Van Brunt, P. J., Barrett, Rumsey, Ingraham! and McLaughlin, JJ.

Henry H. Lyman, as State Commissioner of Excise of the State of New York, Appellant, v. Unity League, Defendant, and American Surety Company of New York, Respondent.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.- Appeal in this action from an order denying plaintiff's motion for a retaxation of costs.

PER CURIAM: The question presented on the appeal from the order in this action is the same as the question presented and determined in Lyman v. Young Men's Cosmopol itan Club (ante, p. 220), and for the reasons there stated the order must be reversed and a new taxation directed before the clerk, with leave to either party to use upon said new taxation such further affidavits or papers as may be necessary and proper. The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Present Barrett, Rumsey, Ingraham and McLaughlin, JJ. Marshall S. Driggs, Respondent. v. Robert J. Dean and William Wills, Appellants.-Judg. ment affirmed, with costs.- Appeal from a judgment entered upon the verdict of a jury directed by the court.

PER CURIAM: The question on this appeal was presented to this court on the former appeal (See Driggs v. Dean, 2 App. Div. 124) and decided in favor of the respondent, where it was held that, upon proof presented, the plaintiff was entitled to a verdict. For the reasons given in the prevailing opinion on the former appeal this judgment is affirmed, with costs. Present Van Brunt, P. J., Barrett, Rumsey. O'Brien and Ingraham, JJ. A. & S. Henry & Company, Limited, Appellant and Respondent, v. James Talcott. Respondent and Appellant.- Order modified as directed in opinion, and affirmed as modified, without costs.-Appeal by defendant from part of an order requiring him to serve a bill of particulars of certain matters alleged in counterclaim set up in amended answer. Appeal by plaintiff from that part of the order which denies its motion for a bill of particulars, except as specified in said order.-

PER CURIAM: The order appealed from should be modified, by adding to its first requirement the words: "And the specific goods which were rejected and returned as alleged in said counterclaim." The order as modified is affirmed, without costs. Present Van Brunt, P. J., Patterson, O'Brien, Ingraham and McLaughlin, JJ.

The People of the State of New York ex rel. Walter R. Ballard, Relator, v. Frank Moss and Others, Commissioners, Composing the Board of Police of the Police Department of the City of New York, Respondents.- Writ quashed and proceedings affirmed, with costs. Certiorari to review the action of the board of police of the police department of the city of New York in dismissing the relator from the police force.—

BARRETT, J.: At the November term of last year this case was argued and decided (34) App. Div. 475). It was then held that, as the return failed affirmatively to show that the witnesses were not sworn, the case of Kasschau v. Police Comrs. (155 N. Y. 40) was inapplicable, and the presumption of legal action on the part of public officials attached. Subsequently the relator moved for a rehearing, and upon that motion he presented facts which induced this court to give him an opportunity to move in the court below for an amended return. Our direction was that, should the motion be granted, the case would |

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be reheard upon the amended return. The case is now before us upon such rehearing, but in looking into the record we find no amended return. The case is in the same condition as when it was previously here, with the addition of an amended petition, and what is styled, and in fact is, an answer to such amended petition. The original return to the writ, and the further return which was made in May, 1898-upon which our original decision was made-remain as they were, unchanged and without amendment. It follows, therefore, that the relator has not taken advantage of the favor extended to him, and that the case made by the record is the same as that previously passed upon. If, however, we should treat the answer to the amended petition as an amended return to the writ, we see no reason to recede from our original conclusion. It is true that the respondents do not specifically deny the allegations of the amended petition, to the effect that but two of the witnesses were sworn, and that the others testified without the sanction of an oath or affirmation. They state, however, that they were not in office at the time of the relator's trial, and that all the information which they have or possess on the subject, is derived from the records of the department of which they are now the head. These records show, they allege, that Roundsman Patrick Curran and the relator were sworn, but fail to disclose whether the other witnesses were or were not sworn. We need not consider whether this would have been sufficient had the respondents been required to make an amended return upon the specific subject. It is enough for our present purpose to say that this answer discloses the actual facts, and that these facts plainly indicate that the relator was in no wise prejudiced by the failure to swear the witnesses other than Roundsman Patrick Curran and the relator. If such prejudice were apparent, we might consider the propriety of again indulging the relator and giving him a further opportunity to procure an amended return to the writ. The reverse, however, is apparent, as a brief reference to the charges and the evidence will show. The relator was charged, first, with conduct unbecoming an officer. The specification was that he used disrespectful language to his superior officer, Roundsman Patrick Curran. Substantial proof of this charge and specification emanated from the relator himself. He teils us just what he said in the station house in the presence of Acting Sergeant Hayes and Roundsman Curran. This is his own testimony: The sergeant wanted to know what the matter was, and I said, Roundsman will tell you what for: and the roundsman said, I have brought this man in off post because he refused to patrol his post. I said. Is that what you brought me in off post for?' He didn't pay any attention. Iturned to the roundsman and said, 'Roundsman, you lie; that is not what you brought me in off post for. This fully supported both charge and specification. It is contended that the roundsman was not the relator's superior officer. We need not consider the roundsman's precise function. He certainly occupied a superior position to the relator, and was his superior within the spirit of the rule. Such language as the relator admits that he thus used in the presence of the acting sergeant was enough to justify the board in disciplining him. It was disrespectful, and it savored of rebellion and insubordina tion. An officer who cannot control himself and submit respectfully to a disagreeable exercise of lawful authority is not fit to be on

