actual intent to do these persons any injury, yet the heedlessness and negli. gence of the act you may characterize as wanton, and impute malice from that, and an undue disregard of the rights of the individual."

The jury were finally authorized to award actual damages, with or without punitive damages, or award simply nominal damages. At the close of the charge, defendants' counsel excepted to that portion. of the charge which instructed

"The jury that they may give damages by way of punishment, it being conceded there was no actual malice either upon the part of the defendants or their agents. By the Court: You will not misunderstand the court upon that proposition. They have disclaimed any actual malice, and the court has told you that must be accepted by you as true; that they did not at the time actually intend to inflict injury. Consequently, from that statement, you would not be justified in awarding damages by way of punishment. But if you find that they could have found out the truthfulness or untruthfulness of this charge which they made, and they failed to make any investigation, or failed to attempt to make any investigation, you would be able to find such action upon their part, or upon the part of their agent, was a wanton act of negligence, from which the law would imply malice; and you would be authorized to award vindictive damages, if you so find."

It would seem from this that the jury were fully instructed that, so far as the existence of ill will in the minds of the defendants was concerned, it found no basis of support, and must not be taken into consideration. This left the case, in this branch, to stand or fall as the jury should characterize the circumstances of the publication justifiable, or reckless and wanton. In this regard the charge seems to be, within the authorities cited, strictly within the law, and the exception thereto is not available.

At the close of the last-noted charge the defendants requested the court to charge "that, unless defendants were moved by actual malice, the jury should not award the plaintiff damages by way of punishment." The court charged, "Yes, I charge you they must be moved by actual malice; but you may find actual malice if you find they failed to make an investigation as to the truthfulness of the charge." If this charge could be construed as meaning to convey the idea that "actual malice," as here used, meant personal ill will, then it might not be sustained; but in view of the fact that the jury had been fully instructed upon that subject, and as the court added the clause referring to the evidence upon which such finding must be based, although not so full as before, must have left the jury in the full possession of the fact that such malice must be found from the evidence already called to their attention, and explained in detail several times. The request was not new, and the court could have refused it without error, for its subject had already been fully covered by the prior charge, and was not changed by this. The conclusion is therefore reached that no error was committed in the charge which was made the subject of an exception.

I have examined and re-examined this case with much care, in order to satisfy myself if legal error existed, and can find none. The verdict is large. So, equally, is the published charge severe and harsh. It was an untrue and false charge; the defendants placed it within the power of their agent to make it, and vested him with the discretionary power to insert or withhold. It was therefore,

in legal sense, their act. A thousand copies of defendants' paper, containing the charge, were sent to plaintiff's city or residence, and other copies, containing the same charge, but of a prior edition, had also gone before to the same city. Under these circumstances, and after a careful examination of the reported cases, I am unable to find one justifying interference with the conclusion reached by the jury. In many it has been denied. Coleman v. Southwick, 9 Johns. 51; Fry v. Bennett, 9 Abb. Pr. 53; Whiteman v. Leslie, 54 How. Pr. 495; Alliger v. Brooklyn Daily Eagle, (Sup.) 6 N. Y. Supp. 110; Association v. Rutherford, 51 Fed. 513, 2 C. C. A. 354; Robertson v. Bennett, 44 N. Y. Super. Ct. 71. I am cited to no authority by defendants, and find none, after careful examination, deciding a contrary doctrine. It follows from this conclusion that the motion for a new trial must be denied, with costs.

(6 Misc. Rep. 168.)

DONNELLY CONTRACTING CO. v. STANTON et al

(Superior Court of Buffalo, Special Term.

December, 1893.)

ATTACHMENT-FRAUD-DECLARATIONS OF DEBTOR. An attachment on the ground that defendants were about to dispose of their property with fraudulent intent will be vacated, where the only proof of fraud is a statement, made by defendants, that they intended to sell certain goods; that they would not have money to pay plaintiff, or any of their creditors, and would not pay them; and that plaintiff I could stand it.

Action by the Donnelly Contracting Company against J. W. Stanton and Samuel N. Amm. Defendants moved to vacate an attachment theretofore granted against their property. Granted.

George B. Webster, for plaintiff.

John Hubbell, for defendants.

