USA > New York > Saratoga County > The bench and bar of Saratoga County, or, Reminiscences of the judiciary, and scenes in the court room : from the organization of the county to the present time > Part 14
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upon by a jury. A new trial was had at the January term, 1874, before Judge Joseph Potter, and a verdict was rendered for the plaintiff for $2,167.14 and costs. About this time the Court of Appeals held, in another action, that it was not necessary to allege the new promise in the com- plaint, and the defendant here rested his case.
The respective responsibilities of common car- riers and warehousemen and the point of differ- ence between the two were settled by the civil action of Emily Pelton against the Rensselaer and Saratoga Railroad Company. On the 11th of March, 1870, the plaintiff removed from Battle Creek, Mich., to Greenfield in this county. On that day she consigned her goods at the former place, securely packed and marked "Emily Pelton, Saratoga Springs, N. Y." to the Michigan Central Railroad. Prior to their arrival in Saratoga, plain- tiff called at the freight house and made inquiries but did not give her address. When the goods arrived, the agent made inquiries to find her and could not and her goods were placed in the store house which was burned May 1, without the defend ant's fault or negligence. The suit was brought to trial before Justice Rosekrans at the January term, 1871. John W. Eighmy was plaintiff's attorney, and John B. Gale the defendant's. The court held that the defendant ceased to be a com- mon carrier when the goods were placed in the store house and, as warehouseman, was not liable for their loss without negligence being proved. It
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was taken to the Court of Appeals by Mr. Eighmy, but the opinion of Judge Rosekrans was upheld. It is reported in 54 New York 214.
In the summer of 1870, James Maguire, a laborer residing in Ballston Spa, lost his cow. He sought her diligently far and near. He was advised to consult a well known local clairvoyantess who told him he would find his cow on a certain farm near the head of Ballston lake, which she described. He sought her there without success. About this time, Bernard Curley, a farmer residing near Hall's corners in Malta, in coming to Ballston Spa dis- covered a disagreeable stench, and, after search found its source to be in a well in the pasture of - Dr. James F. Doolittle in Malta, east of the Mourn- ing kil, into which Maguire's cow had fallen and (lied. He had hired her pastured in that field, but Dr. Doolittle insisted that she was a trespasser there for he had found her to be unruly and had forbidden her further pasturage in his field some weeks previous to her disappearance. Maguire brought suit in justice's court to recover her value, laying his damages at $90. On the trial he proved by several persons that if she gave the amount of milk he testified to she was worth from $75 to $100; but all agreed that if she was a jumper she was worth only her value for beef. The defendant proved that she could easily jump over a five board fence and was addicted to such freaks. He also sought to prove that she was trespassing on his farm at the time she fell in the well, which was just
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inside the road fence. Justice Maxwell rendered a judgment for plaintiff for $45 and costs, which was satisfactory to neither party. An appeal was taken to the County Court in which a new trial was had at the November term, 1871, before Judge Lester and a jury. Judge Scott was plaintiff's attorney, and L'Amoreaux & Dake appeared for the defendant. Since the former trial the defend- . ant had procured a handbill which Maguire had issued at the time the cow was first missing, in which he described her as "strayed or stolen from the plaintiff's premises in the village of Ballston Spa," and he introduced it in evidence. It proved conclusively that Maguire, at that time, did not consider her at pasture in defendant's close in Malta. The jury found a verdict of "no cause of action."
The civil action brought by Mrs. Abby P. Car- penter against John B. Hodgeman and Benjamin W. Clapp is chiefly remarkable for the fact that every attorney engaged in it, with one exception, had held the office of county judge in this county. The defendants were employed by the trustees of Saratoga Springs to remove an iron fence in front of plaintiff's residence that was claimed to be an encroachment upon Broadway. The plaintiff's attorneys were A. Pond and Judge Lester. The defendants were represented by ex-Judges Corey, Hulbert and Crane. Mr. Pond was at one time a candidate for county judge, and Judge Joseph Potter, before whom it was tried at the September
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term, 1872, had been a judge of Washington county. Judge William L. F. Warren was a witness for the plaintiff. Judgment was awarded to the plaintiff for $175 and costs.