the described tract as a separate and distinct | parcel of land. Upon the trial of the former action, evidence pro and con upon this subject was taken, and the referee found, as matter of fact, that the law of Pennsylvania was not as the defendant had pleaded. In the present case the referee ruled out all evidence as to the law of Pennsylvania, and held that the facts on that head stated in the defendant's plea constituted no defense. This ruling was in our judgment entirely correct. It was in accordance with the law as laid down by our court of last resort in Genet v. D. & H. C. Co. (136 N. Y. 598). In that case the Court of Appeals construed this very contract and held that it did not operate as a conveyance of the coal veins or strata; that its subject-matter was mineral product, not land; and that it was in its nature executory. That interpretation was conclusive upon the referee, and is conclusive upon us. It follows that the judgments upon the defendant's appeals should be affirmed. The result must be the same upon the plaintiff's appeals. The findings of the learned referee as to what the plaintiff was and was not entitled to recover were amply supported by the evidence, and we concur in the reasons which he gave for his decision upon that head. The judgments upon all appeals should be affirmed, without costs to either party upon these appeals. Van Brunt, P J., Rumsey, O'Brien and Ingraham, JJ., concurred.

Peter H. Daly, Appellant, v. Central Railroad of New Jersey, Respondent.-Judgment and order affirmed, with costs.- Appeal by the plaintiff from a judgment entered upon a direction by the court of a verdict for the defendant, and from an order denying his motion for a new trial upon the trial judge's minutes.

We

BARRETT, J.: Upon a previous trial of this case the plaintiff was nonsuited. He appealed, and upon that appeal we held that the nonsuit was erroneous, and that his testimony standing alone was sufficient to carry the case to the jury. (26 App. Div. 200.) Upon the second trial now under review the plaintiff gave substantially the same testimony as upon the first trial. need not repeat that testimony. Its substance will be found in the report of the previous appeal. Upon the present trial, the learned trial judge, following our decision, denied the motion for a nonsuit made at the close of the plaintiff's case. The defendant then put in its evidence, which conclusively established the fact that the plaintiff was picked up at a point nearly half a mile distant from the station terminus. This point could only have been reached in the manner testified to by the defendant's witnesses. The train was backed out by its engine, and was subsequently picked up by a drill engine. It was then pulled back more than half a mile from the station, then around a switch and back again a considerable distance. It finally reached the point where, according to the uncontradicted testimony of six witnesses, the plaintiff was found. The plaintiff was called in rebuttal. but gave no testimony on this point. In his original testimony he stated that he was dragged out "on the yard" some distance; that he believed he was dragged about 200 or 300 feet; and that then his clothing, which had been caught on the step of the car, gave way, and the wheels went over his foot. Upon this latter testimony the case for the plaintiff was certainly slight and doubtful. He was entirely unsupported by any other witness. Upon the other hand, two of the defendant's witnesses testify that he was not