HATCH, J. The attachment in this action was issued upon the ground that the defendants were about to dispose of their property with intent to cheat and defraud their creditors. The motion to vacate is based upon the ground, among others, that the proof is insufficient to establish the charge. The proof of fraud is contained

in an affidavit of a third person, and reads:

"State of New York, County of Erie, City of Buffalo-ss.: "John Reedy, being duly sworn, deposes and says that he resides in the city of Buffalo, New York, at No. 140 South Michigan street; that he knows J. W. Stanton and Samuel N. Amm, composing the firm of J. W. Stanton & Co., of said city, and have transacted business with them; that he also knows the Donnelly Contracting Company, and the officers thereof; that the said firm of J. W. Stanton and Company have been engaged in clearing the property on which the Coatsworth elevator was situated before it burned, in August, 1893; that he has heard conversations between said Stanton, Amm, and others in their employ, and that in said conversation said Stanton and Amm have said that they did not and would not have the money to pay the said Donnelly Contracting Company, or any other of their creditors, and that they intended to sell the iron received by them from the ruins of the Coatsworth elevator. Deponent further says that said Stanton and Amm

have said, in deponent's presence, that they would not have money to pay any of their creditors, and would not pay them, and that the said Donnelly Contracting Company had a large office, and could stand it.

"Sworn to before me this 13th day of December, 1893.

"John Reedy.

"E. J. Plumley, Notary Public."

The words from which fraud is to be inferred rest in the statement of declarations made by defendants to the effect that they would not have money to pay plaintiff, or any of their creditors; that they intended to sell the iron received by them, and would not have money to pay any of their creditors, and would not pay them; and that plaintiff could stand it. No allegation is made, or proof given, that defendants have committed any act with respect to any property owned or controlled by them which lends color to the inference of fraud. The attachment, therefore, rests solely upon the alleged declarations. The declaration that they would not have money with which to pay plaintiff and their other creditors does not show fraud, or tend to show it. The mere inability to pay, for lack of money, would, at one time or another, have involved nearly every person carrying on business, and the most perfect honesty can exist without ability to pay. The further declaration that they intended to sell the iron, and would not pay their creditors, and would not have money to pay any of their creditors, is still consistent with an innocent intent. It does not appear how much iron there was to sell, or what its value was; and it might be entirely true that all of the proceeds derived therefrom would be insufficient to pay any of their creditors, and would still leave them without money wherewith to pay, as the whole proceeds might be exhausted in marketing it. Giving full force to all the statements made, they are consistent with a reason for not paying based solely upon a lack of money with which to pay. In order to establish a fraudulent intent, the allegations must necessarily tend to establish a probability of guilt. Morris v. Talcott, 96 N. Y. 107. The evidence tending to such result must be adequate to sustain a verdict based on fraud. Bank v. Meehan, (Sup.) 20 N. Y. Supp. 766; Stow v. Stacy, (Sup.) 9 N. Y. Supp. 1. No strength is added to the statements that plaintiff had a large office, and could stand it.

This may have been a consoling reflection to the debtors,—that, although they were unable to pay, yet the plaintiff would not suffer actual want from such fact, but it is far from showing that they willfully intended to cheat plaintiff because it could stand it. All of the statements, taken together, being still consistent with innocence, the attachment based thereon must fail. The order is that the attachment be vacated and set aside, with $10 costs of motion. Attachment vacated.

(6 Misc. Rep. 429.)

KUHLMAN et al. v. CITY OF BROOKLYN.

(City Court of Brooklyn, General Term. January 22, 1894.)

EMINENT DOMAIN-COMPENSATION-RIGHTS OF MORTGAgee.

A mortgage of city lots, which excludes from the premises described therein so much as had been taken for the widening of a street, and restricts the conveyance to the parts of the lots not taken, does not convey the award for the portions taken. Engelhardt v. City of Brooklyn, 21 N. Y. Supp. 777, 3 Misc. Rep. 30, distinguished.

Appeal from trial term.

Action by Wilkin Kuhlman and others against the city of Brooklyn. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

Argued before VAN WYCK and OSBORNE, JJ.

Chas. C. Smith, for appellants.

Almet F. Jenks, for respondent.

