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the leases whether taken sepa- property caused by the spreading of a rately or together did not consti
fire set by defendant it is error to ex
clude evidence offered by defendant to tute an assignment of dower. 7
prove that there were woods so situated N. Y., 201; 2 Scribner on Dower, as to protect the fire from the wind and 2d ed., 83, 85, 253 ; 1 Washb. R. thus lessen the danger of its spreading. P., 4th ed., 274. The right of a
Evidence should, as a general rule, be conwidow to dower until it is assigned
fined to facts, and not include conclu.
sions and opinions of the witness. is a mere chose in action, which is not the subject of a sale upon exe- Appeal from judgment of Councution against her, and before as- ty Court, affirming justice's judgsignment or admeasurement is
is ment. only a claim. 2 N. Y., 245 ; 8 id., Action to recover damages sus113. To bar the dower the grant tained by plaintiff in consequence must be in fee tail, or for the term of a fire set by defendant on his of her life. Coke on Littleton, own lands whence it spread to 612.
plaintiff's lands. The parties The cases holding that where owned adjoining lands, defendant's the property is not divisible the being north and plaintiff's south of person entitled to dower may take the division line. Upon the quesa portion of the avails or the use tion of defendant's negligence there of them for a proportionate period, was a conflict of evidence. Plaindo not apply where it does not ap- tiff's land was a tract of about 50 pear that an agreement was made acres, half of which had been chopfor that purpose, or the dower duly ped over and a portion of the timber assigned according to law. To drawn away, but none of the land constitute an assignment or ad- had been brought to a condition of measurement of dower by virtue tillage. Defendant's land along of any agreement or any specific the division line was in like condiact of the party, it should be tion. At the time of the fire the clearly manifest that such was the weather was very dry, there having intention.
been no rain for the past four Judgment of General Term, weeks. Defendant's purpose was affirming judgment for plaintiff, to burn up the brush and clear his affirmed.
fallow land. The injury to plainOpinion by Miller, J. All con- tiff was the burning of some sawcur.
logs and wood piled on his land
not far from the line. Plaintiff NEGLIGENCE. EVIDENCE. gave evidence tending to show
that at the time the fire was startN. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. .
ed the wind was blowing from the
north. Defendant offered to prove John Kennally, respt., V. John
that there was on the north and Selleck, applt.
west of his clearing a large tract Decided Jan., 1885.
of growing timber. This was obIn an action for damages to plaintiff's farm jected to by plaintiff as incompe
tent, immaterial, and leading, and
SURETYSHIP. the objection was sustained. A
N. Y. SUPREME COURT. GENERAL witness who had for many years
TERM. FOURTH DEPT. been a farmer was called by defendant and testified that he was pre
Allen Benedict, applt., v. Rutson sent on the day the fire was set,
Rea, respt. that he knew the fallow in ques
Decided Jan., 1885. tion, that the wind was from the
An agreement with one of two co-obligors, northwest, and that it went down
jointly and severally bound, not to sue
him does not discharge the other obligor, about three o'clock. He was then
but the other is liable for only one half asked: “In your opinion was it proper to set fire at that time, all Appeal from judgment in favor things considered ?" The ques- of plaintiff, entered on the report tion was excluded.
of a referee. D. 11. Darrin, for applt.
Action upon a joint and several J. W. Dininny, for respt. undertaking executed by defend
Held, That it plainly bore on the ant and one Leonard S. Standing propriety of defendant's act that
under SS 1327, 1334 and 1352, Code his clearing was surrounded on two
Civ. Proc., on an appeal by one S. sides by forests, which plainly are
Miller Benedict from a judgment a great shelter to places and ob- recovered against him by plaintiff, jects to the leeward, and which the judgment declaring the debt a would render the fire unlikely to charge on real estate and decreebe blown on to the plaintiff's land. ing its sale as in foreclosure, and Defendant was entitled to prove directing him to pay deficiency if every circumstance which had the any. S. M. Benedict did not join least force as proof to meet the
in the undertaking. The General charge of negligence and to sup
Term reduced the judgment and port the reasonableness of his con
affirmed it as modified. The real duct.
estate was sold and a judgment The ruling rejecting the question for a deficiency of $8,358.96 was asked of the farmer was correct. docketed, on which an execution The witness could not be allowed
was issued and returned unsatis
. to express an opinion as to the fied.
