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Decided Jan. 25, 1884.

that subject, he had denied his

ability to give any testimony upon A an the possession of goods in which a judgment stated that he could give evidence the possession of goods in which a judgment it. After the trial, however, he was rendered for plaintiffs for the reason that the person from whom defendants upon that point, showing that he purchased said goods, and who was the was authorized to sell the diasell them, will not be ordered on the ground monds, and excused his previous sell them, will not be ordered on the ground denial of his ability to do so on of newly discovered evidence which consists of the testimony of such agent on the ground that he had feared a the question of his authority, such criminal prosecution instituted by agent not having been examined upon plaintiffs if he gave such testithat point upon the trial on account of his having denied his ability, when previously mony.

Upon affidavits stating questioned by defendant's attorney, to give these facts defendants moved for a any testimony concerning it.

new trial npon the ground of In such a case the exercise of due diligence requires that the agent should be examined newly discovered evidence.

Albert A. Abbott, for applts. as a witness on the question of his authority, notwithstanding his previous denial of Charles H. Woodbury, for respts. any knowledge on the subject; and, more- Held, That, inasmuch as the de. over, such new evidence would be the sub

fense was aware of the necessity of ject of so much suspicion as not to justify the direction of a new trial, for, in order to establishing the fact of M.'s aujustify such direction, the evidence must thority to sell the diamonds upon appear to be so far controlling as probably the trial in order to defeat the to produce a different result from that of plaintiff's action, the omission to the trial already had.

interrogate M. upon it was such Appeal from an order denying neglect or laches as to preclude a motion for a new trial on the the success of this application. ground of newly discovered evi- That, if the authority existed at dence.

all, as long as it was denied by This was an action for the recov- plaintiffs, M. was the only person ery of possession of a pair of from whom such proof could be diamond earrings purchased by obtained ; and the exercise of due defendants from

M. as diligence required that he should agent of the plaintiffs. Judg. have been interrogated upon the ment was rendered in favor of subject, even though he had preplaintiffs on the ground that M. viously denied his ability to give was not authorized by plaintiffs to the evidence, for although nnwilsell the diamonds but merely to ling to disclose all that he might exhibit them for the purpose of be able to state in preceding conprocuring a purchaser, such being versations, still when pressed unthe positive testimony of plaintiffs der the solemnity of an oath, if on that subject. Upon the trial of the authority in fact existed, he the action M. was not questioned could not, as an honest witness, by defendant's attorney upon the have concealed the truth. 52 How., extent of his authority, for, upon 325; 13 Hun, 514; 13 Barb., 92. being previously questioned upon That the fact that, after the trial


had been had, M., who had been | Terminer of Albany County, setexamined as a witness in the ting aside and discharging the course of it, declared his ability, grand jury as to defendanis and which he had previously denied, as to them quashing the indictto give further evidence meeting ment found. a controlling point in the litiga- D. Cady Herrick, Dist. Atty. tion upon which evidence had not for applts. been given, very seriously sub- Edward J. Meegan, for respts. jected the statements of M. to sus- Held, The facts and orders in picion, and, together with the posi- this case are the same as in the tive contradictory evidence given People v. Fitzpatrick, decided at on the part of plaintiffs, would the last Sept. General Term. In that probably render his testimony in- case we considered the merits and effectual in the case if a new trial decided that the order was erronshould be ordered, and, conse- eous. Such order was therefore quently, the motion should be de- reversed. Upon that occasion nied for that reason, for to justify counsel on either side desired the the direction of a new trial on the court to pass upon the merits and ground of newly discovered evi- no question was raised as to the dence such evidence must appear validity of the appeal taken by the to be so far controlling as probably People from such order.

That to produce a different result from qnestion was not therefore passed that reached upon the trial already upon. had. 47 Supr. Ct., 285 ; 67 Barb., This appeal by the People arises 359, 361; 42 Barb., 24, 29 ; 2 Hun, upon the same state of facts, but 269.

the defendant now moves to disOrder affirmed.

miss upon the ground that the Opinion by Daniels, J.; Brady, People have no right of appeal in J., concurs.

the present instance.

