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accept an order in favor of the Jackson Architectural Iron Works for the sum of $2,879.10, with interest, of which $800 should be payable when Mathesius and Anderson became entitled to the fifteenth payment according to the terms of their builder's loan contract, and the balance when they became entitled to the sixteenth payment according to the terms of the said contract, and providing that the mechanic's lien should be postponed to the payments of such acceptances and of other acceptances provided for in the agreement

The building was not completed by Mathesius and Anderson, nor were the fifteenth and sixteenth payments reached, and on April 3, 1889, the Jackson Architectural Iron Works entered into another agreement reciting that Lipman and Cohen had contracted to lend Mathesius and Anderson the further sum of $10,000 to be secured by a mortgage on the premises, that sum to be used in putting the trim upon the building and the plumbing work, and agreeing that Lipman and Cohen should pay to Mathesius and Anderson the full sum of $55,000 and $10,000, less the amount of $2,879.10 and interest, to be paid to the Jackson Architectural Iron Works; provided, however, that such payments and advances, so far as secured by the mortgage of $55,000, should be made for work and materials to be done and used in the construction and building of the houses and for no other purpose; so far as such advances were made upon the security of the mortgage for $10,000 they should be used for the trim on said buildings and the plumbing work. And it was agreed that the said pay: ments and advances made and to be made on the security of said mortgage of $55,000 and $10,000 might be deemed and taken to be secured by the mortgages to the same extent and in the same way as if the payments had been made prior to the filing of the mechanic's lien of the Jackson Architectural Iron Works.

It now appears that the whole amount of $55,000 provided for by the first mortgage to Lipman and Cohen has been advanced for work and materials to be done and used in the construction and building of the houses. It also appears that some advances have been made upon the $10,000 mortgage, and that Mathesius and Anderson have never become entitled to the fifteenth or sixteenth payments due under their building contract.

The result of these agreements under this state of facts appears to me plainly to be that the Jackson Architectural Iron Works postponed their lien to all advances made for the completion of the building under the $55,000 mortgage, unless Mathesius and Anderson became entitled to the fifteenth and sixteenth payments before the $55,000 had been fully advanced, and the plaintiffs are, therefore, entitled to a lien upon the mortgaged premises for the full amount of $55,000 and interest, in priority of the claim of the Jackson Architectural Iron Works which was postponed by the two agreements mentioned.

Henry R. Beekman, for app'lt; Ephraim A. Jacob, for resp'ts.

BISCHOFF, J.—The only question litigated between the parties to this appeal was that of the relative priority of the mortgage lien of plaintiffs, and the mechanics' lien of appellant, the Jackson Architectural Iron Works.

The mortgage was executed to the plaintiffs to secure future advances to the extent of $55,000, to be paid in instalments, under a building loan agreement between the plaintiffs and the mortgagors. On September 25, 1888, when plaintiffs had advanced upon their mortgage $400,37.34, the Jackson Architectural Iron Works filed a notice of their lien in the office of the clerk of the city and county of New York. Plaintiffs availing themselves of their right to do so under the building loan agreement above mentioned, because of the filing of said notice of lien, refused to make additional advances. Thereupon an agreement was entered into between plaintiffs, the mortgagors and the Jackson Architectural Iron Works, by which plaintiffs agreed to make further advances, and the appellants agreed to subordinate their lien to such advances. This agreement was entered into in November, 1888. On April 3, 1889, a further agreement was entered into among the same parties, pursuant to which the lien of the Jackson Ar. chitectural Iron Works was still further subordinated to advances, which plaintiffs agreed to make upon a second mortgage. Upon the hearing before the referee no conflict of evidence appeared, the case being disposed of upon the testimony of plaintiff Lipman, and documentary evidence consisting of the three agreements herein before mentioned; and the question of priority determined by the referee rested exclusively on the construction of these agreements.

The opinion of the referee, which forms a part of the record before us, refers to each of these agreements, and a careful examination of them convinces us that the learned referee has not misapprehended their effect, and that no error was committed in his construction thereof.

Accepting the construction as made by the referee, his report and the findings and conclusions stated therein are fully supported by the evidence, and the exceptions thereto furnish no ground for reversal.

