his name on the stand for that day." This limited privilege is entirely inconsistent with a general right of transfer, even to other members of the exchange. It is clear, therefore, that the moment Levy ceased to be a member, his rights as a special standholder terminated. His rights here terminated with the transfer of the shares of stock which he was required to hold to entitle him to membership, and such rights, beyond all question, terminated with his death. The learned counsel for the appellant contends that, even if the latter proposition be correct, yet the plaintiff took the remainder of the five-years term by the transfer prior to Levy's death. But Levy could not, under any circumstances, confer upon the plaintiff any other or greater right than he himself possessed. It would be a strange doctrine which would enable the assignee to retain possession for the remainder of the term, when, if the assignment had not been made, the assignor would have lost the right to retain such possession under the terms of his contract; in other words, that the assignee should take freed from the proviso specially imposed upon his assignor.

But we need not dwell further upon this contention, as we place our judgment upon the distinct ground that the agreement in question was personal to Levy and non-assignable.

The defendant might not specially object to his utilizing the stand as he did, while he continued to be an auctioneer and a member (although the facts entirely fail to show either a substituted tenancy or an estoppel), yet we have no doubt that it had a right, upon the cessation of his membership, to repossess itself of such stand and to place it again in competition.

The judgment appealed from should be affirmed, with costs. PATTERSON, J., concurs.

THE PEOPLE ex rel. ALBERT E. WESTLOTORN, Relator, v. CHARLES F. MACLEAN et al., Com'rs., Resp'ts.

(Supreme Court, General Term, First Department, Filed June 26, 1891.) MUNICIPAL CORPORATIONS-DISCHARGE OF POLICEMAN-CERTIORARI.

The relator, a policeman, was charged with making an unprovoked assault on S., arresting him and falsely charging him with disorderly conduct. The charge was fully established. The testimony of the relator was improbable. Held, that the dismissal of the relator by the police commissioners would not be disturbed by certiorari.

CERTIORARI to review the proceedings of the police commissioners dismissing the relator from the police force.

Louis J. Grant, for relator; W. H. Clark, corporation counsel (John J. Delany and Cornelius F. Collins, of connsel), for resp't.

BARRETT, J.-The relator, a member of the police force, was charged with conduct unbecoming an officer. The specifications were that "the said patrolman Albert E. Westlotorn did, on the evening of June 23, 1890, at about 11.50 o'clock, at the corner of Spring and Hudson street, without cause or provocation, assault Daniel J. Sullivan, shove him into the street, at the same time striking him a violent blow on the head with his club, arrested him and falsely charged him with disorderly conduct."

The charge and specifications were fully established by the complainant Daniel J. Sullivan, and his testimony was corroborated by a large number of witnesses. We have examined the testimony with care and are quite satisfied that the judgment of the commissioners was entirely just. It is rare that so unprovoked and brutal an assault as that disclosed by the record is brought to the attention of the court, and it is difficult to perceive upon what theory this appeal was taken. The testimony adduced by the relator before the commissioners was most improbable, and the preponderance of evidence was decidedly against him. The appeal is without merit, and the writ should be dismissed, with

costs.

VAN BRUNT, P. J., and PATTERSON, J., concur.

AUGUSTUS S. SHEPARD, Resp't, v. THE NEW YORK ELEVATED R. R. Co. et al., App'lts.

(Supreme Court, General Term, First Department, Filed June 26, 1891.)

1. TRIAL-REMARKS OF COUNSEL AT OPENING.

Where, upon a trial before referees, the counsel for plaintiff made many inconsequent and irrelevant remarks before any testimony had been offered, but it appears the referees were guilty of no misconduct, and made an award of a less amount than was claimed by plaintiff, and such as was sustained by the evidence, a verdict for plaintiff will not be disturbed. 2. EVIDENCE-OPINION-WHEN WITNESS COMPETENT.

A witness was asked the value of certain property; it was shown that he had lived in the neighborhood for twenty-five years, and had kept himself well informed of both fee and rental values of property in the vicinity. Held, that the witness was competent to speak as to facts and to give an opinion as to values.

3. APPEAL OBJECTIONS TO ANSWER NOT RAISED BELOW.

Where the answer of a witness is not objected to on the trial, it cannot be afterwards raised on appeal that the answer was incompetent.

