fice, though the ballot is to be counted if the of section 10 discloses that the reference intention of the voter can be fairly determined. there made to distinguishing marks is but [Ed. Note.-For other cases, see Elections, one of the several directions contained in Cent. Dig. § 218; Dec. Dig. § 239.*] that section of the statute governing the Transferred from Superior Court, Merri- conduct of the Secretary of State in the mack County; Stone, Judge.

preparation of ballots, and has nothing whatever to do with the voter in marking his ballot. In fact, the act of 1897 contains no

Information in the nature of quo warranto, by the Attorney General, on the relation of one West, against Elbridge M. Bart-provision prohibiting a voter from placing a lett and another, to determine the title to the offices of Second and Third Supervisors of the Check List of the Town of Chichester. Facts found by the Superior Court, and case transferred to Supreme Court. Petition dismissed.

distinguishing mark upon his ballot, or subjecting him to fine or imprisonment for so doing, or authorizing the election officers or the court to reject a ballot so marked. It is true that in section 29, c. 33, Pub. St. 1891 (Laws 1891, c. 49, § 29), it was provided that "a voter who shall * * place any distinguishing mark upon his ballot, or shall write any name as the candidate of his choice, with the intention of placing thereby a distinguishing mark upon his ballot, * ** shall be punished by a fine of not more than five hundred dollars"; but section 29, as well as all the other provisions of chapter 33 of the Public Statutes of 1891, was repealed by section 21, c. 78, Laws 1897, and no provision of a like nature was incorporated in the latter act. Indeed, the act seems to contain few, if any, safeguards looking to the secrecy of the ballot after the votes have been cast and the time has arrived for making the count. Our conclusion is that it cannot be implied from any particular provision, or from the act taken as a whole, that it was intended that a ballot with a distinguishing mark upon it should be treated as a nullity and not counted.

At the election held in Chichester November 3, 1908, the moderator declared there was a tie vote and no choice for second and third supervisors. At an adjourned meeting held the following day, the defendants received a majority of all the votes cast and were declared elected. They qualified and entered upon the performance of their duties. The ballot described in the opinion was cast at the election held November 3d, and was counted as a vote for the defendants. If material, it was found that it was the intention of the voter to vote for the defendants, on the evidence of the ballot itself. To this finding the relator excepted. If the ballot should have been counted for the defendants, there was no choice for second and third supervisors on November 3d, the defendants were legally elected at the adjourned meeting, and this action should be dismissed. If the ballot should not have been so counted, the relator and one Leavitt received a ma- Moreover, it does not seem to us that a jority of all the votes cast at the election mark of the character of the one in question, held November 3d and should have been de- and placed upon a ballot as this was, could be clared elected, and there should be judg- regarded as a distinguishing mark, subjectment of ouster against the defendants. ing the voter to punishment under section 29, Niles & Upton, for relator. Martin & even if that section had not been repealed, Howe, for defendants.

BINGHAM, J. This case presents the question whether a ballot marked with a cross above the party column in which the defendants' names appear as candidates, but below and a little to the left of the circle at the head of the column, should be counted for the defendants. The relator's position is: (1) That the cross in the position it occupies upon the ballot is a distinguishing mark and renders the ballot a nullity; and (2) that the voter's intention is not legally expressed, if he intended to vote for the defendants.

or had been embodied in the present statute. The mark did not differ in character from that prescribed in the statute to be used by a voter in preparing his ballot, and the place where it was put upon the ballot-at the head of the party column-was not such a departure from the requirements of the statute as not to be a substantial compliance therewith. The provisions of the act wherein it says that a voter may prepare his ballot by placing a cross in the circle at the head of the column bearing the name or designation of his party, or in the square opposite the name of the candidate of his choice, are not mandatory. Prior to the enactment of our present ballot law, it was held in this state that a statute regulating the manner of voting, and providing that: "All ballots that shall hereafter be given in at any election of town, state, or county officers shall have written or printed upon them the full Christian and surname of the person voted for: Provided, that the middle may be indicated

In support of his first position, the relator calls attention to the clause in section 10, c. 78, Laws 1897, which says: "The ballot shall be printed on plain white paper, in weight not less than that of ordinary printing paper, and there shall be no impression or mark to distinguish one ballot from another"-and to the provisions of the act generally in so far as they indicate a purpose to preserve the secrecy of the ballot. An examination name

ment of other debts and charges of settle- [ between the plaintiff and Emma M. Carson ment was placed under the control and at the disposal of said Emma M. Carson, so that the income, and, if necessary, the principal thereof, could be used for the support of said Emma M. Carson during her life.

