Volume 71 — New York State Reporter

<p>A motion to revive the action in the name of the personal representatives of plaintiff.</p>

<p>This was a motion for a reargument.</p>

<p>Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at special term dismissing the complaint.</p>

<p>A majority of the court did not concur in the prevailing opinion.</p>

distribution of the estate of Arthur E. Bateman, who had made an assignment to John A. Grarver for the benefit of his creditors. The claim, as presented to the assignee, was for the value of certains bonds alleged to have been delivered to Bateman to secure the performance of certain conditions in a contract, which conditions had been performed and delivery of said bonds demanded •by claimant prior to the assignment.

<p>Appeal from, judgment of the general term of. the supreme court in the fifth judicial department, entered upon an order, which affirmed as to the defendant Gould and reversed and granted a new trial as to the defendant Bowen an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at special term.</p> <p>This action was brought by the plaintiff to enforce the specific performance of a contract made with the appellant, Mrs. Gould, for the sale to him of a large tract of land in the city of Rochester. The land was owned by Mrs. Gould and her brother, Augustus C. Bowen, in equal undivided interests. The agreement for its sale was dated the 2oth day of February, 1890, and was expressed as being between Augusta B. Gould, of Rochester, N. Y, and Augustus 0. Bowen and Jennie M. Bowen, his wife, of Michigan Bluffs, California, by said Augusta B. Gould, their “ attorney in fact,” as parties of the first part, and Charles H. Palmer, of the city of Rochester, N. Y., as party of the second part. It was expressed therein that the parties of the first part “ have sold, and hereby agree to convey to the party of the second part,” a certain tract of land, describing it, containing about forty-six acres, for the sum of $50,000, to be paid in the manner therein mentioned. The parties of the first part were to execute and deliver to the party of the second part a good and sufficient warranty deed of the premises, at a time and placed specified. A provision of the agreement made the conditions and agreements on the part of the parties of the first part binding on them, jointly and severally. It was signed on the day of its date by the. plaintiff Palmer, and by the defendant Augusta B. Gould, who, also, signed the names of Augustus 0. Bowen and Jennie M. Bowen to it, as their “attorney.” The trial of the action resulted in an interlocutory judgment, directing the defendants Bowen and Gould to perform the contract and to convey the property to the plaintiff. As to the defendant Jennie M. Bowen the complaint was dismissed, on the ground that her name was signed without authority. On the appeal by the defendants from the interlocutory judgment, it was reversed at the general term as to the defendant Augustus 0. Bowen, on the ground that the contract had been executed in his name, also, without authority. The decision of the general term reversing the judgment as to Augusus 0. Bowen was appealed from to this court, where it was affirmed, and judgment absolute ordered for the defendant Augustus 0. Bowen. Final judgment was then entered, dismissing the complaint as to the defendants Augustus and Jennie Bowen, and directing specific performance as to the defendant Mrs.- Gould.</p> <p>At the time this contract was made, Mrs. Gould lived in Rochester and her brother lived in California. In January, 1890, a proposition for the "purchase of this property had been made by one Ely, and a contract was submitted to Mrs. Gould respecting its sale. She consulted with a lawyer in Rochester by the name of Barker, and, acting upon his advice, the proposed contract was rejected. The-plaintiff, Mr. Palmer, was informed about the negotiations with Ely for the-sale of the property, and of their having fallen through, and he gave instructions to Barker to purchase the Bowen property for him. Barker saw Mrs. Gould and informed her that a party wished to purchase the property and requested her to come to his office. She did so, accompanied by her sister, Mr. Lathrop, and the contract in question was then and there drawn by Barker arid subsequently executed as described.</p> <p>It is claimed on the part of Mrs. Gould that she executed the contract conditionally upon her brother’s approval and willingness to sell. Her testimony, as that of Mrs. Lathrop, was explicit with respect to that. On the other hand, it is claimed on behalf of the plaintiff that Mrs. Gould executed the contract unconditionally* and that it was not dependent for its completion upon the approval and ratification of Bowen. To sustain that position the testimony of Barker is relied upon, to show that nothing was said by Mrs. Gould at the time of the execution of tljie contract to the effect that she would not sell unless her brother was willing. There had been no interview between the plaintiff Palmer and any of the defendants prior to the making, execution and delivery of the contract. The interviews respecting it were had only between Barker and Mrs. Gould, at which Mrs. Lathrop was present, and took place on the 24th day of February, 1890, at Mrs. Gould’s house and on the following day at Mr. Barker’s office. At the time of the execution of the contract by Mrs. Gould, a power of attorney was drawn up by Barker for execution by her brother, Mr. Bowen, authorizing her to make a valid conveyance of his real estate interests; but it was never executed by him and he. refused to join in the sale. The evidence showed that though Barker had been and was acting as Gould’s attorney, in the matter of the sale of the property in question, he was, also acting under Palmer’s instructions in the endeavor to secure a sale of it to him, and that between them the terms had been arranged for its purchase, intermediate the rejection of the Ely proposition and the interviews had by Barker with Mrs. Gould at her house. Barker did not inform Mrs. Gould then of the name of the party proposing to purchase; nor of his negotiations with him, and his communications to her were confined, in substance, to making the offer upon the terms, which had been arranged upon between him and Palmer.</p> <p>Upon the evidence relating to the making and delivery of the contract of sale, the trial court made the finding of fact that no condition of any kind was attached to its delivery. The court was, also, requested by the defendant, Mrs. Gould, to find: “That at the time of the execution of said agreement, and during the negotiations preceding the same, said Barker was secretly, and. without knowledge or assent of the defendant Gould, acting as attorney or agent for the plaintiff, charged with the duty of purchasing the real property described in the complaint.” To the refusal so to find, the defendant Gould excepted. As a majority of the court con'cur only in that portion of the opinion which relates to his refusal to find the case is not reported in full.</p>