APPEAL from judgment entered on report of referre.
Davies & Rapallo, for app'lts; Peckham & Tyler, for resp't.

PATTERSON, J.-We see no reason for disturbing the judgment entered upon the report of the reference.

In the opening remarks of counsel on the hearing, which have been excepted to, many inconsequent and irrelevant things seem to have been said, which as they are reported, if they had any weight at all, we would regard as rather tending to prejudice the referees against the plaintiff than prepossess them in his favor. It cannot be inferred that they were at all impressed by the rambling talk which appears to have been the feature of the opening. They were bound to determine the case on its merits. No testimony had been offered. It is a very different thing when the proofs are all in and counsel comment on them in such a way as may influence the minds of jurors unfairly, by illegitimate allusion to matters outside the record. When a case is opened there is no record at all and while it is barely possible that before a jury such unchecked statements made at the onset of a trial might affect them, it is incredible that a tribunal composed of experi

enced men, such as these three referees, would in anyway be gov. erned by what was said before a witness was called, or that after a protracted investigation covering a long period of time, their mature deliberation upon the evidence when it was all before them, would be controlled by a mere wandering opening speech. That would be to hold that the referees were not only unfit to be trusted with the duty devolved upon them, but that they were foolish enough to be affected by what would not influence an inteligent child who understood him to form an opinion upon facts presented to him. The cases cited by the appellant relate to a different phrase of the question. There is no misconduct shown on the part of the referees. They were patient and tolerant and that is all, and when we come to consider the whole case it is quite apparent they did not make their award in view of what was said on the opening, but on the contrary fixed an amount very much below that claimed and expected by the plaintiff and much within the limit they might have gone to on the proofs.

An exception was taken to the testimony of the witness Sobel who was asked the value of certain property on Greenwich street in the years 1870 to 1873. The specific ground of the objection was that the witness was incompetent to testify as an expert. We think his examination showed that he was quite competent to speak as to facts and also to give an opinion as to values on Greenwich street. He was an owner of real estate there and in other parts of the city, he had lived on Greenwich street in the neighborhood of the premises referred to in the question for a quarter of a century and had kept himself well informed of both fee and rental values of property in that vicinity.

An exception was also taken to a ruling permitting the witness Eddy to answer a question by which he was asked on redirect examination to state further what was the cause of the fall in values of property on Greenwich street. He was a so called expert witness on behalf of the plaintiff and on cross-examination had been interrogated as to the causes of the advance or decline of real estate in certain localities. It is not argued now that the question was improper. It called for facts and not conclusions of the witness and the plaintiff was entitled to dispel any inference that might have been drawn from the testimony on the cross-examination as to decline in values, for so far, the causes then stated seemed to be the only operative ones in the judgment of the witness. The answer is objected to, however, and it is said that it is an expression of an opinion by the witness in one of the issues the referees were to determine. But that answer stands unchal lenged. No motion was made to expunge it and it went before the referees with the apparent acquiescence of the defendants. The other exceptions noted on the appellant's brief as being insisted upon do not require consideration.

Judgment affirmed, with costs.

VAN BRUNT, P. J., and BARRETT, J., concur in result.

HENRY E. BANDELL, Resp't, v. S. ELWOOD MAY, App'lt.

(Supreme Court, General Term, First Department, Filed June 26, 1891.) MALICIOUS PROSECUTION-PROBABLE CAUSE EVIDENCE OF.

Upon the trial of an action for malicious prosecution, it appeared that the plaintiff ordered from the defendant 500 cases of goods, to be delivered in two equal lots. The first was delivered and paid for. The plaintiff ordered the second lot shipped, and sent his check for the same; the de fendant only shipped 200 cases, and promised to return the check; not doing so, plaintiff stopped its payment. Defendant caused the plaintiff to go to Nyack, the former's home; and on the plaintiff's arrival there, caused his arrest on a charge of grand larceny for stealing the sum of $625. Held, that there was an absence of probable cause for plaintiff's

arres.

APPEAL from circuit court.

William Blakie, for app'lt; E. J. Newell, for resp't.