"(5) Said Emma M. Carson died on the 20th day of June, 1905, leaving an estate sufficient to pay the expenses of settlement and all legal claims and debts, including the sum of $3,803.30, with interest, due the plaintiff from said estate of Emma M. Carson under the agreement hereinbefore set forth.

that it should be so used. If the witness had answered the question in the affirmative, the defendant might properly have asked him to produce the account. From the record before us it appears that by the exclusion of this question the defendant was deprived of the opportunity of properly cross-examining this witness. A new trial is ordered upon this ground only.

Error and new trial ordered. The other Judges concur.

SISK v. MEAGHER.

"(6) On November 4, 1905, the plaintiff presented said claim, which, with interest to the date of the death of said Emma M. Carson, amounted to $4,739.83 to the defendant as (Supreme Court of Errors of Connecticut. Dec. administratrix of the estate of said Emma M. Carson, and the same was disallowed."

By her answer the defendant denied paragraph 4 of the complaint. The jury returned a verdict for the plaintiff for $4,712.44. Of the several reasons of appeal, which need not all be repeated here, we shall consider but one.

17, 1909.)

1. COSTS (§ 232*)-COSTS ON APPEAL.
the Supreme Court of Errors for want of juris-
An order erasing on motion an appeal to
diction apparent on the record does not carry
costs under Gen. St. 1902, § 4840, authorizing
costs to the prevailing party.

[Ed. Note.-For other cases, see Costs, Cent.
Dig. 880; Dec. Dig. § 232.*]
2. PLEADING (§ 106*)-PLEA IN ABATEMENT

-OFFICE OF PLEA.

The proper office of a plea in abatement is to state facts not apparent on the record. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 219-227; Dec. Dig. § 106.*]

COSTS (8 232*)-COSTS ON APPEAL "PRE

VAILING PARTY."

A judgment abating an appeal rendered on a plea in abatement is a determination of an issue in favor of the pleader, and disposes of prevailing party and entitled to costs under a pending cause, and makes the pleader the Gen. St. 1902, § 4840, authorizing costs to the prevailing party.

[Ed. Note.-For other cases, see Costs, Cent. Dig. 88 877-883; Dec. Dig. § 232.*

For other definitions, see Words and Phrases, vol. 6, pp. 5543, 5544; vol. 8, p. 7762.]

Appeal from Court of Common Pleas, New Haven County.

Action by James Sisk against Bridget Meagher. From the taxation by the clerk of costs in the Supreme Court of Errors in favor of plaintiff, defendant appeals. Affirmed.

Upon the trial said Wilbur E. Davis haying testified as a witness in chief for the plaintiff that there remained of the estate of James L. Carson for distribution $2,516, which was used for the benefit of Emma M. Carson, both interest and principal, was ask-3. ed, upon cross-examination, if he had any account showing that this fund or the income of it was paid for Mrs. Carson's benefit. This question was objected to by the plaintiff, upon what ground does not appear, and was excluded by the court. This ruling was erroneous. One of the issues expressly raised by the pleadings was whether the agreement was ever made, which is alleged to have been entered into by the plaintiff, with Emma M. Carson, through the latter's agent, Wilbur E. Davis, as set forth in paragraph 4 of the complaint. In support of her claim that such an oral agreement was in fact made as alleged, the plaintiff offered the testimony of the very person who is alleged to have made it in behalf of Emma M. Carson, and who, as the plaintiff claimed, had charge of and used, for the benefit of Emma M. Carson, in accordance with the terms of the claimed agreement, the $2,500 remaining of the estate of James L. Carson. Clearly the defendant had the right to cross-examine this witness as to the correctness of the material statements which he had made upon his direct examination. It seems to us that one of the first questions which a good cross-examiner would naturally have asked, and ought to have asked, this witness was, Have you any account showing such an expenditure of this money as you say you made? A negative answer might well have led the jury to doubt whether his statement that he had so used the money was true, and so whether there even was an agreement entered into

See 73 Atl. 785.

William B. Stoddard, for appellant. James P. Pigott, for appellee.

PER CURIAM. An appeal by the defendant to the June term of this court in 1909 from a judgment of the court of common pleas in favor of the plaintiff was met by a plea in abatement on which the plaintiff obtained a judgment abating the appeal, with costs. The defendant claims that no costs were taxable on the ground that costs are an incident to a cause, and the judgment shows that there was no cause pending. Gen. St. 1902, § 4840, authorizes the allowance of costs to the prevailing party "in causes pending in the Supreme Court of Errors."

