to us to be clearly within the protection of the statute. The appellant calls our attention to the decision in Parkhurst v. Berdell, 110 N. Y. 386-393, 18 N. E. Rep. 123, in which Judge EARL, in speaking for the court, said: "What are confidential communications,' within the meaning of the section? Clearly, not all communications made between husband and wife when alone. * * * They are such communications as are expressly made confiden. tial, or such as are of a confidential nature or induced by the marital relations. Clearly, the definition given does not exclude such a conversation as the defendant desired to prove from the protection of the statute. Its nature was not only confidential, but it was apparently induced by the marital relation; for it cannot be conceived that such a topic would have been the subject of discussion but for the existence of such relation between the parties. A further test by which to determine whether a communication is confidential is suggsted by the learned judge in characterizing the nature of the conversations sought to be excluded in that case. He said: "They were ordinary conversations. relating to matters of business, which there is no reason to suppose he would have been unwilling to hold in the presence of any person. It cannot be supposed that both husband and wife would have been willing to discuss such a subject in the presence of other persons, or would have consented to a repetition of the conversation by either party to it. Its nature, and the relation of the parties, forbade the thought of its being told to others, and the law stamped it with that seal of confidence which the parties in such a situation would feel no occasion to exact. The wisdom of the statute was never more apparent than in this case, which exhibits a worthless husband in the attempted role of a destroyer of the good name of the mother of his children, because she sought, in the name of the law, to compel him to contribute towards her support, and that of his children. The judgment should be affirmed. All concur, except HAIGHT, J., absent. (132 N. Y. 187) ANGELL V. VAN SCHAICK et al. (Court of Appeals of New York, Second Division. March 15, 1892.) STATUTES-PLEADING CONSTRUCTION. In pleading the construction of a statute of another state by the courts thereof, it is sufficient to aver what the courts have decided under such statute; it not being necessary to set out the facts on which the decision was rendered, nor to refer to the cases by title, nor when or where reported. 9 N. Y. Supp. 568, reversed. Appeal from supreme court general term, fifth department. Action by Cyrus D. Angell against William Van Schaick, Holland D. Van Schaick, and Josiah F. Van Schaick, impleaded with Charles S. Barrett. From a judgment for plaintiff, reversing a judgment entered on the decision of a special term, which overruled plaintiff's demurrer to defendants' second cause of action, defendants appeal. Reversed. E. D. Northrup, for appellants. Henderson & Wentworth, for respondent. PER CURIAM. It is alleged in the complaint that the defendants owned real estate in McKean county, Pa.; that the plaintiff was a real-estate broker, having his office in that county; and that in 1886 the defendants employed the plaintiff to sell their realty, agreeing to pay him $500 for his services if he sold it for $30,000. It is further alleged that the plaintiff effected a sale for the sum mentioned. An answer was interposed, in which two defenses were pleaded: (1) A general denial; (2) that in 1885 and 1886 the plaintiff was a resident of, and engaged in the business of a real-estate broker in, McKean county. It was further averred that, by the statutes and laws of that state, all persons are forbidden, under a penalty of $500 for each offense, to engage in that business without paying to the treasurer of the county a fee fixed by the statute, and obtaining from that officer a commission authorizing them to carry on the business. It was also alleged that "the highest court of ultimate and appellate jurisdiction of said state of Pennsylvania, in a proper case brought before it for review, has decided, and still holds, that a real. estate broker not having such commission, or not having paid or caused to be paid into the treasury of the proper county the sum of money required by said laws and statutes to procure the same, cannot recover compensation or commissions for his services as such real-estate agent or broker; that by the laws and statutes of the state of Pennsylvania the plaintiff was absolutely prohibited from using or exercising the business or occupation of a realestate broker within the state of Pennsyl vania, under a penalty of $500, at and during all the times and periods of time mentioned in said complaint, and was also thereby prohibited from recovering in an action any compensation or commissions for his alleged services as a real-estate broker, alleged in said complaint. * * ** The statutes are referred to in the answer by the dates of their enactment, and the most important sections