The judgment appealed from should be affirmed, with costs. DALY, Cb. J., and PRYOR, J., concur.

David P. FRANCIS, Resp't, v. THE ROME, WATERTOWN &

OGDENSBURG R. R. Co., App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. VERDICT-WHEN WILL NOT BE DISTURBED.

Where the plaintiff's character for honesty, faithfulness and integrity are involved, and there is a conflict in the evidence, an appellate court will not interfere with a verdict in his favor, although defendant had the

greater number of witnesses. 2. MASTER AND SERVANT-SERVICES—CROSS-EXAMINATION OF WITNESS.

In an action by a railroad conductor for wages due at the time of his discharge, where the defense was that he had not accounted for all moneys received, one of defendant's witnesses testified that he did not buy a ticket be

N. Y. STATE REP., VOL. XXXVI. 94

cause he got on for the purpose of paying a fare. Held, that he might be asked on cross-examination if he did so for the purpose of reporting that

he had accomplished something. VERDICT for the plaintiff at the Oneida circuit for $118.53. Motion for a new trial was made upon the minutes, “on the ground that the verdict was against the evidence.” The motion was denied. The appeal is from the judgment and from the order.

Beardsley & Beardsley, for app'lt; John W. Boyle, for resp't

HARDIN, P. J.-Plaintiff for several years was a conductor in the employ of the defendant. He was discharged. At the time of his discharge there was due him a balance for wages of $114.50. No dispute was made at the trial of the amount of his wages remaining unpaid. On the trial the court held, on the motion of the defendant, that it had the affirmative of the issue, and thereupon the defendant called the plaintiff as a witness, and proved the fact that he had, as a conductor, been in the employ of the defendant, and that while in such employ in the month of September he operated, as such conductor, a train in behalf of the defendant running between Watertown, Sackett's Harbor and Carthage, and that he made his report of the moneys collected on the 10th day of September and on the 14th day of September, 1888, to the auditor of the defendant, and the amount of moneys which he delivered called for by his report, and his habit to use duplex tickets, and certain other facts and circumstances attending the details of his employment. The defendant put upon the stand five witnesses who had been in the employ of Robert A. Pinkerton as detectives, who had passed over the road and in the cars under the care and supervision of the plaintiff as conductor, and they stated facts and circumstances tending to establish that the plaintiff had received moneys on the occasions mentioned by the witnesses for fares without properly using duplex tickets, and which fares were not properly, if at all, in

ded in the reports and payments made by the plaintiff to the defendant while so in the discharge of his duties as such conductor on the days in question. After this testimony was given, the plaintiff was recalled in his own behalf, and testified, among other things, viz.: “I have heard the operatives testify as to the trains of September 10th and 14th. (Exhibit 1 shown witness, and he says :) This is a report for September 10th ; I did not collect any fares on that train represented by that report which is not upon the report and accounted for to the company; all the fares I collected are on there. (Looking at Exhibit 2, witness says :) I did not col. lect any fares from passengers on that train on the 14th of September which are not represented upon that report and accounted for to the company; I made out those reports on the day the report is dated on; made them out in the afternoon; sometimes made them out on the train, and sometimes immediately on arrival at the end of the trip and then sent them in; I couldn't say outside of the report as to any particular fare or fares collected on the 10th of September from Carthage up to Watertown, nor whether passen

*

gers refused to take the duplex tickets I presented to them." In the course of his charge to the jury, the learned trial judge said: “The defense is based upon the proposition that the plaintiff had not fulfilled the contract on his part

, and, therefore, is not in a position to demand a compliance with the contract by the defendant. Among other things, the contract between the parties impliedly was that the plaintiff should deal honestly with the defendant; should pay over to it all the money he collected for it for the fare of passengers, and the defendant alleges that he violated the contract in this respect, and, therefore, having violated it himself, he is not in a position to call upon the court or a jury to enforce the performance by the other side, the defendant. That proposition, gentlemen, is true. The plaintiff cannot come into court asking its assistance in recovering upon a contract or enforcing compliance with a contract if it appears in the case that he, himself, bas failed to fulfill the contract upon his part in a material respect. There is no difficulty, therefore, about the law. The only question of fact in this case is whether the plaintiff did, in the respects alleged. violate or fail to keep or perform the contract upon his part

The question of the credibility of these five witnesses, gentlemen, is a question entirely for you. You have the duty of determining whether they are testifying truly and honestly, or whether they have come here to testify untruly and to testify to things that they did not see. It is a question also for you whether, if they are honest, it is probable or likely that they are mistaken as to the facts that they testify to.