The defendant made a written offer to the plaintiffs to do this work, of which .the following is a copy : Brooklyn, June 13, 1887. I, the undersigned, propose and offer to excavate and dredge .a trench seven hundred and seventy-five feet in length for crib bottom of thirty feet wide to the depth of twenty feet at mean low water for the sum of twenty-three hundred dollars, the material so dredged to be deposited in-shore so as not to interfere with said trench.

<p>A majority of the court did not concur in the prevailing opinion, but simply in the result.</p>

<p>1. Judgment—Correction.</p> <p>A court has power, if it appears that a judgment has been entered by some mistake, irregularity or error which deprives it of the character of & judgment of the court, as intended by the trial judge, to vacate it or set it aside for any error of law or fact committed at the trial, so far as power is given to the trial court for that purpose by the Code.</p> <p>3. Same.</p> <p>The appointment of a referee to take proofs and report, notwithstanding the existence of a judgment in favor of the defendants dismissing the complaint, is not a matter resting in discretion, but a question of power, and all the proceedings based upon the order appointing the referee, including the judgment in favor of plaintiff, depend upon and fall with the order of appointment.</p> <p>3. Appeal—Vacation on judgment.</p> <p>Where, after an appeal to the court of appeals, the general term vacates the judgment from which the appeal is taken, the respondent is entitled to have the appeal dismissed.</p>

<p>1. Evidence—Pabol—Considebation.</p> <p>An instrument under seal, in the form of a mortgage upon real estate,, which upon its face expresses a consideration and purports to have been given as security for a debt may, nevertheless, as between the parties, be shown to have been purely voluntary or without any consideration, and. so invalid.</p> <p>2. Same.</p> <p>The rule which excludes evidence of parol negotiations or conditions,, when offered to contradict or substantially vary the legal import of a wril- . ten agreement, does not prevent a party to the agreement, in an action between them, from showing, by way of defense, the existence of> a contemporaneous oral agreement, made at the time the writing was executed and delivered, which renders the use of the written instrument, for any - purpose contrary to or inconsistent with the oral stipulation, dishonest or-fraudulent.</p> <p>3. Same—Admissions.</p> <p>The acts and declarations of a mortgagee with respect to the consideration, conditions, and purpose under which the instrument is made and delivered, is competent as against his personal representatives.</p>