are literally set forth. It was further alleged in the answer" that the plaintiff, before the 1st day of January, 1887, had never paid or caused to be paid the sum or fee provided and required by said section five of said laws and statutes;" "that the whole of the said alleged services of the plaintiff for the defendants herein, and all the other matters and transactions alleged in said complaint, so far as any thereof ever occurred, took place, or were transacted or performed, occurred, took place, and were performed and transacted, in said city of Bradford, in said county of McKean and state of Pennsylvania, and none thereof were performed, transacted, nor agreed to be done, performed, or transacted, without said county of McKean; and that the land and property alleged and mentioned in said complaint was wholly situated in said county of McKean." To this defense the plaintiff demurred "upon the ground that such second defense is insufficient in law, upon the face thereof, in not stating " facts sufficient to constitute any defense. This demurrer was overruled at the spe cial term, and a judgment entered, which was reversed at the general term, and leave was granted the defendants to appeal to this court. The learned counsel for the plaintiff says in his points that the second defense is insufficient because "(1) there is no averment that the facts appearing in the complaint, and in the answer demurred to, do constitute such a proper case; (2) there is no averment that the highest appellate court of said state of Pennsylvania ever did decide or ever will decide as in the answer averred upon the facts now appearing in these pleadings; (3) what facts must appear to constitute a proper case in the judgment of that court of ultimate and appellate jurisdiction is left wholly unstated." The position of counsel is not very clearly stated. Of course, no decision has been made by the courts of Pennsylvania upon the identical facts presented by the pleadings in this case, because they have never been before those courts; but, if the learned counsel for the plaintiff means that the defendants should have averred in their answer that the decisions were made in cases involving facts like or similar to those in the case at bar, that mode of pleading would be open to his objection that such an averment would be but an allegation of the conclusion of the pleader that the facts involved in the decided cases were, in legal effect, the same as those set out in the answer in this case, and the result would be that all of the facts in the decided cases would have to be set forth in order to enable the defendants to prove the decisions of that state. We are not now concerned about what the courts of Pennsylvania have decided, or upon what particular facts their decisions were made. The sole question before us is, have the defendants pleaded sufficient facts to enable them to prove what those courts have decided? Upon the trial, those decisions will or may be proved in the manner provided by our laws, and then the courts of this state will be called on to determine whether the adjudications made by the courts of the state of Pennsylvania are decisive of this case. It is sufficient to aver that the courts of that state have held that a real-estate broker cannot, under their statutes, recover compensation for his services in negotiating sales, without having received a commission authorizing him to engage in that business. It is neither necessary to set out the facts on which the decisions were rendered, nor to refer to the cases by title, nor aver when or where reported, if reported. The validity of this contract must be determined by the laws of the state of Pennsylvania; and we think that under the rule laid down in Marie v. Garrison, 83 N. Y. 14, and Lorillard v. Clyde, 86 N. Y. 384, it is sufficient to aver that the courts of Pennsylvania hold that a real-estate broker cannot recover his commissions unless authorized to engage in that business as required by the statutes of that state. The judgment of the genAral term should be reversed, with costs, and the plaintiff should have leave, upon the payment of costs within 20 days, to withdraw the demurrer, and try the issues raised by the pleadings. All concur. (132 N. Y. 192) MCINTYRE v. BUEL et al. (Court of Appeals of New York, Second Division. March 15, 1892.) DECEIT EVIDENCE. In an action for the price of a "mining claim," defendants answered, as a defense and lently represented that his claim covered the counter-claim, that plaintiff falsely and frauduwhole of a certain "lode," whereas he had executed a prior conveyance for an interest in said claim for the "south one hundred feet of the surface ground," whereby defendants sustained damages. Plaintiff denied making false representations, and testified that he fully informed defendants that he had given a prior "surface" right to another. Held that, the issue being as to whether plaintiff made the fraudulent representations, it was not material thereunder whether the prior deed covered only a surface right or an interest in the mine under the surface, the construction of the deed having no bearing on the truth or falsity of the evidence. 