Defendant alleges, as a defense, very fact in issue, and concerning which there was much dispute.
that before the sale plaintiff and
S. entered into an oral agreement Ferguson v. Hubbell, 26 Hun, that S. should purchase at the 250, distinguished.
sale 110 acres of the land at not Both judgments below reversed,
more than $75 per acre, and conwith costs.
vey it to plaintiff, and in considerOpinion by Barker, J.; Haight ation thereof plaintiff agreed not and Rumsey, JJ., concur; Bradley, to sue S. on the undertaking. J., not sitting
It was further alleged and found [See 20 W. Dig. 386–Ed.] that such agreement was carried Vol. 21.–No. 4.
out. The referee found, as con- ties is discharged by the creditcr clusion of law, that by the agree- the other co-surety is liable for but ment and its performance S. was one-half of the debt. 70 N. Y., discharged from all liability on the 537. Each co-surety is regarded undertaking, and that defendant as a principal debtor for his share was only liable for $1,793.12, one- of the debt, and as a surety for the half of the deficiency, for which remainder of the debt. For onesum and costs a judgment was half of this debt S. stood as prinentered for plaintiff.
cipal, and Rea, as to all the parties Cornelius E. Stephens, for applt. to the contract, stood as his surety. Charles D. Adams, for respt. Sheldon on Subrogation, $ 169, and
Held, No error. An agreement cases cited. Plaintiff being a party not to sue a sole debtor, made on to the contract was bound to rea good consideration, is not a tech- gard the rights of these co-sureties. nical discharge, but should the A surety may avail himself of any creditor be permitted to recover defense his principal may have. the debtor could recover the same Id. $ 101; L. R., 7 C.P., 372. The amount in an action for a breach agreement not to sue being a good of the agreement, and, to avoid defense to an action on the undercircuity of action, the agreement taking against S., it is available not to sue is given the effect of a to Rea as a defense to the recovery legal discharge. 2 Johns., 186; 4 of the half for which S. stood as Wend., 611; 1 Pars. on Cont., 28; | principal. Covenants not to sue Leake's Cont., 928.
are given the effect of a release to An agreement with one of two avoid circuity of action, which the co-obligors, jointly and severally law is said to abhor. There is no bound, not to sue him does not reason why the principle should discharge the other obligor, 2 not be applied to avoid the necesJohns., 207; 21 Wend., 42+; 2 sity of two additional actions inWm. Saund., 48, and notes; 1 Pars. stead of one when all the actions on Cont., 28; 2 Chit. Cont. (11 arise out of the same subject matAm. Ed.), 1357; 2 Chit. Pl. (16 ter and the damages to be recoverAm. Ed.), 363–455, but as between ed are precisely the same in the the parties to the agreement it has actions. See 2 Wm. Saund., 150, the same effect as though made and notes ; Mayne on Dam., 96. with a sole obligor.
Under the doctrine of subrogation, Harrison v. Close, 2 Johns., 445, if the whole claim should be redistinguished and explained. covered by Rea, he would be enti
The obligors, as between them- tied to enforce the agreement not selves, as between S. Miller Bene
Sheldon on Subrogation, dict and themselves, and as be- $ 95. tween plaintiff in this action and The avails arising from the sale themselves, are co-sureties. 63 N. of the farm was the primary fund Y., 245, 250; Code Civ. Proc., & for the payment of plaintiff's debt, 1334. When one of two co-sure- to which he was required to first resort and exhaust, and in doing Appeal from judgment upon the this he was bound to exercise the dismissal of a complaint and verutmost good faith towards the dict directed by the Court, and sureties, doing no act which would from an order denying motion for impair the rights of either.
new trial. Whether the agreement entered This action was brought to reinto between plaintiff and S. with- cover damages sustained by the out the knowledge of Rea in re- plaintiff in consequence of injuries gard to the purchase of the farm inflicted upon his wife through the is a defense to the whole cause of carelessness of defendant's seraction need not be considered, as vants, such damages arising from defendant has not appealed.