The defendant brought here what she claimed to be an appeal, and it was docketed

as such. Had the want of jurisdiction been the injury to the wife, such as is described so apparent as to found a motion to erase, in section 1130 of the General Statutes of an order erasing it from the docket would 1902, was given to the defendant during the not have carried costs. Parmalee v. Bethle- four months. Upon disclosure it appeared hem, 57 Conn. 270, 18 Atl. 94. But the prop- that the notice thus referred to, and the er office of a plea in abatement is to state only notice claimed to have been given, was facts not apparent on the record. O'Brien's such as was contained in a complaint servPetition, 79 Conn. 46, 63 Atl. 777. If an is-ed upon the defendant in an action brought sue is presented as to whether they are true by the wife to recover for her personal inor sufficient, the court necessarily has juris- juries. The defendant thereupon demurred diction to determine that issue, and its de- to the complaint, for the reason that it distermination, if in favor of the pleader, dis- closed a failure to comply with these re poses of what within the meaning of the quirements of said section 1130, and that statute is as between the parties to the pro- without such compliance the action was not ceeding a pending cause, and makes the ap- well brought. The only questions presentpellee the prevailing party. A form of judged by the appeal are those involved in the ment on such a plea was prescribed by this overruling of this demurrer. court in 1897, and concludes thus: "It is therefore considered and adjudged that the appeal abate and be dismissed and that the appellee recover $- -costs, and execution issue accordingly." This is justified by the considerations above stated.

The action of the clerk is affirmed.

CRONAN v. NEW YORK, N. H. & H. R. CO.
(Supreme Court of Errors of Connecticut. Dec.
17, 1909.)

NEGLIGENCE (§ 104*)-ACTION FOR INJURIES
-CONDITION PRECEDENT-NOTICE OF INJURY.

The section of the statute in question requires the giving of a prescribed notice within a prescribed time as a condition precedent to actions of a prescribed character begun after that time. Its provisions are limited in their application to actions founded upon negligence, and they, by its terms, must be actions for injuries to or the death of a person, or for an injury to personal property. The scope of these provisions was under review in Peck v. Fair Haven & W. R. Co., 77 Conn. 161, 163, 58 Atl. 757, and we there said that they were not sufficiently comprehensive to embrace injuries to a relative right. We see no occasion to revise our opinion as then expressed.

There is no error. The other Judges con

cur.

Under Gen. St. 1902, § 1130, prohibiting any action for damages for an injury to, or for the death of, any person caused by negligence against a railroad company, etc., unless written notice containing a description of the injury and the place of occurrence shall be given defendant within four months of the accident, would not apply to an action by a husband to recover damages, consisting of loss of services and medical expenses, resulting to him from personal injuries to his wife while a passenger on defendant's train; the statute not including in- (Supreme Court of Errors of Connecticut. Dec. juries to a relative right.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 171; Dec. Dig. § 104.*]

Appeal from Court of Common Pleas, New Haven County; Earnest C. Simpson, Judge. Action by Thomas Cronan against the New York, New Haven & Hartford Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry G. Day and Thomas M. Steele, for appellant. Walter J. Walsh, for appellee.

PRENTICE, J. This action is brought by a husband to recover for the loss and dam

CUNNINGHAM & PATCHEN V. DELO-
HERY HAT CO..

17, 1909.)

1. CONTRACTS (8 339*)-ACTION-ADMISSIONS IN ANSWER.

In an action for work and labor done and materials furnished, where defendant alleged that the work was done under a contract for a specified price, plaintiff was not required to show that the contract was made on behalf of defendant by some one authorized so to do; defendant's admission being equivalent to proof,

though there was also a general denial.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 1711, 1712; Dec. Dig. § 339.*] 2. ASSUMPSIT, ACTION OF (8 5*)- COMMON COUNTS.

Where there was performance by plaintiffs of an express employment of them by defendants to do certain work and furnish materials, no compensation being agreed on, the common counts were proper; plaintiffs being entitled to reasonable compensation.

[Ed. Note.-For other cases, see Assumpsit,

age accruing to him as such husband, in that he was deprived of the society, comfort, and services of his wife, and was compelled to expend money in her cure and care, by reason of personal injuries claimed to have been sustained by the wife while a passenger upon one of the defendant's trains through the fault of its servants. When it was brought, more than four Action by Cunningham & Patchen against months had elapsed since the accident. The the Delohery Hat Company. Judgment for complaint alleged that a written notice of plaintiffs, and defendant appeals. No error.

Action of, Cent. Dig. § 14; Dec. Dig. § 5.*1
Appeal from City Court of Danbury; John
R. Booth, Judge.