10 N. Y. Supp. 332, affirmed. Appeal from supreme court, general term, fifth department. Action by George W. McIntyre against Luther H. Buel and Charles D. Safford. Judgment for plaintiff. Defendants appeal. Affirined. The other facts fully appear in the following statement by BROWN, J.: On July 21, 1881, the parties to this action entered into the following agreement: "For the purpose of forming a syndicate to purchase the John and Forrest lodes, located in San Juan county, state of Colorado, and ultimately to form a company to develop the same, we. George W. McIntyre and Luther H. Buel and Charles D. Safford, do hereby jointly and severally Covenant and agree: George W. McIntyre agrees to put in the John lode for $8,000, to be paid for in cash, $4,000, and syndicate shares or stock. $4,000, on a basis of fifty shares, at $500 each, making $25,000 for the proposed purchases of the John and Forrest lodes, (being 8% shares.) Messrs. Buel and Safford also agree to pay for the Forrest lode themselves; also all commissions; and are to have the remaining shares of the above-named fifty as their portion of the transaction. George W. McIntyre is to leave a deed of the John lode with Messrs. Buel and Safford, to be used only when the above arrangement is consummated, and only in case original Cameron scheme should fail to carry out its contemplated plans; otherwise said deed is to be duly returned to said McIntyre." Five days prior to the date of this agreement McIntyre had conveyed the John lode to Safford, as trustee. Thereafter, the Cameron scheme having failed, Safford conveyed the property to the Cameron Gold & Silver Mining Company of San Juan, Colo., and plaintiff thereupon received the stock to which, under the foregoing agreement, he was entitled, and was paid $1,900 in money. This action was brought to recover the balance of the sum of $4,000 stipulated to be paid to him. The defendants alleged, the as a defense and counter-claim, that the plaintiff, with intent to influence defendants to enter into said agreement, and to deceive and injure them, falsely and fraudulently represented that the said John lode was 1,500 feet long, and 300 feet in width, and that he was seised of the whole thereof, and that, relying upon such representations, defendants entered into said agreement, and made the payments aforesaid, but that, after so doing, they ascertained that on October 9, 1879, plaintiff had conveyed to Hannah B. McIntyre the south 100 feet of the surface ground of the said lode its entire length, and that by reason thereof they had sustained damage which they sought to counter-claim against plaintiff's demand. John J. Linson, for appellants. Adelbert Moot, for respondent. been shown to have been false, whether the deed conveyed one-third of the whole claim or a right only to one-third of the surface. The latter construction was the one claimed by the plaintiff, and his testimony was to the effect that he had informed defendants that he had conveyed away such a right. In considering the exception, therefore, it is evident that it has no effect upon the case made by the defendants' testimony. The jury have rejected their version of the transaction, and adopted the plaintiff's, and the effect of the appellants' argument is to ask us to hold that, adopting the plaintiff's evidence as to the facts, the jury would have been warranted in finding fraud had they been instructed that the deed conveyed one-third of the mine, instead of one-third only of the surface. Had the defendants sought, in their counter-claim, an abatement from the purchase price, growing out of the failure of the plaintiff to perform his coutract, or if a rescission was sought on the ground of mutual mistake, the erroneous ruling of the court would have a most material bearing on this appeal. But the Be ws, J. (after stating the facts.) The asserted counter-claim was a cause of action founded upon alleged fraud. In making this claim the defendants did not proceed in disaffirmance of their contract with the plaintiff, and that agreement remains effectual, subject only to such dam-counter-claim constituted a cause of ac ages as they may have sustained from the fraud which they charge upon the plaintiff. For the purposes of this action, therefore, no restoration of anything received under the agreement was essential. Gould v. Bank, 99 N. Y. 333, 2 N. E. Rep. 16; Thomson v. Sanders, 118 N. Y. 252, 23 N. E. Rep. 374: Vail v. Reynolds, 118 N. Y. 297. 