts the place of examination to the county in which a person resides in all cases.

Held, That in construing the provision of § 13, Art. 6 of the Constitution, it is not to be restricted to the immediate context, 45 N. Y., 812; 78 N. Y., 403, and that by chapter 86, Laws of 1870, we have contemporary legislative construction to this effect; that it is to be given a broad and comprehensive meaning. That whether this provis ion applies to justices of the peace, depends upon the fact whether such officers are "justices or judges of any court" within the meaning of that term as used in the constitution. That the office of justice of the peace has existed since the formation of the State Government, and "courts of justices of the peace" were established by chapter The People ex. rel. Alfred Law- 236, Laws of 1824, and it was prorence v. Elias Mann et al. vided that "every such justice is hereby authorized to hold a court for the trial of all actions *** and is hereby vested with all such powers for purposes aforesaid as is usual in courts of record in this State" that this provision was embodied in the revised statutes of 1830, the code of 1849, and was substantially reenacted in Code of Civil Procedure, section 3; that the statutes of the State at the time of the adoption of the Constitution provided for "special justices courts," such as the "justices courts of Albany and Hudson;" that a "justices court," or a "court of justices of the peace" therefore existed as one of the courts of the State at the time

Order reversed.

Opinion by Barnard, P. J.; Dykman, J., concurs; Pratt, J., not sitting.


Decided Jan., 1884.

The provision of § 13, Art. 6 of the Constitution, limiting the term of office of justices and judges, includes and applies to justices of the peace.

Motion upon temporary writ granted by Justice Dykman for absolute writ prohibiting respondent Mann acting as justice of the peace in Westchester County in suit against relator on the ground that Mann is over seventy years of age.

day of December next after he
shall be seventy years of age.'

W. H. H. Ely for relator.
S. C. Millard for respts.

Section thirteen, article VI of the constitution provides that "no person shall hold the office of justice or judge of any court longer than until and including the last

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agents therefrom cannot be maintained by one who shows neither title nor possession at the time of his entry. If plaintiff or his agents have any remedy it is one at law.

After a

Plaintiffs claimed to own certain lands and built a fence along what they deemed to be one of the boundaries, and put a man and a boy in occupation of a small house on the premises. few weeks, as soon as defendants discovered what had been done, they tore down the fence and the house took possession and maintained it with a force of men too large to resist. Plaintiffs then brought this action, alleging both possession and title and asking the aid of equity to enjoin and restrain defendants from further interference and claiming damages for the trespass. Plaintiffs failed to show either title or possession at the time of their entry. The complaint was dismissed.

Samuel Hand, for applts. John E. Parsons, for respts. Held, No error; that plaintiffs having failed to show either title or possession at the time of their entry became merely trespassers wrongfully intruding through their agents on the possession of the defendants. If plaintiffs or the persons ejected have any right of action for the forcible removal the remedy is at law.

Judgment of General Term, affirming judgment dismissing complaint, affirmed.

Opinion by Finch, J. All concur; Earl, J., in result.

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This action was brought by plaintiff, who was a brakeman in defendant's employ, to recover damages for injuries received by the fall of a bridge on defendant's road at Ashtabula on Dec. 29, 1876. The bridge was built of iron and spanned a gulf leading inland from the lake and growing narrower as it approached the point of crossing. It was a deck bridge, constructed on the Howe Trap plan, which is applied in building wooden bridges, this being the only bridge of that plan built wholly of iron. It was constructed by the C. P. & A. RR. Co., defendant's predecessor. The superstructure was planned by S., its president, who appears to have had a large experience in designing and constructing railroad bridges. S. merely "directed the method of making the plans" and of carrying them out in "general terms through agents and practical employees." The evidence showed that when the bridge was purchased by defendant it was unsafe and dangerous by reason of defects in its original plan and

construction, which defects were obvious to the eye of a skilled inspector and easily and surely ascertainable by a structural analysis determining its factor of safety.

James F. Gluck, for applt.
Adelbert Moot, for respt.

Held, That it was negligence on the part of defendant to continue the use of the bridge in the face of such defects without ascertaining their effect upon its strength and capacity.

Where a company does not know the safety of the plan of a bridge or the prudence of the construction because it has purchased it completed and in use, and knows nothing of the skill or want of skill of the builder, an inspection which takes no heed of that inquiry, when defects are obvious and lack of safety is indicated and may be easily ascertained, is not sufficient. The employer must exercise reasonable care in fur nishing the servant with the means and implements of his service. The test of actual previous use might justify the continuauce of that use until a competent inspection could reasonably be made, but would not justify a neglect when it was made to observe and remedy obvious defects and elements of danger because existing in the original plan, and an omission to learn by well understood process whether in view of its apparent defects it had the ordinary surplus strength.

Whether built by it or purchased, a railroad company must take reasonable care to know or

ascertain the safety of the design and construction of its bridges, and is charged with knowledge of defects which a competent examination would have disclosed.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Finch, J. All concur, except Andrews, J., taking no part.


N. Y. COURT OF APPEALS. Sherwood, applt., v. Hauser, respt.

tablished that defendant used language clearly importing a promise to pay $500 for services on the sale of a certain piece of property; also that defendant stated he would allow plaintiff four-fifths of his cash expenses and a reasonable compensation for his services, and that plaintiff replied that he would undertake the work on the terms proposed, and that afterwards when plaintiff was discouraged and wanted to quit defendant would not consent to it and wanted him to continue, and upon defendant's again agreeing that he should have four-fifths of his expenses he consented to go on. That subsequently, in New York, plaintiff gave defendant a detailed account of his disbursements and the figures representing four-fifths and defendant promised to adjust the account and pay it on his return to Montana. This evidence was to some extent corroborated and has not been squarely contradicted. and the facts as sworn to by plain

Decided Nov. 20, 1883.

In an action for services plaintiff testified that

defendant agreed to pay him a proportion

ate share of his expenses and a reasonable compensation for services in selling certain lands, and upon his becoming discouraged urged him to proceed and repeated his promise; that plaintiff gave defendant a detailed account of his expenses, which the latter promised to pay. The evidence was corroborated to some extent and was not squarely contradicted. Held, That a find-tiff were not, under the circuming for plaintiff was not manifestly against the evidence and should stand.

The fact that there are discrepancies between the sum claimed in the summons and the amounts stated in a bill of particulars is not conclusive against plaintiff. The several amounts stated are admissions of plaintiff which can be explained, and if the ref eree allows a less sum than the largest

amount claimed it does not follow that he erred or that plaintiff was impeached.

This action was brought to recover for services rendered and expenses incurred by plaintiff as broker for defendant in making and attempting to make sales of mining rights and interests in Montana. Plaintiff's evidence es

stances disclosed, improbable. The referee found for the plaintiff and the judgment entered on his report was reversed at General Term.

Alfred C. Chapin, for applt. William Fullerton and Henry S. Van Duzer, for respt.

Held, That as the conclusion of the referee cannot be said to be manifestly against or contrary to the evidence, it should stand. 66 N. Y., 250; 36 id., 340; 55 id., 256.

There were discrepancies between the sum claimed in the summons and the several bills of particulars

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