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At

dragged at all from the station terminus, but was on the steps while the car was being backed. This is strongly supported by the uncontradicted testimony of four other of the defendant's witnesses, who agree as to the precise point where he was found. The plaintiff, with all this testimony before him, entirely failed to deny that he was picked up at the point in question. Thus, what must be deemed the uncontradicted evidence of the latter fact conclusively negatives the plaintiff's story as to how the accident occurred. If he attempted to alight at the station terminus and there fell, how could he possibly have been dragged backwards and forwards to the point half a mile distant? His own story, that he was dragged some 200 or 300 feet, was sufficiently improbable, though not so impossible as, standing alone, to warrant the withdrawal of its consideration from the jury. When we find, however, that he was picked up at a point half a mile distant-a point so situated that the car could not have been pulled back to it in a direct line-the conclusion seems inevitable that he minimized the extent of the dragging because an admission that he had been dragged to the point where he was actually picked up would have been fatal. the close of the case the learned trial judge directed a verdict for the defendant - we think, correctly. A verdict for the plaintiff could not, upon such testimony, have been sustained, and if rendered, it would have been the duty of the trial judge to set it aside. The rule is well settled that where the weight of evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would necessarily be set aside, the trial court may properly direct a verdict. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Linkhauf v. Lombard, 137 id. 426.) The case of Williams v. D., L. & W. R. R. Co. (155 N. Y. 158) does not conflict with or modify this rule. In that case the plaintiff was nonsuited because the trial court did not, for somewhat obvious reasons, credit the plaintiff's testimony. The Court of Appeals reversed the nonsuit upon the ground that it was the province of the jury, not of the court, to say whether the plaintiff's testimony was entitled to belief. This was all that the court there held. It was not a question, therefore, of the weight of evidence or of the preponderance of testimony. The rule on the latter head was not the subject of consideration, nor was there the slightest intimation that that rule was in conflict with the general rule as to the province of a jury upon a question of credibility. In the case at bar the preponderance of testimony adverse to the plaintiff's weak and improbable story was so overwhelming that it was the plain duty of the trial judge to direct, as he did, a verdict for the defendant. The judgment and order appealed from should, therefore, be affirmed, with costs. Van Brunt, P. J., Rumsey, O'Brien and Ingraham, JJ., concurred.

Thomas Barry, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.- Judgment affirmed, with costs. Order affirmed, with costs.- Appeal by the plaintiff from a judgment in his favor against the defendant for the sum of $1,323.72, entered upon a direction of the court at Trial Term; also from an order denying his motion for a new trial on the ground of newly-discovered evidence.

BARRETT, J.: On February 14, 1894, the plaintiff entered into a contract with the defendant to " regulate, grade, set curbstones. flag the sidewalks and lay crosswalks in One

App. Div.]

Hundred and Sixty-first street, from Gerard | avenue to Jerome avenue, and build culvert at Cromwell's creek." The contract provided that the work was to be done "in accordance with the plan and profile of the work approved on the 21st day of September, 1893, on file in the office of the Commissioner of Street Improvements of the Twenty-third and Twenty-fourth Wards." It further provided: "No allowance will be made for any excess above the quantities required by such plans, lines and specifications on any part of the work ** * * no allowance beyond the present surface of the meadow will be made for any shrinkage or settlement, and the cost of replacing any material sinking or settling will be included in the price paid for filling measured as above stated." The plan, as introduced at the trial, contains a series of blue and yellow lines below the grade line of One Hundred and Sixty-first street. They were marked "mud" where they crossed the creek, and were evidently intended to represent the surface of the ground. The engineer for the commissioner of street improvements, under whose direction the plan was made, testified that the two lower lines indicated the levels of the respective sides of the street. This plan bore the inscription: "No allowance will be made for any filling below the present surface of the ground," and also, "The lower line indicates the surface to which the embankment will be measured and allowed. No allowance will be made for any fiil above this surface." The sole question is whether the plaintiff is entitled to recover for some 45,000 cubic yards of material used to fill in beneath the level indicated by blue and yellow lines on the plan. The contract, specifications and plan must be read together, and when so read are quite unambiguous. The specifications fix the limit to which allowance shall be made for filling as the "present surface of the meadow." These words seem plainly to indicate the surface of the ground at the time of the making of the contract. The argument that they mean a durable or tenable surface. capable of supporting filling, is, at the best, based upon a gratuitous assumption; and it directly conflicts with the conditions under which the language was used, for the "present surface," as the parties well knew, was most of it soft and yielding. And the meaning seems to be made entirely clear by the following provision that there shall be no allowance for "shrinkage or settlement," or for material sinking or settling." If, however, there is any ambiguity in the contract and specifications, it is resolved by the plan. On this, lines are drawn to represent the surface of the ground, and a superscription states distinctly that no allowance will be made for filling below the surface as thus indicated. None of the exceptions were well taken. Parol evidence as to the meaning of the words "present surface of the meadow" was properly excluded, for there was no ambiguity in the written agreement. It is also contended that it was error to exclude testimony as to the meaning of the lines shown on the plan. But such testimony was not excluded. Some preliminary questions and some questions calling for conclusions were excluded, but the substantial fact as to what the lines indicated was, as we have seen, allowed to be proved by the engineer. None of the other exceptions require mention. We think, therefore, that the judgment rendered at the trial was clearly right. On the motion for a new trial it was shown that the words "The lower line indicates the surface to which the embankment will be measured and allowed. No al