Daniel Ackart of Schaghticoke began an action in the Supreme Court, by Elihu Butts, his attorney, against Gilbert V. Lansing and John G. Lansing for damages arising from his having had his leg broken in the defendants' saw mill at Stillwater. It was brought to trial at the September term, 1872, before Justice Joseph Potter, who non-suited the plaintiff. F. J. Parmenter for the plaintiff ; E. F. Bullard for defendants. It was held in the Court of Appeals that, as it was shown that plaintiff went to defendants' mill to give directions about the sawing of his lumber, the question of negligence should have been submitted to a jury. It was re- tried before Justice Potter in February, 1875. It was shown that Ackart stepped in front of the mill carriage and, without warning him of his danger, it was started und run against him, breaking his leg. The jury found a verdict for plaintiff for $500 and · costs. It was appealed to the Supreme Court, but the General Term, in May, 1876, following the opinion of the Court of Appeals, given in 59 New York 646, affirmed the verdict and refused leave to again carry it before the Court of Appeals.
Thomas P. Deyoe, a hackman, sued the trustees of Saratoga Springs for damages to himself, his carriage and team, occasioned by his driving into a ditch left open in Broadway, at the corner of Cir-
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cular street, on a certain night in August, 1872. The trustees, by P. H. Cowen, their attorney, an- swered that the ditch was dug by the water com- missioners created by a special act for the purpose of laying water pipes in the streets of Saratoga Springs, and that they, not the trustees, were the parties liable. A verdict was rendered for the plaintiff for $500. John Foley was the plaintiff's attorney. The judgment was sustained at General Term, which held that the trustees of villages are primarily liable as highway commissioners for acci dents occasioned by faulty streets. The doctrine of the liability of highway commissioners was long a disputed one in this state. Judge John Willard was strong in his objections to it. An action was brought before him thirty years ago in our Circuit Court for a similar case as that of Mr. De- yoe's. It was the action of Felix Benton against the trustees of Saratoga Springs, tried at the No- vember term, 1846. A jury was impanneled, and as Mr. A. B. Olmstead was opening the case to them he was interrupted by the court's remark : "I shall non-suit you on those grounds." Mr. Olmstead, wholly prepared for this digression, observed : " With all due deference for your Honor's opinion, the plaintiff relies on the justice of his cause and and will carry it to the highest court, if necessary." He then argued that if he was sustained above, it would be necessary to have a verdict on the ques- tion of damages by a jury, and that as the witnesses were now in court, it would be the better way to
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take the verdict now. Judge Willard deliberated a moment and then said he would let the case go to the jury, but directed the clerk to enter the fact that it was against his view of the law. A small verdict : viz. $150, was given for the plaintiff.
The dower case brought by Elizabeth Hart against Gilman Bush, has been a long and interesting one. I. C. Ormsby, attorney for plaintiff ; L. B. Pike, for defendant. The plaintiff, Elizabeth Hart, was once the wife of Dr. Stephen Hart, from whom, however, she had, during his life, obtained a decree of divorce, on account of his adultery. The decree was, of course, for an absolute divorce. Subse- quently the doctor died possessed of a certain farm near Bemis Heights, in this county. This farm came into the possession of Gilman Bush, and against him Elizabeth Hart brought an action to recover her dower. The action was commenced several years ago, and has been tried at the Circuit and has once been to the General Term. At the first trial at the Circuit, in 1872, before Justice James, the defendant, Bush, offered in evidence what purported to be an agreement on the part of the plaintiff, Mrs. Hart, to accept a certain sum in lieu of a dower. It was claimed by her counsel that a divorced woman was incompetent to make a valid agreement with her divorced husband. The court sustained this view and ruled out the agree- ment. The defendant appealed to the General Term, where the decision of the court below was reversed, and it was held that the contract was
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valid and binding. The case thus came back for a new trial before Judge Potter, without a jury. Mrs. Hart's counsel now changed his tactics. The Gen- eral Term having decided that the agreement was admissible, he now denied that Mrs. Hart ever executed the agreement. It was alleged that it was executed by her daughter without her consent or approval. To sustain the agreement, the defend- ant called as a witness George W. Neilson, who was the magistrate before whom the agreement was acknowledged. Mr. Neilson was positive in his recollection of the execution of the agreement by Mrs. Hart. The defense also offered in evidence the handwriting of the daughter, which exhibited a difference in the manner of spelling the first name of the plaintiff as compared with that adopted by the mother. The former spelled her name Elizi- beth, and the latter Elizabeth The issues in this action are yet undecided.