VAN WYCK, J. This is an action to recover awards made for land (the front strips of two lots) taken for the widening of North Second street in this city, under an act passed April 19, 1871, (Laws 1871, c. 559.) This is an appeal from a judgment in favor of defendant. Plaintiffs' alleged claim to the awards rests upon a mortgage made after the passage of the act, which mortgage expressly excludes from premises described therein the land taken for the widening of this street, and restricts the conveyance to the parts of the lots not taken. No intention to assign these awards can be inferred from this mortgage. In Engelhardt v. City of Brooklyn, 3 Misc. Rep. 30, 21 N. Y. Supp. 777, cited by plaintiffs, and Delap v. City of Brooklyn, 3 Misc. Rep. 22, 22 N. Y. Supp. 179, we held that there was an assignment, for the reason that the mortgages in those cases were the exact reverse of this one, in that they conveyed the whole of the lot by metes and bounds, as if no part thereof had been taken for the widening of the street. Judgment must be affirmed, with costs.

(6 Misc. Rep. 441.)

BYRNE V. BROOKLYN CITY R. CO.

(City Court of Brooklyn, General Term. January 22, 1894.)

MASTER AND SERVANT-SAFE PLACE FOR SERVANT TO WORK IN.

The fact that the side of an excavation gave way because of the insufficiency of the grade shows a failure of the duty to provide a safeplace for the men at work in the excavation.

Appeal from trial term.

Action by Ann Byrne, as executrix of Philip J. Byrne, deceased, against the Brooklyn City Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before CLEMENT, C. J., and OSBORNE, J.
Morris & Whitehouse, for appellant.

Thos. E. Pearsall, for respondent.

OSBORNE, J.

Plaintiff brought this action, as administratrix of her son, Philip J. Byrne, to recover damages from the defendant for having negligently caused his death. She obtained a verdict in her favor for $2,000, and defendant appeals.

In and previous to the month of May last, defendant was engaged in the construction of a large power house on First avenue, in this city, extending from Fifty-Second to Fifty-Third streets. Prior to May 23d, the cellar had been excavated some 20 to 25 feet, and the foundation walls along the First avenue side had been built up, with the exception of an opening in the wall about 15 feet wide at the base, and widening on each side, after the manner of steps, till it reached the top of the wall. Outside of this was a bank some 15 feet high, extending up to the street level. Plaintiff put in evidence tending to show that this bank was negligently constructed or graded, in that it had a slope of but 5 to 6 feet, while defendant offered evidence to show that this bank had a slope of from 15 to 16 feet. It was further shown that the floor of the cellar in front of this First avenue foundation wall had been concreted for a distance of some 8 or 10 feet or more back from the wall, including the space in front of the opening. On or in the face of this bank, and opposite the opening, was a large boulder, some 4 or 5 feet wide one way and 3 feet the other way, and about 2 feet thick, and weighing upwards of 2 tons. About one-third of this boulder protruded from the face of the bank. Plaintiff's witnesses testified that the bottom of this boulder was about 4 feet above the level of the cellar floor, while it was testified on behalf of the defendant that it was only from 9 to 12 inches above the cellar floor. On May 23d the deceased was, for the first time, employed on the work. He commenced work at half-past 8 o'clock in the morning. Until about 11 o'clock, he was pounding down the earth used for filling in between the foundation wall and the bank. Then he was put to work shoveling sand about the middle of the cellar. Plaintiff's evidence went to show that a considerable quantity of earth had from time to time, previous to the day in question, fallen from this bank through the opening in the wall onto the cellar floor, so that it extended out some 8 or 10 feet on the floor; that, between 2 and 3 o'clock in the afternoon, deceased and two other men were sent to shovel away this accumulation of earth; that while deceased was so engaged, and after working there about three-quarters of an hour, and when standing some 5 feet back from where the boulder was, the earth or sand supporting the boulder suddenly gave way, and the boulder was precipitated onto the deceased, and caused his death. On the part of the defense, the evidence was to the effect that the deceased and two other men were sent to dig out a trench in the above-mentioned opening, on the line of the wall already constructed, for the purpose of laying a cement foundation on which to build up the continuation of the foundation wall across the opening, and that, while so engaged in the trench with his fellow workmen, the boulder was caused to fall, by reason of the excavating that they were engaged in.

The learned trial judge charged the jury that, if the contention