lowance will be made for any fill below this surface," were not upon the plan when it was signed, or on January 3 or 4, 1894, when the plaintiff's agent examined it for the purpose of preparing a bid. This is established by uncontradicted proof. There was a conflict of evidence as to whether the blue and yellow lines were also added subsequent to the examination by the plaintiff's agent, or were on the plan throughout. But we cannot say that the weight of evidence on this head supports the plaintiff's claim. On the contrary, the weight of evidence is really with the defendant. That leaves for consideration merely the effect of the uncontradicted evidence as to the absence of the superscription. We think that superscription added nothing to the force and effect of the written agreement. As already stated, the specifications, by themselves, clearly negative the plaintiff's right to recover for material used to fill in below the surface of the meadow, as that surface existed when he undertook the work. The absence of the superscription from the plan in no way affected his rights or influenced his conduct. But there is another conclusive reason why he is not entitled to a new trial. On March 20, 1894, shortly after the commencement of the work, an interview took place between the plaintiff and Commissioner Haffen, Chief Engineer Risse and Engineer Thompson. This meeting was had for the very purpose of avoiding all misunderstanding as to the work which the plaintiff was to do. Certain questions were put to him and his answers taken down by a stenographer. He was asked the following questions and gave the following answers: "Ques. (by Chief Risse) One question I would like to ask, Mr. Barry, and that is, do you understand perfectly well that no allowances for filling in below the present surface, as indicated on the plan, will be allowed? Ans. (by Mr. Barry) You mean no allowance for displacement? Ans. (Chief Eng'r Risse) Yes, sir. Ques. (by Com'r Haffen) You signed the specifications, Mr. Barry, did you not? Ans. (Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) You understood what you were bidding on, did you not, Mr. Barry? Ans. (by Mr. Barry) Yes, sir. Ques. (by Com'r Haffen) Mr. Thompson, I believe you have a question to ask, and that is, that there was no allowance to be made for filling in below the present surface line; you understood that, Mr. Barry, did you not? Ans. (by Mr. Barry) Yes, sir; I suppose the specifications stated that." We thus have the plaintiff's distinct admission that he understood and believed that he was to be paid only for filling above the actual surface of the ground, and was to receive no allowance for what sunk beneath this surface. If there was any ambiguity in the written agreement, this conclusive parol evidence of the understanding of the parties completely negatives the plaintiff's claim. The judgment and order should each be affirmed, with costs. Brunt, P. J., Rumsey. O'Brien and Ingraham, JJ., concurred.

Van

The People of the State of New York ex rel. Joseph E. Brady, Relator, v. Frank Moss and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.- Proceedings annulled, with fifty dollars costs and disbursements, and the relator reinstated. Certiorari to review the action of the respondents in dismissing the relator from the police force of the police department of the city of New York.

BARRETT, J.: The charge against the relator was that, "at the Twentieth Precinct Station 80

