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Edward McKinley and Moore & Moore, for app'lts; Porter & Walts, for resp't

HARDIN, P. J.-Whether there was a contract existing between the plaintiff Edwards and the defendant in respect to the matters referred to in the complaint, was a question of fact. There was a great variety of evidence given bearing upon the question; there was a conflict in the evidence; and after looking into the evidence and bearing in mind the rule laid down by the court in Roe v. Roe, 14 Hun, 613, that “the findings are not conclusive, but the whole evidence is open to examination by the appellate court," we are of the opinion that we ought not to disturb the conclusion of fact reached by the referee. We are not able to say that the findings are not supported by evidence, nor that they are not in accordance with the strength and weight of the evidence.

(2) It seems that the common council of the defendant, on the 26th of April, 1882, after the litigation in this case had been quite extensive, passed a resolution to the effect that its mayor was instructed to settle the claim. It is found as a fact that the resolution" was without consideration other than that payment pursuant to it would have relieved the defendant from further defense of this action." While there were some steps being taken to carry out the resolution, among others, an attempt to adjust the costs, it is found as a fact that one of the attorneys stated and declared that "he would not accept the proposition of the resolution and proceedings mentioned in the 13th finding herein, but go on with the trial of the action, which was accordingly done." We see nothing in the resolution which should be held to conclusively establish the liability of the defendant. Our attention is called to Calanan v. McClure, 47 Barb., 206, which is to the effect that the "admissions of a party, whether of law or of fact, which have been acted upon by another, are conclusive against the party making them, as between him and the person whose conduct he has influenced. And this, whether the admissions are made in express language to the person himself, or are implied from the open and general conduct of the party.” We see nothing in the case which aids the appellants.

(3) Defendant offered in evidence an article published in the Morning Dispatch, bearing date September 19, 1874, over the signature of the plaintiff, John Edwards, and it was conceded that the printed matter is a copy of the letters published in the newspaper “and left there by Edwards for publication.” It was also conceded that Edwards did see at time of publication the copy as printed apparently over his signature.” This was objected to as incompetent and immaterial, among other grounds. The objections were overruled and the article was received in evidence, and the article is set out in the sixth finding of fact made by the referee. We think the evidence was properly received as bearing upon the disputed questions of fact arising in the course of the trial.

Having found no erroneous rulings made by the referee during the progress of the trial, and being of the opinion that his conclu. sion of law, based upon the findings of fact made by him, is correct, we must sustain the judgment entered upon the report of the learned referee.

Judgment affirmed, with costs.
MARTIN and MERWIN, JJ., concur.

!

EMILY HEMMENS, formerly Emily Halstead, App'lt, v. EDWARD

B. NELSON, Resp't. *(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. SLANDER-PRIVILEGED COMMUNICATIONS.

Defendant, who was the principal of an institution for deaf mutes, complained to the executive committee of the board of trustees that plaintiff, a teacher therein, had sent to his wife an obscene circular, and plaintiff was thereupon discharged. Held, that his communication to the executive

committee was a privileged one. 2. SAME-DIRECTION OF VERDICT.

On the trial of the action for slander, plaintiff testified from her knowl. edge of defendant's handwriting that the circular was sent by him, based on the supposition that the superscription on the envelope was in his handwriting. "Defendant denied that he had anything to do with the origin or sending of the envelope or circular, and other witnesses testified that none of the writing was his. Held, that the court did not err in directing a verdict for defendant.

APPEAL from a judgment entered upon a verdict directed at the Oneida circuit, and from an order denying a motion for a new trial. The action was commenced in May, 1878, and has been tried at the circuit five times, and has been before this court on three former occasions. See 24 Hun, 395; 36 id, 149 ; 13 N. Y. State Rep., 211. At the trial next preceding the one now here for review, a verdict was rendered for the plaintiff of $500, which verdict was, by the trial justice, set aside and an opinion delivered which is reported in 15 N. Y. State Rep., 790. At the trial in March, 1889, at the close of the evidence, the circuit judge directed a verdict for the defendant, and to review that decision this appeal is brought. The action was for slander.

Scripture & Backus, for app'lt; John D. Kernan, for resp't.

