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WRIGHT v. LEVY. (Supreme Court, Appellate Term. November 18, 1903.) 1. EARNEST MONEY DEPOSIT-RECOVERY.
Where plaintiff, who had deposited money as earnest of her performance of an agreement to purchase from defendant a contract for the sale of real estate, came on the day fixed for performance to his office, well within usual business hours, but he was not present and the neces. sary papers were locked up, and when she came the next day he told her the deposit was forfeited for failure to attend the day before, she
is entitled to recover the deposit. Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Adelaide V. Wright against Mitchell A. C. Levy to recover money deposited as earnest for the performance of a contract. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
B. F. Feiner, for appellant.
BISCHOFF, J. The question whether the plaintiff knew or did not know of the requirement for the payment of taxes, as embodied in the contract of sale which the defendant had agreed to assign to her, is not involved upon this appeal. The recovery of the deposit of $250 is fully supported by evidence that the plaintiff, on the day fixed for the performance of the agreement with the defendant, came to the latter's office prepared to close the matter, but that he was not present and the papers were locked in the safe, a fact which made it impossible for performance to be tendered in his behalf at that time. The next day plaintiff called again, and was informed by defendant that the deposit was forfeited for her failure to attend the day before.
According to thoroughly credible testimony, the plaintiff's attendance was well within the usual business hours contemplated by the agreement, and the defendant's repudiation of the contract was not justified, and placed him clearly in default. The parties never reached a point where the potential disagreement as to the terms of the contract to be assigned could affect their respective rights. The defendant simply declined to observe his agreement, and the recovery of the deposit was justified by the facts.
Judgment affirmed, with costs. All concur.
COSGROVE v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term. November 18, 1903.) 1. STREET RAILWAYS-INJURY TO TEAMS-CONTRIBUTORY NEGLIGENCE-FAILURE
One driving a milk wagon at a jog trot, the horse being under perfect control, was guilty of contributory negligence in crossing a street car track, when he bad seen the car standing some 30 feet from where it struck bis borse, without again looking before attempting to cross.
and 118 New York State Reporter Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Michael Cosgrove against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Henry A. Robinson (J. Ralph Hilton and William E. Weaver, oi counsel), for appellant.
Carneluis F. Collim, for respondent.
BLANCHARD, J. The plaintiff sues for the value of a horse killed as the result of a collision between the horse, which was attached to a milk wagon driven by the plaintiff, and one of the defendant's cars. The accident happened at Thirty-Fourth street and Sixth avenue. The plaintiff, according to his own story, was guilty of contributory negligence. The wagon he was driving was an ordinary covered milk wagon, open in front and in the middle on the sides. The plaintiff was driving along the west side of Sixth avenue towards Thirty-Fourth street. When about 30 feet north of Thirty-Fourth street, he looked, and saw the car which struck him—a west-bound Thirty-Fourth street car-standing at the northeast corner of Sixth avenue and Thirty-Fourth street. This was about 30 feet from where the car struck the horse. The plaintiff admits he did not look or see the car again until it struck the horse. The horse was going at a "jog trot,” not over five miles an hour, and was under perfect control, and could have been stopped instantly. When struck, the horse had just placed his forefeet over the first rail. Such is the plaintiff's story as he himself relates it. Having looked in the direction in which the car proceeded but once, the plaintiff failed in his very evident duty in proceeding to cross the track without again looking. From the nature of the accident as related by the plaintiff, it is quite evident that, had he taken even ordinary precautions, he might have avoided the accident. The plaintiff was clearly guilty of negligence contributing to the occurrence of the accident, and the judgment in his favor cannot be permitted to stand. It must be reversed, and a new trial ordered, with costs to appellant to abide event.
Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.
RAN v. TORCHIANI. (Supreme Court, Appellate Term. November 18, 1903.) 1. PAYMENT-Evidence.
The inference, from repayment by plaintiff of loans made by defendant without any deduction of plaintiff's claim, that such claim had been paid, is not cogent, where the repayment was in work. Appeal from Municipal Court, Borough of Manhattan, Second Dis
Action by Emanuel Ran against Harry Torchiani. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Newman & Butler, for appellant.