<p>Kegligence—Ship owkee.</p> <p>It is the duty of the master, or the mate or some other officer of a ship, to see that the iron door of the forward gangway or port, on the starboard side of the ship, is properly closed and secured at night. A failure to perform this duty is negligence for which the owner of the ship is not liable.</p>

<p>Appeal from judgment of the genenal term of the supreme «ourt in the fourth j udieial department, entered upon an order, "which affirmed a judgment in favor of defendant entered upon a ■decision of the court on trial at special term overruling plaintiff’s demurrer to the answer and dismissing the complaint.</p>

This action was brought to compel the defendant to issue $12,-500 of its capital stock to the plaintiffs, Susan B. Anthony and Mary S. Anthony, and to account for and pay over to the plaintiffs the… Held: and where all the meetings of the said fornr Hamlin companies, so called, were held, after the Messrs. Hamlin gained control of them.

<p>Appeal from judgment of the general term of the supreme-court in the fourth judicial- department, entered upon an order which affirmed a -judgment in favor of defendant entered upon an order of the court on trial at circuit non-suiting the plaintiff, and also affirmed an order denying a motion for a new trial.</p>

<p>Cíosts—New triaA</p> <p>Where a new trial is awarded to the defendant as a matter of legal right for an error commited in rejecting evidence pertinent to the issues, the fact that the evidence, which the defendant gives upon the new trial, falls far short of substantiating his offer of proob does not render the case one Where the court of appeals should exercise its discretion in awarding damages by way of costs, upon its affirmance of the judgment.</p>

<p>Account stated—Impeachment. '</p> <p>A settled account may be impeached and readjusted by proof of unfairness, fraud or mistake in law or fact; but it is not necessary in such cases to open the whole contract, where the mistake can be corrected and the rights of the parties readjusted as to such a mistake, without so doing.</p>