The only

mode of reviewing a judgment or APPEAL. CRIMINAL PRAC. order in a criminal action is by TICE.

appeal. Code Crim. Pro., $ 515. N. Y. SUPREME COURT. GENERAL No such mode of review ever ex

isted before and so we must look TERM. THIRD DEPT. .

to the Crim. Code for all authority The People, applts., v. John M.

or limitation of authority. By Dempsey et al., respts.

$ 518 the People may appeal to Decided Jan., 1884.

the Supreme Court in two cases,

(1) from a judgment for defendant No appeal can be taken by the People from an order in a criminal case setting aside

on demurrer toindictment, (2) from and discharging the grand jury as to a de

order arresting judgment, fendant and as to him quashing an indict. neither of which cover the present

case. In no other case has the Appeal by the People from an right of the People to appeal to order of the Court of Oyer and the Supreme Court been given.




This court may correct errors and / way of defence disclosing the mistakes only when they can be manner and objects of the forbrought before us pursuant to mation of the company, its sublaw.

sequent management, the appointAppeal dismissed.

ment of a receiver, &c., tending to Opinion by Boardman, J.; establish the fact that an equivaLearned, P. J., and Potter, J., lent had been received by the com

pany for the stock, and that its

indebtedness to plaintiff had in PLEADING. IRRELEVANT fact been satisfied through a transMATTER.

action in the stock of the company

to which the person making the N.Y. SUPREME COURT. GENERAL

loan and receiving the note was a TERM. FIRST DEPT.

party, and it was as to several of Alphonse Duprat, appll., v. these statements that the motion James Havemeyer, respt.

to strike out portions of the anDecided Jan. 25, 1884.

swer was made.

Samuel L. Harris, for applt. Even a remote probability that allegations Lemuel Skidmore, for respt. contained in an answer may be pertinent

Held, That, although the perti. upon the trial of the action by way of explanation, or as connected with the history nency of some of the allegations of the subject matter of the litigation, is of the answer was not directly apsufficient to protect such allegations from

parent, still there was a possibilbeing stricken out as irrelevant on a motion ity that, upon a trial, they might for that purpose. Where irrelevant matter inserted in a plead-be pertinent by way of explanation ing can in no manner prejudice or injure or as connected with the history the other party in the enforcement of his of the subject matter of the litigarights it will not be stricken out on a motion for that purpose, but will be permitted tion, and even a remote probabilto stand, for a certain extent of liberality ity of this description would be must be allowed to avoid the risk of strik sufficient to protect these stateing out matter which may be pertinent to ments against a motion of this the proper trial of the action.

character. Appeal from an order denying a That the allegation that the motion to strike out portions of company had passed into the defendant's answer as irrelevant. I hands of a receiver, as well as some

The action was bronght by other statements to which allusion plaintiff, as a creditor of the Bald has been made, appear to have no Mountain Mining Co., on its prom- proper relation to any of the maissory note to enforce his claim terial issues in the case, and might against defendant, a stockholder very well be stricken out; but the in said company, upon the ground fact that they had found their way that the whole amount of the cap into the answer could in no manital stock of the company had not ner prejudice or injure the plainbeen paid in. Various matters tiff in the enforcement of his rights, were set forth in the answer by and, in such a case, very precise



rules on this subject cannot with | of sixty-five years of age, and by safety be prescribed, and a certain the affidavits used on the motion extent of liberality must be al- it appeared that owing to her lowed to avoid the risk of striking impaired health resulting from her out matter which may be pertinent injury she could not attend safely to the proper trial of the action, a trial of this case at Ulster Counand, for that reason, the power to ty ; that the number of her witstrike out has been limited to mat- nesses residing here was as great ter which may aggrieve the ad- as defendants' residing elsewhere, verse party.

and that a number of defendants Order affirmed.


were their Opinion by Daniels, J.; Brady, ployees, and all could easily be J., concurs.

brought to New York ; that plain

tiff's pecuniary circumstances are VENUE.

such that she was unable to pay

the necessary expenses to secure N. Y. SUPREME COURT. GENERAL the attendance of witnesses at TERM. FIRST DEPT.