PER CURIAM. The record presents a simple conflict in the testimony given by the respective parties in their own behalf, and the probabilities are not sufficiently with the defendant to justify the reversal of the judgment, which is founded upon the justice's estimate of the relative credibility of the witnesses whose testimony was given before him. Whether the statement introduced to show a settlement of accounts was inconsistent with the claim in suit depended upon the value of the plaintiff's assertion that this claim was not embraced within the account deemed by the parties to be adjusted, and was reserved from the settlement; and, while a point is made by the defendant of the plaintiff's “repayment" of loans made by the former without deducting the amount of this claim, it appears that the repayment was in the form of work, not cash, so the inference sought to be drawn is not cogent.
Judgment affirmed, with costs.
DEUTSCHMANN V. THIRD AVE. R. CO. (Supreme Court, Appellate Division, First Department. November 20, 1903.) 1. WITNESSES-CREDIBILITY-INCONSISTENT STATEMENT-ADMISSIBILITY.
In an action for personal injuries, defendant offered evidence tending to show that no accident occurred, and that the ailments complained of were due to syphilis, from which plaintiff was suffering. A physician called by plaintiff testified as to the nature and extent of the injuries sustained by plaintiff by reason of the accident, together with the results which flowed therefrom. Held, that a certificate, signed by the physician, certifying that Anna D. had been sick from syphilis and under his treatment, was admissible, as bearing on the credibility of his testimony, though plaintiff's name was Annie D., and though the physician testified that the certificate did not refer to plaintiff, and that he
knew that she had never had the disease. 2. SAME-CONSIDERATION BY JURY FOR IMPROPER PURPOSES.
Where a written statement signed by a witness was received in evi: dence as bearing on his credibility, the statement of the court, on deny. ing a motion to strike the statement from the record, and for an instruction to the jury to disregard it, that he would leave it to the jury to say whether the witness made the statement, and whether it referred to anything connected with the case, and would let the jury draw the inferences from it under all the circumstances, did not authorize the jury to consider the statement for any purpose beyond its bearing on
the credibility of the witness. 8. MOTION TO STRIKE TESTIMONY ADMISSIBLE FOR ONE PURPOSE-REFUSAL.
A motion to strike from the record a written statement was properly denied where the statement was properly admitted in evidence as bear
ing on the credibility of a witness. 4. EVIVENCE-COLLATERAL MATTERS.
In an action for personal injuries, defendant offered evidence tending to show that no accident occurred, and that the ailments complained of and 118 New York State Reporter were due to syphilis, from which plaintiff was suffering. A physician called by plaintiff testified as to the nature and extent of the injuries sustained by her by reason of the accident, he having treated her for such injuries, and admitted making a written statement to the effect that Anna D. had been sick from syphilis and under his treatment, but testified that the statement did not apply to plaintiff, whose name was Annie D.; that he did not know to whom it referred; that he could not remember the circumstances of making it; and that he knew that plaintiff had never had the disease. Held, that evidence as to what other patients did, or what persons called on him, or what records he kept, or as to whether persons suffering from such disease frequently
gave fictitious names, was collateral and inadmissible. 5. CONFIDENTIAL RELATIONS-PHYSICIAN AND PATIENT-EXTENT OF PRIVILEGE.
The testimony of a physician, limited to the identification of plaintiff, to the fact that he had treated her, together with the place and length of time of such treatment, did not disclose, or have any tendency to disclose, any communication plaintiff made to the physician, or he to her, within Code Civ. Proc. $ 834, prohibiting a physician from dis
closing professional information acquired in attending a patient. 6. SAME-OBJECTIONS-SUFFICIENCY TO RAISE QUESTION.
The objection to the question asked a physician which called for an answer as to whether certain prescriptions delivered by him to a patient were in his handwriting, that it was immaterial, irrelevant, and incompetent, did not raise the objection that the question was in violation of Code Civ. Proc. $ 834, prohibiting a physician from disclosing professional information acquired in aitending a patient, and therefore this
objection could not be made available on appeal. 7. SAME-PERSONS INCLUDED-DRUGGIST.