23 N. E. Rep. 301. It was a fact well known to the defendants that the plaintiff had no title to the John lode. What he had and claimed to have was a locator's mining claim, and whether that would receive recognition from the gov ernment, and a title to the land he conveyed by it to the holder, was a matter of which defendants were to take the risk. The defendants' contention was that plaintiff represented that he possessed a claim to the whole lode, 1,500 feet long and 300 feet wide, whereas he had conveyed bis right to one-third of it to his niece Hannah McIntyre. The plaintiff denied making any false representation to the defendants as to the size or extent of the claim, and testified that he repeatedly told them that he had given to his niece the right to the surface of the south 100 feet thereof. He testified that he had no recollection of the deed, but he did not deny its execution. We must assume, from the verdict of the jury, that they adopted plaintiff's version of the transaction. The deed to Hannah McIntyre was produced on the trial, and the court charged the jury that it conveyed the right to the surface of the land only, and did not impair the plaintiff's right to his claim to the minerals beneath the surface, and the exception to the construction thus given to the deed is the only question necessary to be considered upon this appeal. The Construction and effect of the deed to Hannah McIntyre is not a question of importance to the cause of action constituting defendants' counter-claim. The representations there alleged to have been the inducement of the contract would have tion for fraud and deceit, and it was incumbent upon the defendants to prove, not only a false statement or representation as to the property agreed to be conveyed, but that such representations were made with intent to deceive, and that such was the result of defendants' reliance upon them. And we must find the evidence of such fraudulent intent in the record before us. The defendants have had their day in court, and were bound to prove their whole case, and, if it is claimed that there was an erroneous ruling upon the construction of the deed, it must appear that, upon the evidence before us, the jury would have been justified in finding a different verdict than that rendered, had the court instructed them upon the legal effect of the deed in accordance with defendants' request. As I have already stated, the construction of the deed had no bearing upon the truth or falsity of defendants' evidence, and the question now presented is, would it have permitted the jury, upon plaintiff's own testimony, to have found a fraudulent intent? Very obviously it would not. Treating it, as we must, in the light of the fact now determined, that the only representation was that plaintiff had conveyed to his niece one-third of the surface of the ground only, a ruling by the court that the deed conveyed one-third of the mine would have shown that the plaintiff's statement was untrue. Beyond that it would have had no effect on the case. It would not have shown that it was fraudulent. That fact remained to be proven by independent evidence, and I find none in the case that would justify such a conclusion. The deed is not free from ambiguity. The rulings of the trial court and the general term show that the plaintiff's construction has support in the language of the instrument. Of course, if he so believed, and honestly stated his belief, there would be no basis for a finding that he intended deceit. There is no evidence in the case as to the claim made by the grantee under the deed. She did not appear to be in possession, nor was it shown that she had ever asserted any rights in the property antagonistic to or inconsistent with the plaintiff's representations. It did appear that the corporation to which the property was conveyed by defendants failed to get a title from the government for the one-third described in the deed, and we may assume that that was because of the existence of the deed, but it nowhere appears that it was because of any claim made by Hannah McIntyre. For aught that appears in the evidence, Hannah McIntyre may have claimed to greater right in the property than the plaintiff said he had conveyed to her, and, if such was the fact, there was, of course, no false representation and no deceit. Innocence, therefore, is entirely consistent with the case made by the evidence, and, under such cir cumstances, guilt cannot be found. Fraud must be proven, and cannot be presumed, and we think that the evidence before us would not support any other conclusion than that plaintiff was entirely honest when he asserted that the rights that he had conveyed to his niece were in the surface of the ground only. We think it unnecessary to determine the proper construction of the deed, and that assuming, for the purposes of this appeal, that the trial court's construction was not the correct one, the error was not one which permits a reversal of the judgment. The judgment should be affirmed. All concur, except PARKER, J., not voting. (132 N. Y. 199) DWIGHT V. ELMIRA, C. & N. R. Co. (Court of Appeals of New York, Second Division. March 15, 1892.) DAMAGES-DESTRUCTION OF FRUIT-TREES. In an action for damages for injury to fruit trees the measure of damages is the difference between the value, before and after the injury, of the realty of which the trees formed a part. BRADLEY, BROWN, and LANDON, JJ., dissenting. 