The right of a father in-law to interfere in the relations existing between his daughter and her husband and to entice her to abandon her home and seek an asylum in his house was the subject in action in the suit brought by Martin Ford against Levi Rowley Both parties were farmers in Still- water. Ford formed a runaway marriage with Rowley's daughter. About a year afterwards her mother induced her to leave her husband and return home. Rowley refused Ford permission to see his wife, and he brought this action to recover his rights. It was brought to trial at the January term,
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1872, before Justice Bockes. L B. Pike was plaintiff's attorney, ind Pond & French for the defendant. Justice Bockes refusing to non-suit the plaintiff, the father yielded and the daughter returned to her husband. It was stipulated that the case should rest in abeyance. Rowley then sold his farm and removed to the West. Mrs. Ford about two years later went on a visit to her parents and again for a time refused to return to her husband. Mr. Pike informs me that she has, however, returned to her husband, and I trust that their marital troubles are now forever hidden from the law and public notoriety. There was no proof but that Mr. Ford was a kind husband.
In the summer of 1870, Eugenie Soumet, of New York city, deposited with Wolff Brothers, pawn brokers, a case of jewelry to secure a loan of $88. Soon after, she came to Saratoga Springs and directed them by letter to send her the box by express "C. O. D." They placed the box as they had received it in the hands of defendant's agent in New York, with their bill. Upon delivery the agent handed to Wolff's' clerk a paper stating that defendant should not be held liable beyond $50. unless specially insured and so specified in the agreement. At the same time he asked the value and was shown Wolff's' bill. The clerk took the receipt or contract of Wolff Brothers, who made no exception to it. The package never was delivered to M'lle Soumet, and she brought her suit to re- cover $360.68, the alleged value of her jewelry.
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It was tried in the September term, 1872, before Judge Joseph Potter. J. W. Eighmy for plaintiff, and L. B. Pike for defendant. Judge Potter refused to charge that the writing was a contract between the parties, and the jury fou .d a verdict for the plain- tiff for the amount claimed. On appeal to the Gen- eral Term, in June, 1873, Judge Platt Potter pro- nounced the opinion of the court that by the ruling of the Commissioners of Appeals in Belger » Dins- more (51 New York 166) there was error at Circuit. It was a question of law, not of fact. That the . plaintiff was bound by the action of Wolff Broth- ers is settled by Nelson v. Hudson River Rail- road, (40 New York: 504.) A new trial was had in May, 1873, before Justice Bockes, and a verdict was found for the plaintiff for $93 and costs.
It was decided that there is no connection of church or state in any form, in passing upon the law govern- ing the question raised in the action brought by Anna E. Van Buren against the "Reformed Church in Ganzevoort" to recover services as organist from October, 1869, to April, 1871. It was tried in 1873 before Justice Bockes, without a jury. J. W. Eighmy, for plaintiff; A. Pond for defendant. After argument on motion to dismiss complaint, Judge Bockes held, 1st, that the defendant's cor- porate existence must be distinctly alleged ; 2d, that · the existence of a church as such is not recognized by our laws : 3d, that mere assumption of a cor- porate capacity is not sufficient to establish a de facto corporation ; 4th, that church music in the
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country villages and hamlets being usually gratu- itous, plaintiff's services will be presumed to have been such ; and 5th, to authorize recovery it must be alleged and clearly proved that there was an employment of plaintiff by the defendant as a cor- porate body, with a promise to pay for such ser- vices. This interesting case is reported in 62 Bar- bour 495.
On April 28, 1872, Ralph T. Darrow committed suicide at Saratoga Springs, by shooting himself. He was insured in the Excelsior Life Insurance Company for $10,000 in the name of and for the benefit of his wife, Mary E. Darrow. The insurance company refused to pay the policy on the ground of fraudulent answers regarding deceased's habits in the application, and that it was voided by his suicide. An action was brought by John R. Put- nam as attorney for Caroline E. Patrick and S. F. Terwilliger, committee of the estate o: Mary E. Darrow, a lunatic. The insurance company was represented by E. F. Shepherd and E. L. Fursman. It was tried at the January term, 1874, before Judge Joseph Potter. The jury gave a verdict for the plaintiff for $10,585.80 with five per cent allowance for costs. The verdict was appealed from and the General Term confirmed it and judgment was en- tered for $11,225.20. The point decided in this case is that the policy having been taken in the name of the wife, the husband's subsequent acts will not. vitiate it. The issue of fraudulent answers touch- ing personal habits of the party insured arose, also,
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in the action of Steenbergh against the Metropoli- tan Life Insurance Company, tried at the Septem- ber term, 1875, before Justice Bockes. Putnam & Eustis were plaintiffs attorneys, and Arnoux, Rich & Woodford, of New York, appeared for the defendant. The question was decided by a jury who found a verdict for the plaintiff for $5,000 ; the face of the policy. Concerning Mr. Putnam's management of these actions an eminent jurist writes the author in the following terms : 'I regard him as one of the best men at our bar, a sound lawyer and reliable in every place whatever. He is esteemed by the bench for his unobtrusive merit and modest and retiring, yet earnest and untiring manners."