<p>Appeal from a judgment of , the general term of the supreme court in the fifth judicial department, entered upon an orden, which modified, and affirmed as modified, a judgment in favor of plaintiffs, entered upon a decision of the court on trial at special term.</p> <p>This is an action brought to foreclose a mechanic’s lien filed by the plaintiffs against the premises owned by the defendant QoraI. Scoville, in the village of Tonawanda, in the county of Brie, in this state.' The defendant Charles H. Scoville is the husband and agent of the other defendant, and acted as her agent in the matters hereinafter spoken .of. The answer of the defendants denied many of the allegations contained in the complaint and set up a counterclaim amounting to between six and seven hundred dollars. The action was tried at the Brie special term in equity, held at Buffalo, and the following are some of the facts found by the court upon such trial: On the 26th of August, 1890, the plaintiffs entered into a contract with the defendant Charles H. Scoville to do certain work towards the building of a house upon a lot owned by the defendant Cora I. Scoville, in the village of Tonawanda, in this state, for the sum of $3,980, upon the terms stated in the contract. In the contract executed by the parties-were subdivisions 4 and 12, which read as follows:</p> <p>4th. The contractors shall, within twenty-four hours after receiving written notice from the architect to that effect, proceed to remove from the grounds or building all materials condemned by him, whether worked or unworked, or take down all portions of the work which the architect shall condemn as unsound or improper, or as in way failing to conform to the drawing and specifications, and to the conditions of this contract. The contractors shall cover, protect and exercise due diligence to secure the work from injury, and ail damage happening to the same by their neglect shall be made good by them.</p> <p>12th. Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials, of the proper quality, or fail in any respect to prosecute the-work with promptness and diligence, or fail in the performance-of any of the agreements on their part herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three dáys written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this'contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action." the owner shall also be at liberty to terminate the employment of the contractors for said work arfd to enter upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing. the work, such excess shall be paid by the owner to the contractors, but if such expenses shall exceed such unpaid balance, the contractors shall pay the difference to the owner. The. expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work and any damage incurred' through such default, shall be audited and certified by tile architect, whose certificate thereof shall be conclusive upon the parties.</p> <p>The plaintiffs sublet the carpenter work to one William Stokes who again sublet the same to. his brother Michael, who with several carpenters commenced work on the premises on the 22nd day •of September, 1890, and continued to work thereon until September 30, 1890, and during that time neither of the plaintiffs gave ■any personal attention to the work and William Stokes but slight .-attention. On September 30th the frame of the building up to the top of the second story had been erected and certain materials used in erecting the structure had been delivered upon the premises by the employees .of the plaintiffs. A large part of the work •done on the building up to this time was not iu accordance with "the plans or specifications, and the materials used were improper ¡and not in accordance with the same, and in order to remedy these defects it' would be necessary to take the building down. On ■the 30th of September the architect, assuming to act under the provisions of the contract, gave to the defendant Charles H. Scoville a certificate in writing that the carpenter work was not being done in accordance with the plans and specifications, and that the plaintiffs employed incompetent and unskillful workmen to do the work, and had used unseasoned hemlock for joists and sheathing, •and upon the above-mentioned grounds he advised the 'defendant to protect his interests as provided for in part twelve of the contract. . Upon receipt of this paper the defendant Charles H. Scoville prepared and signed a notice in writing directed to the plaintiffs and dated September 30, 1890, which notice reads as follows :</p> <p>Messrs. J. & T. Charlton :</p> <p>I herewith give you three days’ written notice, to expire October 4th, at nine a. m., to remove all labor and materials condemmed by the architect, Mr. F." William Fisher, and provide such ■materials as called for in the specifications. And I also notify you that I shall make use of the power given me -únder part 12 in ■contract, to terminate the employment of the contractor ’who shall ■do said carpenter work.</p> <p>Enclosed find the certificate of the architect, Mr. F. William "Fisher.</p> <p>Charles H. Sooville,</p> <p>Tonawanda, FT. Y.</p> <p>This notice inclosed the certificate of the architect above spoken ■of, and was served personally on one of the plaintiffs on September 30th. After some conversation between one of the plaintiffs ¡and the defendant Charles H. Scoville, and also between that plaintiff and Michael Stokes and the architect, at Buffalo, the ■plaintiffs expressed a willingness at that time to remedy the defects, but on the 3d of October the court finds that the work ’fcas abandoned by the plaintiffs, and without remedying any of the «defects, except in one or two respects, and the work done up to that time was not to the satisfaction or approval of the architect, nor, although plaintiffs had ample opportunity for that purpose, did the work comply with the notice from Charles H. Scoville. After the 3d of October the court also finds the contract was terminated and annulled by the reason of the failure and refusal of plaintiffs to perform the same. The defects in the building were ■important and substantial. After abandoning the contract the plaintiffs did nothing further in regard to the - building or the materials on the premises, and after letting the building remain in that condition for two weeks the defendants took it down, because it was necessary to do so in order to have the house constructed ■according to the contract. The defendants then proceeded through other contractors to reconstruct the building in accordance, as they insist, with the plans and specifications of the old contract, but at ■a necessary cost of between $600 and $700 in excess of the price named in that contract. The court, however, refused to find that the building was completed according to the original contract, or that the necessary cost of so building it was more than the original ■contract price. In the course of performing the work and procuring the materials therefor the defendants used a certain amount •of the materials which had belonged to the plaintiffs, and which they had put into the building up to the time when they abandoned the contract. Those materials amounted in value to $318. The expense of taking down the structure erected by the plaintiffs ■and erecting another upon the same foundation, up to the point where the original structure was abandoned, was $123.50, which dhe court found was the damage sustained by the defendants by reason of the plaintiffs’ breach of their contract, such sum being made up of the expense of taking down the old structure and the labor of carrying the new one to the point where the plaintiffs had left the old one. The plaintiffs filed a lien against the house for the purpose of securing their claim for the amount of the materials belonging to them which were used by the defendants in the erection of the house subsequent to the abandonment of the contract by the plaintiffs.</p> <p>The plaintiffs had never been paid anything under their contract at the time they abandoned it, and the contract provided for a certificate from the architect before any payment should be due under it. The court gave judgment to the plaintiffs for the value of their materials used by defendants, which it found to be $318, ■deducting therefrom $123.50, the amount which it cost the defendants to tear down and erect the building in accordance with the •contract up to the point it had reached when the plaintiffs left work, and for the balance, $194.50, judgment was directed for the plaintiffs. The court refused to find the facts upon which to •base defendants’ claim to recover damages for the increased cost ■and expense they had been put to in erecting the building according to the original contract.</p> <p>Both parties appealed to the general term from the judgment entered upon the decision of the special term, and upon the hearing of the appeals that court increased the j udgment in favor of the plaintiffs by striking out that part of the allowance to defendants of §123.50, which consisted of the cost and expense oí re-erecting the building to the point at which it was when it was pulled down upon the abandonment of the contract by the plaintiffs, and which iyas $83. The general term allowed to the defendants the cost and expense of tearing down the building, which, was $40.50 out of the $123.50, and disallowed the balance ($83),. thereby increasing the judgment in favor of plaintiffs by that sum, or to a total of $277.50, and as thus modified, the judgment was affirmed.</p>