HARDIN, P. J.—Upon the first appeal, 24 Hun, 398, Smith, J., in speaking for his court said: “The case falls within the rule that a communication, made bona fide and without malice upon any subject matter in reference to which the party communicating has a duty, is privileged if made to a party having a corresponding duty, although it contain criminatory matter which without this privilege would be slanderous and actionable. Thorn v. Blanchard, 5 Johns., 508; Howard v. Thompson, 21 Wend., 319; Cook v. Hill

, 3 Sandf., 341; Harrison v. Bush, 32 Eng. L. & Eq., 173."

When the case was before us on the second appeal, 36 Hun, 149, Follett, J., in speaking for the court, said: “When the facts and circumstances on which an accusation is made are undis. puted, the question of probable cause is a question of law for the court. The plaintiff's theory was, that defendant sent or procured

N. Y. STATE REP., VOL. XXXVI. 114

the communication to be sent for the purpose of accusing the plaintiff and procuring her discharge, and unless this theory was established as a question of fact the defendant was entitled to a verdict. Unless the defendant sent or procured this communication to be sent, we think the defendant had probable cause for the accusation. This was the judgment of the executive committee, who must be presumed to have been fair-minded men of intelligence, desiring to discharge their duties to the public and persons interested."

When the case was here on the third appeal, 13 N. Y. State Rep., 214, in the course of the opinion delivered, it was said: “ We should have been better satisfied with the course of the trial if the learned judge had said to the jury, 'as a matter of law, that the defendant had probable cause, and that the communication was privileged, if they found he did not send or cause to be sent the matter, even though they found that the plaintiff did not send or cause the same to be sent."

Since that decision was made, the court of appeals, in Byam v. Collins, 111 N. Y., 143; 19 N. Y. State Rep., 581, has held, viz.: “Privileged communications are exceptions to the general rule which implies malice in a libellous publication and infers some damage, it rests with the party claiming the privilege to show that the cause is brought within the exception. The exception covers cases where a communication is made bona fide upon any subject matter in which the party making it has an interest, or in reference to which he has a duty, legal, moral or social, which may fairly be presumed to have led to the communication, when made to a person having a corresponding interest or duty." And it was further held in that case that when upon the trial it has been held as a matter of law that the communication was privileged "the burden rests upon the plaintiff to establish that it was maliciously made;" and upon the fourth trial of this case it was held at the circuit that whether the charge was maliciously made was a question of fact to be determined by the jury in accordance with the doctrine laid down in Byam v. Collins, supra. After the jury had found a verdict in favor of the plaintiff for $500, a motion for a new trial was made, and the learned judge who presided at the trial granted the motion, and held that the "jury must have misconstrued the evidence or failed to give it its legitimate effect in arriving at the conclusion they did, and that the verdict being clearly against the weight of evidence, it is the duty of the court to set it aside and grant a new trial.” 15 N. Y. State Rep., 790. Upon the trial now brought in review, the trial judge approved of the opinion delivered in deciding the case as appears reported in 15 N. Y. State Rep., 790, and added thereto his own conviction upon the evidence produced, “that the verdict should be directed for the defendant."

We are inclined upon a full consideration of the evidence now in the appeal book, and in view of the previous decisions in the case, to say that the communication made by the defendant to the executive committee was privileged.

(2) Upon the trial, the plaintiff stated as a witness an opinion based upon her knowledge of the handwriting of the defendant, tending to the conclusion that the envelope and circular were sent by the defendant, based upon the supposition that the superscription and writing were in the handwriting of the defendant. It was conceded upon the trial by the plaintiff “that none of the writing now on the paper is in Mr. Nelson's handwriting." Con. siderable evidence was given by witnesses who expressed the opinion that none of the writing upon the envelope or circular was in the handwriting of the defendant, besides his own testimony is fully and forcibly to the effect that he had nothing to do with the origin or sending of the envelope or circular contained therein. After a careful review of the evidence, we are constrained to say that no error was committed by the trial judge in refusing to submit an inquiry to the jury as to whether or no the communication was sent by the defendant. It may