PATTERSON, J.-This cause was submitted without argument. We have been unable to ascertain from the appellant's brief the precise grounds relied upon as assignments of error in the rulings of the court below, and have thus been compelled to go over the whole record and examine the whole case to ascertain whether or not any ground exists for a reversal of the judgment. The action was for malicious prosecution, and on the trial this state of facts was disclosed: The defendant was a manufacturer at Nyack, in the state of New York; the plaintiff was the selling agent of his goods in the city of New York. A contest arose between them as to the scope of the agency, and whether or not it included a certain description or kind of goods manufactured by the defendant. While that contest was pending, the plaintiff ordered on his own account, from the defendant, certain goods, namely: five hundred cases, which were to be paid for at the rate of $2.50 a case. The deliveries were to be made of two hundred and fifty cases each, and payment was required before shipment. The first lot of two hundred and fifty cases was delivered and paid for. Subsequently the remaining two hundred and fifty cases were ordered, and the plaintiff sent to the defendant his check for $625 to pay for that second shipment, and it was the full amount of that shipment which was thus paid for in advance. Instead of sending two hundred and fifty cases, the defendant only shipped two hundred cases, and kept the check of the plaintiff, but it would appear that by reason of some misunderstanding, the defendant would not send the goods ordered by the plantiff, and promised to return the check. Thereafter, the plaintiff not receiving his check, stopped its payment, and the defendant, although he had not made delivery of the goods ordered by the plaintiff, demanded the full sum of $625, which it appears was not complied with. It is further shown, that the defendant caused the plaintiff to go to Nyack while this matter was still unsettled between them, and, on the plaintiff's arriving at that place, he was arrested on a charge of grand larceny, for stealing the sum of $625. He was imprisoned and apparently treated with great indignity, and the only ground upon which the charge of larceny

could have been predicated, was stopping payment of the check for $625, which was done on the claim that the defendant was not entitled to that money because of a breach of his contract to furnish goods to that amouut in value.

Looking through the whole case without any guidance or direction whatever from the brief presented by the counsel for the appellant, it would seem upon the statement of the case, as made above, that there could be no doubt of the plaintiff's right of recovery. There was no probable cause whatever for the arrest. It seems to have been a mere act of spleen or vengence. Mercantile transactions had taken place between these parties, the defendant according to the contention of the plaintiff, was in absolute default upon his contract, and there is no reason why the plaintiff should be called upon to pay $625 for $500 worth of goods. There was no excuse so far as this record shows for the defendant setting in motion the enginery of the criminal law, against the plaintiff who at least, had a fair and reasonable ground of difference with him, and that is sufficient of itself to show, that the prosecution was instigated by malice; and the learned court was therefore right in saying that there was no ground whatever of probable cause, and to quote the language of the learned judge, as matter of law, "I hold there was an absence of probable cause of the crime of larceny," and there was very complete proof that the charge was instigated simply by malice. There was not the slightest evidence whatever to implicate the plaintiff in the commission of a crime, and that he was honorably discharged after an examination before the justice can scarcely be contradicted. Under the circumstances of the case, the amount awarded by the jury was not excessive, and on going over the whole record we find nothing whatever which should induce us to reverse the judgment entered below.

Judgment affirmed, with costs.

VAN BRUNT, P. J., and BARRETT. J., concur.

WILLIAM H. KINGSLAND, trustee, Resp't, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, App'lts.

(Supreme Court, General Term, First Department, Filed June 26, 1891.) 1. EMINENT DOMAIN-RECITALS OF DEED NOT PROOF OF VALUE.

In the trial of an action for the assessment of damages sustained by plaintiff in the appropriation of his property by the city, the recitals as to consideration in deeds from the owners of similar property in the city, is not evidence of the value of the property in question. The proper method of proving such value is by the testimony of witnesses based upon their knowledge of the subject.

2. WITNESS-PLAINTIFF CANNOT CROSS-EXAMINE HIS OWN.

The plaintiff, in attempting to prove the value of such property, has no right to cross-examine his own witnesses by asking him to explain in detail the reason for his opinion as to such value.

APPEAL from judgment entered on verdict after trial at circuit.

N. Y STATE REP., VOL. XXXIX.

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