<p>Appeal—Abehimance.</p> <p>The omission of important facts in this case, which appear in the same case between the same parties in the proceeding to review the assessment of 1893, warrants an affirmance of the order setting aside an assessment of ■ relator’s capital for taxation for the year 1893.</p>

<p>Appeal from judgment of the general term of the supreme-court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>This action was brought to recover possession of seventy freight, cars, alleged to be the property of plaintiff, and which had. been taken possession of by defendant as receiver of the Eochester,. Hornellsville and Lackawanna Eailroad Company.</p>

<p>1. Fraud—Recovery.</p> <p>Where fraud is alleged as the basis of the action, it must be proved; the law will not permit a recovery by proof of a right of action upon contract or of some other character, even though facts maybe stated or may appear which in proper form might sustain such an action.</p> <p>2. Same.</p> <p>Where, in an action under the act of 1858 by an administrator whose-intestate died insolvent, to disaffirm a transfer of property alleged to have been made by the intestate in fraud of creditors, it appears that the money in question was paid by a third person to the defendant’s testator, who-was the pastor and treasurer of the church, to be used for church purposes in performance of a promise made by said testator, and that the money was paid by such testator upon a mortgage upon a church property, and the complaint alleges and the answer admits a demand by plaintiff for the money, such demand should be accompanied with information as to the facts ; and where it does not appear that at the time of the demand the testator was informed of the facts upon which plaintiff basis his-claim, the demand is insufficient to charge the testator with notice.</p> <p>3. Same.</p> <p>' If such money came to the possession of a third person through a disposition by gift or other transfer made by the insolvent in his life time, valid between themselves, though void as to creditors, then the possession of such third person is not wrongful, at least until the transfer is disaffirmed, and the defendant will not be personally liable for receiving the money in ignorance of any fraud after he has paid it into the treasury of the church in good faith.</p> <p>4. Same.</p> <p>But, if the third person simply abstracts the money from the effects of the insolvent, then the possession of such third person is wrongful and he can give no title to another receiving it without legal consideration, though an innocent agent through whose hands it passes may be protected.</p>

<p>Appeal from judgment of the general term of the supreme •court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon the report of a referee dismissing the complaint.</p>

<p>1. Municipal corporation—Office—Abandonment.</p> <p>Neglect of duty by an officer, absence from the place where the duties are to be performed, nonuser of powers or abandonment, are not modes of vacating an office, but, if unjustifiable, are grounds for removing him from office by the proper authority.</p> <p>2. Same.</p> <p>But, if abandonment is to be inferred conclusively from nonuser or neglect of duties, so as to amount in itself to an absolute vacation, without express renunciation, of the office once lawfully held by the party, it can only be when the nonuser or neglect is not only total or complete, but of such continuance or under circumstances so clearly indicating absolute relinquishment, as to preclude all future question of the facts.</p>

<p>Damages—Excessive—Reduction.</p> <p>Ad excessive allowance of damages for injuries to premises caused by the operation of an elevated railroad in a street for a period subsequent to-the acquisition by the company of plaintiff’s easements, cannot be cured by the deduction of a pro rata amount from the whole amount allowed, where it does not appear that it was intended to allow the same amount for each month of the entire period.</p>