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

James E. Walsh and William H. Cable, for, ment. There was involved, although not exappellant. Charles W. Murphy, for appellees. pressed, in the complaint an averment of an

PRENTICE, J. The plaintiffs brought their action upon the common counts to recover for work and labor done and materials furnished as set out in their bill of particulars. The defendant pleaded a general denial, a special defense, and a tender. The special defense alleged that the defendant, acting through its president, entered into a contract with the plaintiffs for the performance of the work in the execution of which the labor and materials covered by the bill of particulars were performed and furnished; that in this contract the sum to be paid therefor was agreed upon, and that this sum was considerably less than the amount claimed to be recovered as the reasonable value thereof. The plaintiffs admitted that the work was done and materials furnished under a contract so made, but denied that the price was agreed upon. The court found the existence of this contract in so far as the doing of the work and furnishing of the materials was concerned, but that there was no agreement as to price other than that the plaintiffs should "do the work by the day and treat the defendant right." Judgment was thereupon rendered for the amount of the bill of particulars. Upon the trial, the plaintiffs for the purpose of proving that the person with whom, as representing the defendants, the contract was made, was authorized to act for the defendants, called that person, who testified, against objection, that he was the president of the defendant corporation, and that he had authority to act for it in the premises.

employment, either express or implied, and that employment it was incumbent upon the plaintiffs to establish. The defendant in framing its answer was privileged to either admit or deny the employment. It was its duty to plead the truth. Rules of Court (Practice Book, 1908) p. 249, § 159; Cnurch v. Pearne, 75 Conn. 350, 356, 53 Atl. 955. It could not properly assume totally inconsistent positions upon that subject. Hatch v. Thompson, 67 Conn. 74, 77, 34 Atl. 770; Gulliver v. Fowler, 64 Conn. 556, 566, 30 Atl. 852. When, therefore, it chose in its answer to assert the fact that the work done and materials furnished by these plaintiffs, and for which recovery was sought, were done and furnished under its express employment, it operated as an admission of the facts which it was incumbent upon the plaintiffs to establish in support of their complaint to that extent. And this admission did not lose its effect in the presence of other pleading to the contrary contained in the answer, whether that inconsistent pleading was embodied in the same defense or another. Gulliver v. Fowler, 64 Conn. 556, 566, 30 Atl. 852; Fernside v. Rood, 73 Conn. 83, 87, 46 Atl. 275. "An admission in pleading dispenses with proof, and is equivalent to proof." Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 Atl. 1017.

The only other error charged to the court in the brief of counsel is that a misuse of the common counts was permitted. They were entirely appropriate to the situation as the plaintiffs claimed it and the court found it. That situation disclosed an express, employment by the defendant of the plaintiffs to do the work and furnish the materials in question, an absence of an agreement as to the compensation to be paid therefor, and performance on the plaintiffs' part. They thus became entitled to a reasonable compensation for labor done and materials furnished.

There is no error. The other Judges concurred.

STATE ex rel. TOWN OF HUNTINGTON v.

The error upon which the defendant chiefly relies is that the court made its finding of the existence of a contract between the plaintiffs and the defendant, pursuant to which the work in question was executed, without sanction in evidence or otherwise, for the reasons (1) that there was no proof legally presented that the person claimed to have represented the defendant in the matter of such contract had authority to represent it; and (2) that the allegation of the existence of such a contract, contained in the special defense, did not justify the court in accepting that fact as a fact in the case without proof on account of the presence of the general denial. The plaintiffs were under no obligation (Supreme Court of Errors of Connecticut. Dec. to present proof that the work and materials for which recovery was sought were done and furnished pursuant to an agreement therefor entered into on behalf of the defendant by some one with authority. In the first paragraph of the second defense the defendant distinctly and unqualifiedly asserts the existence of this agreement, whose legal effect, in so far as it is averred in this paragraph, and found by the court, is nothing more than the establishment of an employ

HUNTINGTON TOWN SCHOOL
COMMITTEE.

17, 1909.)

1. ACTION (§ 65*)-RIGHT OF ACTION.
stand or fall, so far as concerns the cause of
An action for relief at law must ordinarily
action, according to the facts and governing
law existing at the date of bringing suit.

[Ed. Note. For other cases, see Action, Cent. Dig. § 735; Dec. Dig. § 65.*]

2. SCHOOLS AND SCHOOL DISTRICTS (§ 94*)MAINTENANCE OF SCHOOLS POWERS OF SCHOOL COMMITTEE.

It is the duty of towns to meet the cost of maintaining proper schools, and it is the duty