The right of a postmaster to make and physically to enforce rules regulating the conduct of people while in the post office after their mail was affirmed in the action brought by John N. Whonhart against Benjamin F. Judson, tried at the May term, 1875, before Justice Langdon. Judson is postmaster at Saratoga Springs and had posted a notice in the post office forbidding smoking. He soon after- wards found Whonhart with a cigar in his mouth in the post office. He asked him to go out, or put out his cigar. Whonhart refused and Judson put him out of the building. He began an action for assault and battery in the Supreme court with P. H. Cowen for his attorney. Mr. Judson secured the services of L. B. Pike in his defense. The jury found a verdict of "no cause of action." At the .
11
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close of this term the deaths of Hon. W. L. F. Warren and Col. William T. Odell, former district attorneys of this county, were announced by Judge Lester and J. S. L'Amoreaux. Suitable resolutions were adopted and the court adjourned.
In the autumn of 1874, Mrs. Elizabeth Chipman, then lessee of the Mansion House, Saratoga Springs, began actions against nearly all of the landlords of the hotels in that village for damages alleged to have been sustained by her by reason of their turning their sewage into the creek which runs in front of the Mansion House, causing thereby a great stench so that her guests left in consequence to her great damage. The suit brought by her against John Palmer, the owner of a boarding house on Circular street, was tried at the September Circuit, 1875, before Justice Bockes. Messrs. Frisbie & Hulett were the plaintiff's attorneys. L. Varney and Judge Lester defended the hotel keepers in the person of Mr. Palmer, this being a test suit. The jury assessed Mr. Palmer's share of the damage did to Mrs. Chipman to be five dollars.
A history of the courts of this county would be incomplete without the details of a "horse suit." The late Judge Hay used to remark that it required more legal acumen to manage the details of an action wherein an equine quadruped was the "bone of contention " than it did to master the intricacies of an ejectment suit involving the settlement of conflicting patent lines. To fill the void the action brought by Mervin Adams against James D. Le
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Roy, which was tried at the September Circuit, 1875, before Justice Bockes, will be cited. It also, has the merit of confirming the opinion once ex- pressed by Ex-President Lincoln that "the one thing which the Almighty can never foreknow is the verdict of a petit jury." LeRoy is a merchant at Ballston Spa, and Adams a livery keeper at Saratoga Springs. In November, 1874, James H. LeRoy, a son of the defendant, went to plaintiff's stables and made a contract to take one of the lat- ter's horses for its keeping during the ensuing win- ter, to use it as he required in his business. Young LeRoy was then past his majority. He put the horse in his father's stable, and it was occasionally used by both, the father at one time driving it to Northampton and back. About the first of Janu- ary the horse became very lame and unfit for use. A tender was made of it to Mr. Adams, and he refused to accept. But, instead, he brought suit in the Supreme Court for its value alleging it to be $300. Joseph W. Hill was his attorney. Mr. Le- Roy defended the action and secured the services L'Amoreaux & Dake. Pending the action the horse was "turned to grass," and while in the pas- ture his forward hoofs dropped off. On the trial Adams testified that he let the young man have the horse as the agent of his father. LeRoy, senior,
testified that he told his son not to get the horse, and LeRoy, junior, testified that he told Adams he wanted the horse for his own use, and corroborated his father's statement. The defendant proved by
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livery men and farmers that it was an old worn out livery horse, not worth to exceed $75. He also proved by unimpeached veterinary authority that the horse's hoof disease had been of at least two year's standing. Judge Bockes charged the jury directly upon the doctrine of bailees, that the defendant was only required to use the same care as a prudent man would of his own property, and that the preponderance of testimony was to the. effect that the defendant never was a bailee of plaintiff's horse. The jury found a verdict for the plaintiff for $175 and costs. This is the more remarkable from the fact that four of the jury went to see the horse in the pasture, and one of them, a horseman, too, said publicly that the animal had been worthless for at least two years.
