and 121 New York State Reporter made a recovery for plaintiff improper, and the probabilities favored defendant's theory, a verdict for plaintiff was against the weight of the evidence. Appeal from City Court of New York, Trial Term. Action by William Reilly against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed. Argued before FREEDMÁN, P. J., and SCOTT and BLANCHARD, JJ. Bayard H. Ames and F. Angelo Gaynor, for appellant. FREEDMAN, P. J. Plaintiff's case rests upon his own uncorroborated testimony, and, in the course of that, the plaintiff made highly contradictory statements upon the material points of the case. The defendant showed by the testimony of several disinterested witnesses, as well as by the testimony of the conductor and the motorman, a state of facts which, if true, makes a recovery for the plaintiff impossible. The probabilities also favor the theory of the defense. The verdict is against the clear weight of the evidence, and, in the interest of justice, there should be a new trial. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. BLANCHARD, J., concurs. SCOTT, J. (concurring). In addition to the sufficient reason for reversing this judgment in the prevailing opinion, I think that at least one reversible error was committed in the rulings upon the admission of evidence. The attorney for the plaintiff offered himself as a witness to prove matters which he deemed to be necessary to prove. He was asked whether or not he had taken the case upon a contingent fee. The court repeatedly sustained the objection to these questions. This was clearly error. It is a matter of common knowledge that many actions of this character are brought under what are known as "contingent retainers," wherein the attorney's compensation depends wholly upon his success in recovering a judgment. In such case he is clearly an interested witness, and the jury are entitled to know the fact and extent of his interest in the verdict they are asked to render. Such knowledge has a direct bearing upon the weight to be given to the testimony. Every other witness is subject to inquiry as to his interest in the outcome of the case, and I know of no reason which should exclude an attorney from the operation of the general rule. The testimony given by the attorney in the present case was perhaps not very important, but it was, in his estimation, of sufficient importance to lead him to be sworn as a witness —a course to which most attorneys resort with reluctance, and only when their client's interests seem to imperatively require that they should do so. LASSIG v. BARSKY. (Supreme Court, Appellate Term. March 24, 1904.) 1. CONDUCT OF COUNSEL-REVERSIBLE ERROR. Conveying to the jurors, in an action for personal injuries, under the guise of inquiring into their qualifications, and in the cross-examination of a witness for defendant, the information that defendant was insured against loss in case of a recovery against him, constitutes reversible error. Appeal from City Court of New York, Trial Term. Action by Mollie Lassig, an infant, against Joseph Barsky. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. Frank V. Johnson, for appellant. A. Oberstein, for respondent. PER CURIAM. In view of the information conveyed by plaintiff's counsel to the jurors, under the guise of inquiring into their qualifications, that the defendant was insured against loss in the event of a recovery against him, and a repetition of this reprehensible practice in the course of the cross-examination of one of defendant's witnesses, the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event. This disposition is called for by the decisions of Wildrick v. Moore, 66 Hun, 630, 22 N. Y. Supp. 1119; Manigold v. Black River Traction Co., 81 App. Div. 381, 80 N. Y. Supp. 861; Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494; Lipschutz v. Ross (Sup.) 84 N. Y. Supp. 632. Judgment and order reversed, and a new trial ordered, with costs to appellant to abide the event. LERTORA v. CENTRAL FRUIT CO. (Supreme Court, Appellate Term. March 24, 1904.) 1. TERM OF EMPLOYMENT EVIDENCE. Evidence in an action for salary for a period after plaintiff's discharge held insufficient to show a hiring for any definite time. Appeal from Municipal Court, Borough of Manhattan, First District. Action by David J. Lertora against the Central Fruit Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. Robinson & Robinson, for appellant. FREEDMAN, P. J. The plaintiff, claiming that he was employed by the defendant for one year from about May 1, 1903, at a weekly salary of $25 per week, and having been discharged upon June 1, 1903, brought this action to recover for 12 weeks' salary, and ob and 121 New York State Reporter tained a judgment for $300. It appears that the defendant had just been incorporated under the laws of this state, and was in need of a competent man to assist in the business. A meeting of the directors of the company was held, at which the president of the company-one John Ginocchio-five of the directors, and one of the stockholders were present. The president introduced the plaintiff to the directors, and the plaintiff testifies that they then orally employed him for one year; that no stated salary was fixed upon; that he immediately began work; that, when he began to draw his salary, it was paid to him weekly, in sums of $25 per week; and that after he had worked for five weeks he was discharged without cause. He further testified that the president of the defendant asked him to take the general management of the company, which he did for a while. He was then changed to cashier. As to being employed for one year, the plaintiff is, in a measure, corroborated by the testimony of one Murphy, who swears that, in a conversation had with the president of the company in the latter part of May, the president said "they had made arrangements with one man [designating the plaintiff] for one year at $25 per week." This testimony must be received with some caution, inasmuch as, although Murphy says the president of the defendant stated that plaintiff was hired for "$25 per week," the plaintiff swears that no stated amount of salary was fixed, and other witnesses swear that the salary was fixed at $18 per week. The plaintiff's claim to recover the sum of $25 per week, and for which sum he recovered judgment, is based wholly on the fact that during the five weeks he was in the employ of the defendant he was paid that amount each week. The president of the company, the five directors, and the one stockholder who were present when the engagement of the plaintiff was made, each testify that there was no definite time fixed for his employment, and that the plaintiff said the they (the company) were at liberty to discharge