the loss of services of his wife, Plaintiff insists that the evidence moneys expended for necessary is insufficient to justify the finding medical aid and attendance upon of the referee that plaintiff agreed her during her illness, and for exnot to sue S. in consideration that penditures in the employment of he would purchase the farm and one or more persons to do the serconvey it to plaintiff. The only vice which she did for him. The witnesses upon this question are action was not commenced until plaintiff and I. T. S., who contra- the expiration of more than three dict each other. The subsequent years from the time plaintiff's wife transactions between the Stand- received the injuries which formed ings and plaintiff in respect to the the basis of his demand ; and, upon farm corroborate the evidence of the trial, such fact being conceded S., and we think the finding should and the statute of limitations havnot be disturbed.
ing been set up as a defence, the Judgment affirmed, with costs. Court dismissed the complaint and
Opinion by Follett, J.; Hardin, directed a verdict for the defendP. J., and Boardman, J., concur. ant upon the ground that the ac
tion was controlled by $ 383 of the LIMITATIONS. HUSBAND
Code of Civ. Pro. and should have AND WIFE.
been brought within three years.
J. H. Whittlegge, for applt. N. Y. SUPREME COURT. GENERAL
Thornton, Earle & Kiendi, for TERM. FIRST DEPT.
respt. Peter Groth, applt., v. Thomas J. Washburn, respt.
Held, That this was not an ac
tion to recover for a personal inDecided Jan. 9, 1885. An action by a husband to recover damages stated as an element only of plain
jury. That a personal injury was for the loss of services of his wife, caused by a personal injury to her, inflicted
tiff's case, and by which damages through carelessness on the part of defen- resulted to which plaintiff was dant, is not an action to recover for a per- subjected. That he was not to be sonal injury, but is one to recover damages for an injury to property and is not compensated in this action for the barred by the statute of limitations until personal suffering of his wife, or the expiration of six years.
for any loss occasioned to her by
diminution of her capacity in any ly fitted a frozen track near the part of respect, or any disability created the house where entrance was effected by the effect of the injury sustain
and he was shown to have been in posses
sion of an ax about the time of the murder ed upon her health, which would
and thereafter, in spite of his denial. His necessarily enter into an award of
story of his whereabouts on the evening damages for the personal injury of the day before the body was found contemplated by the Code in $$ 383
was shown to be false and he was found and 3313.
in virtual possession of a tax receipt of
the deceased. Held, That the facts warThat in this action plaintiff ranted the verdict of murder in the secsought to recover for the result of ond degree. an injury to his rights, interests,
The guilt of a defendant must be establish
ed beyond reasonable doubt, not beyond a and property, 19 Hun, 3+2 ; 3
possible doubt. Den., 369; 25 How., 385 ; 19 N. Y., 464; 75 N. Y., 192; 24 Hun, Appeal from judgment on con620, and that the action was con- viction of murder in the second trolled, therefore, by $ 382 of the degree, for the killing of one Mrs. Code of Civ. Pro., prescribing six S. years as the time within which Five o'clock on March 27, 1883, such an action must be commenced. Mrs. S. was seen outside and near
Judgment reversed and new trial her house in her usual health. On granted.
the next day, about three o'clock Opinion by Brady, J.; Davis, P. P. M., as she did not appear the J., and Daniels, J., concur.
daughters of a neighbor entered the house by the back way, which
was found unfastened, and passHOMICIDE.
ing into the bed room found Mrs. N. Y. SUPREME COURT. GENERAL S. wounded unto death by a blow TERM. SECOND DEPT.
on the head which had fractured
the skull and had been produced The People, respts., v. James H.
by a heavy blunt instrument. It Riley, applt.
was evident that the premises had Decided Dec., 1884.
been entered by one acquainted S., a woman living alone, was found in her with the deceased for the purpose
house mortally wounded by a fracture of of plunder. A pane removed from the skull produced by a blunt instrument. The object of the murder was plunder. In
the window had permitted the fastthe kitchen was found a pie plate and ening of the window to be reached. crumbs of bread on the table. The defen- In the kitchen was found a chair dant was shown to have lived near the placed at the table and on the table deceased. He was arrested in a distant
a pie plate and some crumbs of town for which he stated that he had set out on the day before the killing, while
of bread. The bureau drawers and the truth was that he had left deceased's drawers of the secretary had been town about three in the morning of the opened, and though it did not apday on which she was found dead. He
pear that any money had been admitted he had been in the house and had eaten bread and pie on the day before taken, yet it did
taken, yet it did appear that some the body was discovered. His boot exact- money was found on a high shelf