House, No. 434 West Thirty-seventh Street, j at 2 P. M., February 18, 1897, (he) was so much under the influence of liquor as to be unfit for duty." He was found unconscious on this day in front of No. 219 West Fortieth street, and taken to the station house named in the charge. He remained there for nearly three hours. From the station house he was taken to the Second District Court, where he was fined one dollar. The testimony against the relator shows that he was unconscious, or partially so; that his breath smelled of liquor, and that he acted like a man who was drunk to stupefaction. On the other hand, it appears that he complained of being unwell on the morning in question, and was excused from roll call. It was his off day, and he went home. The relator and his wife both testify that she advised him to take some quinine and whisky, and that he did so. His wife was then sick in bed, and she asked him to go to a druggist's to get some medicine. He did not want to go because of his own illness, but as there was no one else to send he finally started out upon this errand. The druggist's shop was at the corner of Broadway and Forty-first street. On the way he fainted. He says that this was due to his sickness, and that he had not previously taken enough whisky to affect him. He is corroborated as to the occurrence on the street by Lemmon, to all appearances an absolutely disinterested witness. The latter says he met the relator on West Fortieth street; that he was very pale, but walked steadily and showed no sign of intoxication; that just as they passed each other the relator collapsed, and that he (Lemmon) got a tumblerful of brandy and poured it down the relator's throat. The manager of the hotel where the brandy was obtained corroborated Lemmon as to its procurement. Upon this evidence the relator fairly acquitted himself of the charge made against him. He certainly cannot be held to be in fault for the brandy which he thus swallowed while unconscious. (People ex rel. McAleer v. French, 119 N. Y. 504.) Consequently, the sole basis for the charge against him was the quinine and whisky which he took at home. But if the relator, even without a physician's direction, in good faith, took a moderate dose of quinine mixed with whisky for his ailment, he was guilty of no offense justifying his dismissal. cording to his own testimony, corroborated by that of his wife, this is all that he did, and there is nothing to contradict or impeach him on that head. As to the brandy and his condition on the street, he is, as we have seen, directly corroborated by Lemmon, who says that his face was pale, instead of being flushed, and that he walked steadily. If his collapse had been due to liquor, his gait and whole demeanor on the street would have shown unmistakably the fact of his intoxication. The testimony against the relator is perfectly compatible with the evidence in his favor. Because he was unconscious or stupefied and his breath smelled of liquor, the witnesses for the respondents not unnaturally thought that it was a case of voluntary intoxication. But the uncontradicted and unimpeached evidence in his behalf shows that he fainted from sickness, and that he had not voluntarily and consciously drunk such a quantity of liquor as could intoxicate him or unfit him for duty. The defense here made is a common one in this class of cases, and invites careful scrutiny, but still it must not be disregarded when it is fully and fairly established. The proceedings before the magistrate cannot, in any way, bar or prejudice

Ac

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the relator. Whatever weight might be attached to the mere fact of the fine is balanced by evidence that the magistrate professed himself as doubtful about the case; that he imposed the lightest fine possible, and that he expressed his willingness to remit it. The proceedings should be annulled, with fifty dollars costs and disbursements, and the relator reinstated. Van Brunt, P. J., and Ingraham, J., concurred; Rumsey and McLaughlin, JJ., dissented.

MCLAUGHLIN, J. (dissenting): The relator was charged with conduct unbecoming an officer. The specifications were that he, at a time and place named, was so much under the influence of liquor as to be unfit for duty, and that he was arraigned before a police magistrate charged with intoxication, tried and convicted of that offense. Upon this charge and these specifications the relator was tried by the police commissioners, and after such trial duly had and upon evidence legally taken, he was found guilty and dismissed from the force. The relator assails the finding of the commissioners upon the ground that there was no evidence to support the finding and that it was against the weight of evidence. After a careful consideration of the record before us, I am satisfied that the finding of the commissioners was correct. Upon the hearing before them, it appeared from the testimony offered on the part of the respondents that the relator was found by a police officer shortly after eleven o'clock A. M. lying on the front stoop of a building on Fortieth street, in an unconscious or semi-unconscious condition; that he was taken by the officer to the police station and there examined by the police surgeon for the purpose of determining whether "it was a hospital case or not; that the police surgeon thoroughly examined the relator and found that he was suffering from intoxication and nothing else; that the relator remained in the station house between two and three hours, at the expiration of which time he regained consciousness, and so far recovered from his stupor that he was arrested, taken before a magistrate, charged with intoxication, and by the magistrate tried, convicted and fined for that offense. The testimony thus given by the respondents tending to prove the foregoing facts, was not disputed by the relator, but instead he sought to establish facts which would explain his physical condition as well as his conviction by the magistrate. From his testimony (and he was corroborated in some respects by other witnesses) it appeared that when he left his post of duty on the morning in question he complained of not feeling well, and in response to a suggestion made by a brother officer that he go upon the sick list, replied that he had twenty-four hours off and thought "he could fix it up in that time;" that he did not report to the police surgeon or consult a physician, but went to his home and, at the suggestion of his wife, took some quinine and whisky, and then, at her request, started to go to a drug store, and before reaching there collapsed in the street; that he had no recollection of what occurred thereafter until he came to in the station house. It did not appear from his testimony, or any offered in his behalf, how much quinine and whisky he took, or when he took it, or what time it was when he left his home and started for the drug store, or how far he had progressed on his journey when he collapsed. Neither did it appear where he was from the time he left his post in the morning until he was taken by his brother officer to the station house, further