10 N. Y. Supp. 950, mem., reversed. Appeal from supreme court, general term, fourth department. Action by Ira Dwight against the Elmira, Cortland & Northern Railroad Company. From a judgment for plaintiff entered on an order affirming a judgment entered on the report of a referee, defendaut appeaks. Reversed. James Armstrong, for appellant. Raymond L. Smith, for respondent. PARKER, J. The judgment awards to the plaintiff $503 for damages occasioned by the defendant's negligence in setting on fire and destroying 21 apple-trees, 2 cherry-trees, and 2%1⁄2 tons of standing grass, and also injuring 7 apple-trees, the property of plaintiff. The only question presented on this appeal is whether the proper measure of damages was adopted on the trial. A witness called by the plaintiff was asked: "Question. What were those twenty-one trees worth at the time they were killed?" Objection was made that the evidence did not tend to prove the proper measure of damages, but the ob jection was overruled, and the answer was: "Answer. I should say they were worth fifty dollars apiece." Similar questions were propounded as to the other trees; a like objection interposed; the same ruling made; answers to the same effect, except as to value, given; and appropriate exceptions taken. Testimony was also given, tending to prove that the land burned over by the fire was depreciated in value $30 per acre. The only evidence offered by the plaintiff, touching the question of damages, was of the character already alluded to. Fruit-trees, like those which are the subject of this controversy, have little if any value after being detached from the soil, as the wood cannot be made use of for any practical purpose; but, while connected with the land, they have a producing capacity which adds to the value of the realty. Necessarily the testimony adduced tended to show, not the value of the trees severed from the freehold, but their value as bearing trees, connected with and depending on the soil for the nourishment essential to the growth of fruit. How much was the realty, of which the trees formed a part, damaged, was the result aimed at by the questions and attempted to be secured by the answers. Can the owner of an injured freehold, because the trees taken or destroyed happen to be fruit instead of timber trees, have his damages measured in that manner? is the question presented now, for the first time, in this court, so far as we have observed. The learned referee followed the decision in Whitbeck v. Railroad Co., 36 Barb. 644, in which the proposition is asserted that, while fruit-trees form a part of the land, the true rule is that if the thing destroyed has a value which can be accurately measured without reference to the value of the soil in which it stands, or out of which it grows, the recovery must be for the value of the thing destroyed, and not for the difference in the value of the land before and after such destruction. The court cited no authority for the conclusion reached, and our attention has not been called to any prior decision justifying its position. Nor has the Whitbeck Case been approved in this court, although cited and distinguished in Argotsinger v. Vines, 82 N. Y. 309. the rule is, undoubtedly, as stated by the learned judge in the Whitbeck Case, that a recovery may be had for the value of the thing destroyed, where it has a value which may be accurately measured without reference to the soil in which it stands, he apparenty overlooked the fact that fruit-trees do not have such a value; and the rule was, therefore, as we think, wrongly applied. Cases are not wanting to illustrate a proper application of that rule. Where timber forming part of a forest is fully grown, the value of the trees taken or destroyed can be recovered. nearly all jurisdictions, this is all that may be recovered; and the reason assigned for it is that the realty has not been damaged, because, the trees having been brought to maturity, the owner is advantaged by their being cut and sold, to the end that the soil may again be put to productive uses. 3 Suth. Dam. p. 374; While In receive a sum that would be equal to their value to him while standing upon the soil." The same rule prevails as to shade-trees, which, although fully developed, may add a further value to the freehold for ornamental purposes, or in furnishing shade for stock. Nixon v. Stillwell, (Sup.) 5 N. Y. Supp. 248, and cases cited supra. The current of authority is to the effect that fruit-trees and ornamental or growing trees are subject to the same rule. Montgomery v. Locke, 72 Cal. 75, 13 Pac. Rep. 401; Mitchell v. Billingsley, 17 Ala. 391-393; Wallace V. Goodall, 18 N. H. 439-456; 3 Sedg. Dam. (8th Ed.) § 933. It is apparent from the authorities already cited, as well as those following, that in cases of injury to real estate the courts recognize two elements of damage: (1) The value of the tree or other thing taken after separation from the freehold, if it have any; (2) the damage to the realty, if any, occasioned by the removal. Ensley v. Mayor, 2 Baxt. 