be said there was a scintilla of evidence to establish such a proposition. We think it appropriate, upon this aspect of the case, to apply the rule laid down in Dwight v. Germania Life Ins. Co., 103 N. Y., 343; 3 N. Y. State Rep., 115, where it was held, viz. : "If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, it is the duty of the court to direct a verdict. It is not . sufficient to authorize a submission of the fact to the jury that there is a scintilla of evidence,' a mere surmise to the contrary." And also the rule as stated in the language of Judge Allen in Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y., 356, that: “It is not enough to authorize the submission of a question as one of fact to the jury that there is some evidence.' It was for the trial judge to say, “not whether there is literally no evidence or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established." In Improvement Co. v. Munson, 14 Wallace, 442, the rule is stated as follows: “That in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof rests."

We think the views expressed by Kennedy, J., in 15 N. Y. State Rep., 790, upon the questions now under consideration are quite appropriate and applicable.

We are, therefore, of the opinion that the verdict ought to stand.

Judgment and order affirmed, with costs.
MERWIN, J., concurs; MARTIN, J., not voting.

JABEZ FURNER, App'lt, v. OTIS SEABURY, Resp't.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. EASEMENT—RIGHT TO TAKE WATER FROM SPRING_LOCATION.

Although a grant of an easement to take water from a spring is indefinite as to the location of the pipe, yet where the parties to it have made a prac

tical location by laying the pipes in a track assented to by them, that por

tion of the grant becomes definite by reason of the acts of the parties. 2. SAME-RIGHTS OF GRANTEE OF EASEMENT.

Defendant, by a written agreement, in consideration of the plaintiff's grantor conveying water from a spring on defendant's land to his meadow by a three-fourths inch pipe, to be laid under ground of sufficient depth to preserve it from injury by frost, etc., conveyed to plaintiff's grantor all the water that could be conducted through a half-inch pipe to be inserted at the termination of the three-fourths inch pipe, and the right to all the water that can run through a half-icch pipe, to be kept in repair at the cost of plaintiff's grantor. Held, that plaintiff had the right to repair the spring and put it in such condition as to enable him to receive the quantity of water specified, and that defendant had no right to disturb or interfere with such repairs. APPEAL from a judgment entered on the 2d day of June, 1890, in Madison county, upon a decision made at special term in that county on the merits, dismissing the complaint and dissolving the injunction, which judgment also provided, viz: "That the plaintiff be, and he is hereby directed to fill up the excavation made by him at the spring mentioned and described in said decision, on the 17th day of April

, 1890 ; and to replace in said spring a box similar to the one taken therefrom by him at the time he made said excavation, and to restore said spring to the same condition it was in at the time he commenced making said excavation on the said 17th day of April, 1889.” On the 20th day of August, 1852, the defendant owned a farm in the town of Hamilton, and he has remained the owner and in possession of the same ever since. At that date William Colson owned a farm adjacent to the defendant's, which has since been acquired by the plaintiff with all the rights and appurtenances thereunto belonging. On the 20th day of August, 1852, said Colson and this defendant executed an instrument under their respective bands and seals which was by them duly acknowledged on that day and recorded on the 10th of January, 1855, which contained the following language: "Witnesseth: Whereas, the said parties at the date of the ensealing and delivery of these presents are respectively seized in fee of and in two contiguous tracts, pieces or parcels of land with the appurtenances in the town of Hamilton, aforesaid, and, whereas, there is a spring of water situated therein and upon the land of the party of the first part; said spring is situated west from the dwelling house of the party of the first part, it being nearly in the center of the farm owned by the party of the first part

, which spring is owned by the party of the first part. Now, therefore, this indenture witnesseth, that the party of the second part, for and in consideration and agreement on the part of the first party, that he, the party of the second part, hereby agrees to convey the water from said spring in three-fourths inch lead pipe which is to be laid under ground of sufficient depth to preserve said pipe from injury by frost or other causes. The party of the second part is to carry said water as above described into the meadow of the party of the first part, in consideration of the foregoing agreement on the part of the party of the second part, the party of the first part has hereby granted, bargained, sold, released and confirmed, and by these presents does grant, bargain, sell, release and

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