Kingston, in Ulster Co. Eliza Cromwell, respt., v. Will

Erastus Cook, for applts. iam F. Romer et al., applts.

Matthew Daly, for respt.

Held, That the motion below Decided Jan. 25, 1884.

was properly denied. The application to change the place of trial That the application to change

under subd. 3 of $ 987, for convenience of the place of trial under subd. 3, witnesses, is one which rests in the sound

of S 987 of the Code, is one which discretion of the Court, and the Court will consider whether the ends of justice will be rests in the sound discretion of the promoted by the change, and on appeal the Court, and upon such an applicaCourt will not interfere with the discretion tion it is proper and incumbent of the Court below, unless abused.

upon the Court

consider Appeal from order denying mo- whether the ends of justice will be tion to change place of trial, for promoted by the change. 14 Hun, the convenience of witnesses, from 496 ; 22 Hun, 605. New York to Ulster County.

Plaintiff's pecuniary inability Action to recover damages re

for the attendance of sulting from defendants' negli- witnesses at Kingston, her feeble gence. Defendants are the owners health, the fact that a number of of a steamboat on the Hudson defendants' witnesses are their River, and in the forwarding busi- employees, and the fact that the ness. Plaintiff, a passenger on de- attendance of all defendants' witfendants' boat, the “M. Martin," nesses can be easily procured in was seriously injured by a cask New York, together with the coming in contact with her, while number of plaintiff's witnesses reon the gang plank at the landing siding here, impress us with the of the boat at Rondout,

conviction that justice would not Plaintiff is an old lady upwards be promoted by the change.


to pay

In one

The Court erred, however, in, up behind plaintiff and attempted imposing costs of motion upon to run by. Plaintiff's father defendants. The costs should whipped and ran his horses and have been made to abide the event. prevented him. Defendant made a In that respect the order below like attempt several times on their should be modified, and as modi- way to the school house and was fied, affirmed, without costs to each time prevented in like maneither party.

ner by plaintiff's father. Opinion by Brady, J.; Daniels, of such attempts defendant drove J., concurs.

his horse so near to plaintiff that the cutter thill struck her violently

in the back and injured her. NEGLIGENCE.

Samuel A. Bowen, for respt. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

George Scramling, for applt. Flora A. Scott, by guardian,

Held, That as plaintiff was rid

ing with her father under circumrespt., v. Zelotus Wood, applt.

stances giving her no control over Decided Jan., 1884.

his conduct the negligence of the

father was not therefore imputable Plaintiff, an infant of the age of discretion, was riding with her father under circum: to her. 66 N. Y.,11. Plaintiff's posistances giving her no control over his con- tion would be in no respect different duct. Held, That the negligence of the if she had been of full age and no father was not imputable to her.

way related to the driver of the Appeal from judgment entered sleigh. 71 N. Y., 228. on verdict for plaintiff and from The cases cited by appellant are order denying motion for a new w

those of infants under 14 years of trial made upon the minutes. age and therefore not presumably

The action was brought by plain. sui juris. In such cases a differtiff, who is an infant, against de- ent rule has been sometimes ap. fendant for injuries that she replied, by which the negligence of ceived by defendant's driving his the parents has been imputed to cutter thill against her back. | the child so as to forbid a recovPlaintiff, at the time of the occur- ery. See 6 Abb. N. C., 104, note ; rence, was fifteen years of age. 17 N. Y., 317; id., 326; Whart. on She was riding in a sleigh with her Neg., $ 309. Callahan v. Sharp, father, who was taking her to 27 Hun, 85, has been overruled by school. She was riding on the a new trial and is not therefore an right side in the rear seat of the authority. 16 W. Dig., 500. sleigh, and her brother on the left Judgment and order affirmed, side. Her father was driving the with costs. team and sat in the front seat Opinion by Boardman, J.; Lear. alone. Defendant was also tak ned, P. J., and Potter J., concur. ing his daughter to school in a cutter with one horse, and drove i

Vol, 18.-No. 19a.

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