* The whole question as to whether they testified truly, or as to whether they are mistaken as to what they testified to, I leave to you without any comment whatever. You have seen the men. They are concededly detectives, sent out for the purpose of ascertaining whether or not this conductor was honest and was dealing honestly with the company.” We think the question of fact was one appropriate for the jury. While there is a direct conflict in the evidence, and while in numbers of witnesses the defendant has the greater, we do not feel called upon to disturb the verdict which has been rendered by the jury upon the vital issues of fact presented by the evidence. Plaintiff's character for honesty, faithfulness and integrity was involved. If the defense sought to be established by the defendant was made out, the plaintiff had been guilty of a breach of duty; breach of his contract of employment in that he had been dishonest, unfaithful to his obligation to the defendant and had embezzled from the defendant its funds. When such questions are involved, and there is a conflict in the evidence, it is not in accord with the usual practice of an appellate court to interfere with the solutions of such questions by disturbing the verdict of the jury thereon. In Wright v. Saunders, 65 Barb., 216; S. C. affirmed, 3 Keyes, 223, it was said by the court, viz : “Although four witnesses against one is a very great preponderance, yet it is the right of a referee to believe the one and disbelieve the four. Having seen and heard the witnesses, he is much better able to determine the amount of credit to which they are respectively entitled than the court can be.” Applying the rule laid down in the purpose

that case to the case before us, we are constrained to allow the verdict to stand. Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y., 602; 11 N. Y. State Rep., 32. In Timoney v. Hoppock, 13 N. Y. State Rep., 568, it was said by the general term of the first de. partment, viz: “When the evidence is in conflict the question of fact is properly for the jury, and when controversies are distinguished by diverse statements the disposition made by the jury of a disputed fact must prevail and is rarely disturbed."

(2) When defendant's witness Murphy was being cross-examined' he stated, viz: “I did not buy a ticket because I got on for

of paying a fare.” Thereupon he was asked “For the purpose of reporting that you had accomplished something ?" This question was objected to by the counsel for the defendant, who said: “It is a question susceptible of a double meaning. Thereupon the court remarked: “Well, it is cross-examination, I will allow it;" thereupon the defendant took an exception. The cross-examining counsel then propounded to the witness, viz: “Is that so, for the purpose of reporting that you had accomplished something ?" The witness answered, viz.: "Well, I got on for the purpose

;" and later on the witness answered “Yes, sir."

We are of the opinion that the exception presents no error. We think the discretion of the trial judge was not abused in allowing the cross-examination to take place in the manner in which the question we have stated shows it was conducted, and that the witness did not deliver any evidence which was improper in the course of the cross-examination.

We think the verdict and order and judgment must stand.
Judgment and order affirmed, with costs.
MARTIN and MERWIN, JJ., concur.

In the Matter of the Application of LEGRANGE E SCRAFFORD

for a Writ of Habeas Corpus. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. EXTRADITION-APPEAL.

An order made in habeas corpus proceedings, holding that the rendition warrant of the governor is invalid and discharging the defendant, is appeal. able, and such appeal is properly taken by the attorney general by service

of the notice of appeal on the clerk and the attorneys for the defendant. 2. SAME-RENDITION WARRANT.

In the absence of the papers on which the warrant was granted, the warrant alone can be considered, and recitals in such warrant that the demand for extradition was accompanied by the papers required by the statute of the United States to justify the surrender, which showed that the defendant had been “duly charged with said crime and with having fled from said state and taken refuge in the state of New York," and that the

Pepers were duly certified, are sufficient to sustain its validity. 3. SAME-MISNOMER.

A mistake in the spelling of the defendant's name furnishes po ground for a discharge where the pronunciation remains the same, and it is apparent that the defendant was the person intended. APPEAL from an order made by Hon. W. T. Dunmore, special county judge of Oneida county, August 20th, 1890, declaring a

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