Code Civ. Proc. $ 834, prohibiting a physician from disclosing pro'fessional information acquired from a patient, does not extend to a druggist who fills physicians' prescriptions, nor does it preclude a patient receiving a prescription from divulging its contents; and therefore a druggist filling prescriptions for a physician's patient may testify to that fact, and identify the prescriptions so filled, which prescriptions may
then be received in evidence. 8. SAME-REFUSAL OF PATIENT TO WAIVE PRIVILEGE-EFFECT-RIGHT TO
DRAW INFERENCES THEREFROM.
The refusal of a patient to permit a physician to testify, notwithstanding Code Civ. Proc. $ 834, prohibiting a physician from disclosing professional information acquired from a patient, authorizes the jury to
draw inferences therefrom warranted by the evidence. 9. REQUESTED INSTRUCTIONS-ERRONEOUS STATEMENT OF LAW-EFFECT-RE
FUSAL TO GIVE.
As the statute only prohibits a physician from disclosing confidential information acquired in attending on a patient where the relation of patient and physician is established, and when the information was necessary to enable him to act in that capacity, a requested instruction that, under the law, communications from a patient to a physician were privileged, and could not be given in testimony except in a case of a waiver of the privilege, was properly refused, being too broad a statement of the law. Appeal from Trial Term, New York County.
Action by Annie Deutschmann against the Third Avenue Railroad Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed.
See 79 N. Y. Supp. 1043.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JÁ.
Thomas P. Wickes, for appellant.
HATCH, J. The plaintiff claimed to have received injuries while attempting to board one of the defendant's cars, and by this action seeks to recover damages for such injuries, and the consequences resulting to herself therefrom. It is not necessary to discuss the evidence offered in the case, except so far as the same is required to make disposition of the errors claimed to have been committed by the court upon the trial. The evidence given upon the trial was conflicting; that offered by the plaintiff tending to support the averments of her complaint, and that offered by the defendant tending to contradict the same, and to show that the plaintiff did not meet with any accident, and that she received no injuries upon the occasion of which she made complaint. The evidence required a submission of the question of fact to the jury, and the verdict in favor of the defendant has support in the evidence, and must be sustained, unless some error was committed which calls for a reversal of the judgment. It was shown upon the trial that the plaintiff was pregnant at the time the alleged accident was claimed to have happened, and that shortly thereafter she sustained a miscarriage, which she now contends was produced by the injuries which she received, and that, as a further consequence of such injuries, she had several subsequent miscarriages, and finally was compelled to undergo a surgical operation for the removal of her ovaries, which has resulted in rendering her sterile. The evidence offered by the defendant tended to show not only that no accident happened, and that no injuries were received, but that the suffering which plaintiff underwent, and the consequent surgical operation, were due to the fact that she was afflicted with secret disease, and that such disease was the responsible factor in all her troubles. The evidence presented the issue as to whether the plaintiff had this disease. It was not controverted but that some person of a name in most respects similar to hers had been afflicted with this disease, and had been treated by physicians for it. That was the issue tendered by the defendant, and the plaintiff controverted it by giving evidence tending to show that the person referred to was Anna Deutschmann and not Annie, the plaintiff herein. The plaintiff called as a witness, for the purpose of showing the nature and extent of the injuries received by her, and of the consequent results which flowed therefrom, Dr. Kolb, a physician who attended the plaintiff at the time of her first miscarriage. He was examined by the plaintiff, and disclosed fully in his testimony the physical condition of the plaintiff, the ailments and complaints from which she suffered, and the cause thereof; the plaintiff waiving in every respect, as to him, any privilege which might have been insisted upon under the statute. Upon cross-examination the defendant sought to show that the miscarriage and the physical condition which subsequently required the surgical operation were such as might have been produced by secret disease; and, as bearing thereon, and in connection with the doctor's testimony of his treatment, there was exhibited a written paper, and he was asked if it was not in his handwriting, to which he gave an affirmative answer. The defendant then offered the writing in evidence. The plaintiff's attorney objected upon the ground that it was incompetent, irrelevant, and immaterial, and accompanied his objection with the statement that he