him at any time. Each of said witnesses also testified that at no time was the term of one year mentioned as being the period for which the plaintiff was to serve in their employ. We think that the plaintiff failed to show that he was entitled to recover the sum of $25 per week, and that he did not sustain the burden of proof cast upon him of showing a hiring for the term of one year, but that it clearly appears that the defendants had a right to discharge him at any time when they did not consider his services satisfactory. Although, owing to objections interposed by plaintiff's counsel which were sustained by the court, considerable testimony tending to show cause for plaintiff's discharge was excluded, enough was admitted, that was not disputed by the plaintiff, showing a sufficient reason, if any was needed, for severing the relations between the parties. A new trial must be had. Judgment reversed. New trial ordered, with costs to the appellant to abide the event. All concur. SUMMERMAN v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Term. March 24, 1904.) 1. STREET RAILWAYS-COLLISION WITH TEAM-NEGLIGENCE. Plaintiff, a boy 12 years old, while riding on the rear of a wagon, was injured by its being struck by an electric car. He testified that when the wagon was on the track the car was a block away, and that the horse was going slowly. The motorman (in business for himself at the time of the trial) testified that as he approached the crossing, going four or five miles an hour, the horse was going rapidly, and when first seen was eighteen feet ahead of the car; that as soon as he saw it he reversed, and the car, after striking the rear wheel of the wagon without injuring it, went only five feet further. He was corroborated by the motorman of another car, and the driver of the wagon testified that his horse took fright, he was unable to control it, and it dashed in front of the car. Held, that there was nothing to show negligence of the street railway company. Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Summer Summerman, by guardian, against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ. Henry W. Goddard and William E. Weaver, for appellant. Alex. A. Tausky, for respondent. FREEDMAN, P. J. This is an action to recover for personal injuries occasioned by the aileged negligence of the defendant. The plaintiff, a boy about 12 years of age, was stealing a ride upon the tail end of a wagon drawn by one horse and driven by one McLaughlin. Plaintiff testifies that he got on the wagon at the corner of Norfolk and Rivington streets; that the wagon was going west towards the Bowery; that he was sitting in the back of the wagon; that when he got to the corner of Rivington street and the Bowery he first saw the car that hit the wagon at Delancey street, and that the wagon was then right on the track. He further says that the horse was going slowly, that the car struck the wagon, and he fell or was thrown out, receiving the injuries complained of. He was not corroborated by any other witness, and no other witness was sworn in his favor. The motorman (not in the employ of the company at the time of the trial, but in business for himself) testified that he was going north with his car, and that as he approached Rivington street he was moving at the rate of four or five miles an hour; that the horse attached to the wagon in which the plaintiff was sitting was going at a rapid rate, and that it was about eighteen feet ahead of his car when he first saw it; that it drove immediately in front, and had got over the track when the car struck the rear wheel of the wagon; that as soon as he saw the wagon attempt to cross he reversed his power, and tried to stop the car, the car going only about five feet after it struck the wagon. The wagon was uninjured. The motorman was and 121 New York State Reporter corroborated by a motorman upon a south-bound car, who saw the collision. The driver of the wagon testified that when his horse got to the corner of Rivington street and the Bowery it took fright; that he was unable to control it, and it dashed in front of the car. It is difficult to see upon what theory the plaintiff can uphold this judgment upon the facts as disclosed by this testimony. If we assume that negligence of the driver of the wagon, if any there was, is not to be imputed to the plaintiff (Lafferty v. Met. St. Ry. Co., 85 App. Div. 592, 83 N. Y. Supp. 405), nevertheless the defendant must be shown to have been guilty of negligence in order to enable the plaintiff to recover. In what, therefore, did the defendant's negligence consist? It is hardly to be believed that the car was at or about Delancey street when the wagon was "right on the track," as testified by the plaintiff, for, if so, we must believe that the car proceeded nearly or quite a block while a portion of the wagon was crossing the car track, which is highly improbable. There is nothing to show that the car was not under control, or that it was going at an unusual or excessive rate of speed, nor that the wagon reached the track in time to cross in safety had the car been under complete control of the motorman. That the car was under control is strongly evidenced by the fact that it proceeded a distance of only five feet after striking the wagon and that the wagon was uninjured; and the most reasonable deduction from the testimony is that it was an unavoidable accident, for which neither the driver nor defendant was to blame. Plaintiff's attorney has handed up a brief of eight typewritten pages, presenting six points for the consideration of the court, but in no way does he make it apparent in what respect the defendant was negligent, nor point out any testimony in the case from which negligence can be inferred. The mere happening of an accident is no proof of negligence. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur. (42 Misc. Rep. 463.) In re SCHMIDT. (Surrogate's Court, Kings County. January, 1904.) 1. COMMON-LAW MARRIAGE EVIDENCE. A woman in good faith married a man whose wife was then living in a foreign country, and after the death of the latter, and until the death of the man, 13 years later, during all of which time the parties were known as husband and wife, she knew nothing of such former marriage. Held to constitute a common-law marriage between the parties. 2. DESCENT-CHILD OF COMMON-LAW MARRIAGE. A child of a common-law marriage, illegitimate because born while the first wife of the man was alive, is, the relation between the parties continuing after death of the first wife, under Laws 1895, p. 313, c. 531, entitled to a distributive share in his mother's estate equally with the chilIdren of the first marriage. 1. See Marriage, vol. 34, Cent. Dig. §§ 16, 30. |