<p>Exchanges—Suspension oe a membeb. *</p> <p>An exchange cannot suspend a member, under a by-law authorizing it, for non-iuiflliment of a contract, before the rights of the parties to the contract have been settled by an action, nor under a by-law providing therefor in case a member is accused of a proceeding inconsistent with just and equitable principles of traefe, where the exchange has taken no steps to carry out the purpose, recited in its charier, “to inculcate just and equitable principles of trade.”</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Appeal from an order denying a motion to strike the cause from the calendar.</p>

<p>Appeal from a judgment rendered in favor of plaintiffs on the trial by the court, without a jury.</p>

Action by Eugene O. Sullivan against the New York Elevated Railroad Company and others. Plaintiff died pending the action, and his administrator and the committee of the property of the widows and heirs at law moved to revive the action in their names.

<p>1. Costs—Extra allowance.</p> <p>An extra allowance of costs, in an action to restrain the use of a trade mark, is to be computed, not on the mere amount of damages recovered, but on the value of the trade-mark.</p> <p>3. Same.</p> <p>But such allowance under § 3353 of the Code, should be what the court may deem a reasonable and moderate counsel fee in the cause, within the limits prescribed by the Code.</p> <p>3. Same.</p> <p>In this case it was held that the extra allowance could not exceed the sum of $100.</p>

<p>Certiorari to review the action of the board of park commissioners in the city of New York, dismissing relator from the park police force.</p>

<p>Appeal from an order denying a motion to vacate an attachment by reducing the amount of the attachment.</p>

<p>Certiorari to review the action of the board of police commissioners in the city of New York, in dismissing relator from the police force.</p>

<p>1. Negligence—Crossings of street railroads.</p> <p>Street- cars and pedestrians have equal rights at crossings and to uses of the streets, and what is proper care and precaution on the-part of those-in charge of cars to prevent accidents, is a question of fact in each case.</p> <p>2. Same—Warning.</p> <p>It is error in a charge to a jury to predicate liability upon a failure to give a signal at the crossing where the party injured saw the car approaching.</p>

<p>Contract—Performance.</p> <p>A contract to erect a machine to operate to the satisfaction of the purchaser is complied with by showing that the machine is erected in a proper manner and in a way that should have satisfied the purchaser.</p>

<p>Appeal from an order confirming the report of the appraiser.</p>

Action by C. Lavern Ludlow against the Groton Bridge Company for injury received by plaintiff, while in defendant’s employ, through the alleged negligence of Mr. Hemmingway, foreman of defendant’s shop.

<p>1. Executors, etc.—Decree.</p> <p>By section 2552 of the Code, the decree of the surrogate, directing an executor to pay money to a person entitled to the same from the estate, is conclusive evidence-that there are sufficient assets in his hands to satisfy the sum directed to he paid.</p> <p>2. Same—Failure to obey decree. „</p> <p>Where the executor has paid personal bills and money to himself and to his attorney, he cannot be heard to excuse his non-compliance with the decree by showing that he has not the amont in his hands to pay as required by the decree. *</p>

<p>Accord and satisfaction—What is.</p> <p>There must be not only a tender of the thing agreed upon, but .an acceptance thereof; otherwise, there will be no accord and satisfaction of a liquidated claim.</p>

<p>Attorney and client—Summary proceedings..</p> <p>Where, on motion to compel an attorney to pay over to his client moneys received by him in excess of what he is entitled to receive for his services, where it appears what services he has performed, the court has only to fix a reasonable amount for his compensation.</p>

Action to set aside a certain contract relating to securities or obligations of the city of Houston, Tex., in which plaintiff appealed from a judgment in favor of defendant. Defendant moves to dismiss the appeal.

<p>Certiorari to review the action of the board of park commissioners of the city of Hew York, in removing relator from the police force after trial on a charge of having been off his duty.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial. •</p>

<p>A motion for an assessment of damages against defendant was denied, and relator appeals.</p>