144; Striegel v. Moore, 55 Iowa, 88, 7 N. W. Rep. 413; Longfellow v. Quimby, 33 Me. 457; Foote v. Merrill, 54 N. H. 490. A party may be content to accept the market value of the thing taken when he is also entitled to recover for the injury done to the freehold. But if he asserts his right to go beyond the value of the thing taken or destroyed after severance from the freehold, so as to secure compensation for the damage done to his land because of it, then the measure of damages is the difference in value of the land before and after the injury. In this case the plaintiff was not satisfied with a recovery based on the value of the trees destroyed, after separation from the realty, of which they formed a part,-as indeed he should not have been, as such value was little or nothing,-so he sought to obtain the loss occasioned to the land by reason of the destruction of an orchard of fruit-bearing trees, which added large. ly to its productive value. This was his right, but the measure of damages in such a case is, as we have observed, the difference in value of the land before and after the injury; and as this rule was not fol 3 Sedg. Dam. (8th Ed.) p. 45; Single v. Schneider, 30 Wis. 570; Webster v. Moe, 35 Wis. 75; Webber v. Quaw, 46 Wis. 118, 49 N. W. Rep. 830; Haseltine v. Mosher, 51 Wis. 443, 8 Ñ. W. Rep. 273; Tuttle v. Wilson, 52 Wis. 643, 9 N. W. Rep. 822; Wooden-Ware Co. v. U. S., 106 U. S. 432, 1 Sup. Ct. Rep. 398; Graessle v. Carpenter, 70 Iowa, 166, 30 N. W. Rep. 392; Ward v. Railroad Co., 13 Nev. 44; Tilden v. Johnson, 52 Vt. 628; Adams v. Blodgett, 47 N. H. 219; Cushing v. Longfellow, 26 Me. 306. In this state it is settled that even where full-grown timber is cut or destroyed the damage to the land may also be recovered, and in such cases the measure of damages is the difference in the value of the land before and after the cutting or destruction complained of. Argotsinger v. Vines, 82 N. Y. 308; Van Deusen v. Young, 29 N. Y. 36; Easterbrook v. Railroad Co., 51 Barb. 94. The rule is also applicable to nursery trees grown for market, because they have a value for transplanting. The soil is not damaged by their removal, and their market value necessarily furnishes the true rule of damages. 3 Sedg. Dam. (8th Ed.) p. 48; Birket v. Williams, 30 Ill. App. 451. Coal furnishes another illustration of the rule making the value of the thing separated from the realty, although once a part of it, the measure of damages, where it has a value after removal, and the land has sustained no injury because of it. 3 Sedg. Dam. (8th Ed.) p. 48; 3 Suth. Dam. p. 374; 5 Amer. & Eng. Enc. Law, p. 36, note 2; Stockbrdge Iron Co. v. Cone Iron-Works, 102 Mass. 80; Coal Co. v. Rogers, 108 Pa. St. 147-152; Dougherty v. Chesnutt, 86 Tenn. 1,5S. W. Rep. 444; Coleman's Appeal, 62 Pa. St. 252; Ross v. Scott, 15 Lea, 479– 488; Forsyth v. Wells, 41 Pa. St. 291; Chamberlain v. Collinson, 45 Iowa, 429; Morgan v. Powell, 3 Q. B. 278; Martin v. Porter, 5 Mees. & W. 351. On the other hand, cases are not wanting where the value of the thing detached from the soil would not adequately compensate the owner for the wrong done, and in those cases a recovery is permitted, embracing all the injury resulting to the land. This is the rule where growing tim-lowed, but rejected, on the trial, and a ber is cut or destroyed. Because not yet fully developed, the owner of the freehold is deprived of the advantage which would accrue to him could the trees remain until fully matured. His damage, therefore, necessarily extends beyond the market value of the trees after separation from the soil, and the difference between the value of the land before and after the injury constitutes the compensation to which he is entitled. Longfellow v. Qimby. 33 Me. 457; Chipman v. Hibberd 5 Cal. 163; Wallace v. Goodall, 18 N. H. 45456; Hayes v. Railroad Co., 45 Mion. 17-20, 47 N. W. Rep. 260. In Wallace's Case, supra, the court said: "The value of young timber, like the value of growing crops, may be but little when separated from the soil. The land, stripped of its trees, may be valueless. The trees, considered as timber, may from their youth be valueless; and so the injury done to the plaintiff by the trespass would be but imperfectly compensated unless he could method of proving damages adopted not recognized nor permitted by the courts, the judgment should be reversed. All concur, except BRADLEY, BROWN, and LANDON, JJ., dissenting. (132 N. Y. 205) GOODMAN V COHEN. (Court of Appeals of New York, Second Division. March 15, 1892.) STATUTE OF FRAUDS PROMISE TO ANSWER FOR 1. An oral agreement, by one of the appraisers appointed to assess the value of insured goods damaged by fire, to purchase the goods from the owner, and pay the price to the insurance company, such sum to be included in the final award, or, if such company became insolvent within 60 days, to pay same to the owner directly, is not within the statute of frauds, as a promise to answer for the debt or default of the insurance company. 2. The facts that the purchaser was an arbi |