At the February term, 1876, held by Justice Joseph Potter, was tried the civil action of William H. Clement against Mark M. Cohn. Clement, who lives at Morrow, Ohio, owns a block on the east side of Broadway in Saratoga Springs, occu- pied partly as stores and partly as dwellings. Cohn, hired a store of Clement's agent without any reservation. Clement, afterwards, claimed that there was an alley or entrance way through the cellar to tenements in the rear. Mr. Cohn asserted that he rented and occupied the cellar as a part of his store. Hence this suit. The plaintiff was rep- resented by A. B. Olmstead, and the defendant by Jolin Foley at the trial. Judge Potter held that a lease without reservation extends from the center
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of the earth to the outer edge of gravitation, and directed a verdict for defendant and judgment was thus entered.
CHAPTER XV. THE LANSING-RUSSEL SUIT IN EQUITY.
This suit which was commenced by a bill in the Court of Chancery and ended in the Supreme Court, in equity, forms a connecting link between the two great epochs in our judicial history, and attracted at the time great attention from the issues involved, which cast a cloud over a family widely known in the state and moving in the first circles of social, legal and political society ; also, for the great number of distinguished counselors engaged in it at its various stages. It was entitled "Derick C. Lansing and others against David Russell and Alida L. Russell his wife." The plaintiff and Alida Russell were the children of Cornelius Lan- sing, formerly a wealthy citizen of Lansingburgh, who died April 23, 1842, aged 91 years. He had, on September 24, 1836, made a will, and annexed a codicil to it July 10, 1837. By its terms one half of the income of his property was to be equally enjoyed by his children during their lives, and after their deaths the body of his estate was to be divided among his grand children, per stirpes. After his death, his son-in-law, David Russell, at the time an attorney in practice at Salem, Wash- ington county, and for six years a representative
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in congress, caused to be recorded two deeds pur- porting to have been executed by the decedent November 30, 1841 ; one deeding his farm in Salem to David Russell, and the other his farm in Lan- singburgh, hfs homestead, to Alida L. Russell. The signing of the deeds was witnessed by Hon. Wil- liam A. Russell, son of David and Alida.
The plaintiffs filed their bill in Chancery in 1844, praying to have the deeds cancelled and set aside, charging that the signatures of Cornelius Lansing was not affixed by him to said deed, or, if done by his hand, it was by the connivance or compulsion of David Russell, or some person or persons a ting under his directions. After the cause was put at issue by a replication on the part of the plaintiffs' to the defendants' answer, Chancellor Walworth awarded the following issues : "Was Cornelius Lansing legally incompetent, by reason of unsound- ness of mind or mental incapacity, to execute a deed at the time the two deeds in question purport to have been executed ? Were the said deeds falsely made, forged or counterfeited, or was either of them falsely made, forged or counterfeited ? Were the signatures and marks purporting to be made to said deeds made by said Cornelius Lansing, or was the signature or mark to either of said deeds, procured and obtained by compulsion or by the fraudulent management had by the imposition of the said David Russell and Alida his wife, or either of them, or by any other person by the pro- curement of said David Russell and Alida his wife,
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or one of them ? It was acknowledged by both parties that at the times of the making of the will and codicil Cornelius Lansing was of a sound mind.
These issues, involving somewhat similar features to those in "Esau versus Jacob," recorded in Holy Writ in Genesis xxvii, were directed to be tried in the Dutchess county circuit, and were accordingly brought to trial at Poughkeepsie, November 21, 1845, before Judge Selah B. Strong. The plaintiff's' attorneys and counsel were J. E. Taylor, C. L. Tracy and David Buel of Troy, B. Davis Noxon of Syra- cuse, and John Van Buren of New York. The defendant David Russell appeared in person with such aid as could be furnished by those bright luminaries of the Washington county bar, Samuel and Cyrus Stevens, and, as if he knew the des- perate nature of his suit, he had also secured the greatest American jury lawyer of the century, Dan- iel Webster, then in the proud zenith of his legal and senatorial fame. The jury found a verdict for the defendants on all the issues. This is said to have been owing to the ingenuity and tact of Web- ster. He possessed himself of the family history of each juror and then, seriatim, he addressed each one by name in the most familiar manner, and drew an illustration from their own fireside stories applicable to the issues, and asked them how they would have acted under similar circumstances.
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