and 145 New York State Reporter

public or private question. The defendants assert, however, that whatever they have done in the past in regard to the plaintiff's newspaper and intend to do in the future is but an enforcement of the criminal law, and that, therefore, this court should not lend its injunctive process to restrain them. They rely on Delaney v. Flood, 183 N. Y. 323, 76 N. E. 209, 2 L. R. A. (N. S.) 678, 111 Am. St. Rep. 759, in support of this assertion. This case, properly understood, and as applied by a long line of recent authorities, cannot be cited as an authority for the proposition that equity will not interfere with a seeming attempt to enforce the criminal law, but which is, in fact, a continuous trespass. The plaintiff has the right to publish a newspaper; and defendants cannot determine for themselves in advance as to the propriety of that publication and set about to suppress it every time the plaintiff attempts to publish it without committing a continuous trespass against the plaintiff's property rights. The situation seems to me to be quite a simple one. If injunctive relief cannot be granted under these circumstances, then it may become practically impossible in the future to publish any newspaper, whenever a large popular sentiment has been formed against the publication. If any future issue of the plaintiff's newspaper should in any way offend against the provisions of sections 317 and 385 of the Penal Code, it ought to be a very easy matter in such a community as Kingston to secure prompt and adequate punishment of the offending party.

An injunction will be granted therefor against the defendants, restraining them from entering upon the premises of the plaintiff for the purpose of seizing and carrying away any future issues of its publication or in any manner interfering with its publication, except in the method provided by law for the prosecution and punishment of a violation of any of its provisions. Ordered accordingly.

WERTHEIMER v. BAUM.

(Supreme Court, Appellate Term. June 5, 1908.)

1. GIFTS-INTER VIVOS-IRREVOCABILITY.

A gift inter vivos requires no consideration, and when made perfect by delivery is irrevocable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gifts, § 20.]

2. SAME-REVOCATION-BURDEN Of Proof.

One seeking to recover a ring, which he delivered to another as a gift, has the burden of showing bad faith on the part of the latter, and that the delivery of the ring to him was subject to express conditions not performed.

Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.

Action by Rachel Wertheimer against Jerome C. Baum. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Argued before GILDERSLEEVE, P. J., and DAYTON and GERARD, JJ.

Sigmund Horkimer, for appellant.

A. M. Simon, for respondent.

DAYTON, J. The action was brought to recover the possession of a diamond ring. The judgment, as amended on plaintiff's motion, awarded the plaintiff possession of the chattel, or, in the alternative, the sum of $175 and costs. The ring in question was given to defendant by plaintiff at or near the time of his engagement to her daughter. It was undisputed on the trial that defendant had given a valuable engagement ring to the daughter. For reasons which are not apparent upon the record the engagement was broken, and plaintiff, upon the theory that her gift was conditional upon the continuance of the relation, brought this action. Defendant contended that there was simply an exchange of gifts between the prospective bride and groom.

It is well settled that a gift of property requires no consideration and is made perfect by delivery, and that a gift inter vivos is irrevocable. Defendant, therefore, had title to the ring; no fraud or duress being claimed. Where goods are sold and delivery is apparently absolute, the onus of proving a conditional sale rests with the vendor. No authority has been cited holding that an unexplained failure of a condition restores title to the donor of a delivered gift. Mr. Justice Tompkins in Liebert v. Hoffman (Sup.) 105 N. Y. Supp. 337

says:

"While the law is that a gift inter vivos must be established by satisfactory proof, yet where the gift is attacked the burden of explaining the transaction is only upon the donee when some confidential or fiduciary relation existed, or where one party is mentally weak," etc.

In any aspect the plaintiff was bound to show bad faith on defendant's part, as well as delivery subject to express conditions not performed. This she did not do by preponderance of proof. On the whole case we conclude that plaintiff failed to establish a cause of action. Defendant's motion to dismiss the complaint should have been granted.

Since the judgment must be reversed, we do not deem it necessary to pass upon the objections raised by counsel for the appellant as to the manner and time of its amendment.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

GUITERMAN v. COUTANT et al.

(Supreme Court, Appellate Term. June 5, 1908.)

EXECUTION-ISSUANCE OF SECOND EXECUTION.

Under Code Civ. Proc. § 1375, authorizing the issuance of an execution as of course within five years after judgment, and section 1376, extending the right to the personal representative of a deceased judgment creditor for the same period, and section 1377, providing that after the lapse of five years an execution can issue only where an execution has been issued within five years after judgment and been returned unsatisfied, or by leave of court, where a judgment creditor issued an execution within five years after judgment, his executors were entitled to a second execution without leave.

and 145 New York State Reporter

Appeal from City Court of New York, Special Term.

Motion by Charles A. Coutant and another to vacate and set aside an execution issued without leave of the court on a judgment obtained against them by Simon Guiterman, and to cancel and discharge a notice filed pursuant to Code Civ. Proc. § 1252. From an order denying the motion (111 N. Y. Supp. 1081), plaintiffs appeal. Affirmed. See 109 N. Y. Supp. 666.

Argued before GILDERSLEEVE, P. J., and DAYTON and GERARD, JJ.

Fromme Bros., for appellants.

David J. Gladstone, for respondent.

DAYTON, J. The judgment was secured in September, 1893, and an execution issued thereupon in October, 1893, was returned unsatisfied. No further execution was issued until November 2, 1907, more than 14 years after the entry of the original judgment. This execution was issued by plaintiff's executors, plaintiff having died in February, 1906, and was set aside for failure of the notice, under section 1252, Code Civ. Proc. to properly specify the interest of the defendant in the property sought to be levied upon. Thereafter, and on March 9, 1908, the plaintiff's executors issued the present execution without leave. The appellants base their appeal upon the sole contention that under section 1376 of the Code of Civil Procedure the executors cannot now enforce their judgment by execution because no execution was issued by them within five years from the date of the original judgment.

Section 1375 of the Code of Civil Procedure authorizes the issuance of an execution as of course within five years. Section 1376 extends the right to the personal representatives of a deceased judgment creditor for the same period. Section 1377 provides that after the expiration of these five years an execution can only issue by leave of court, or where an execution had been issued within five years. It seems clear that section 1377 was intended to apply to the provisions of both sections 1375 and 1376. In other words, the manifest purpose is to require the judgment creditor (or his representatives, if he shall have died) to be diligent in the issuance of their first execution within five years after the entry of the judgment. But, if either shall have done that, then the right to issue the second execution without leave is secured. To hold otherwise would be to hold that it would be necessary for the judgment creditor or his executors to issue an execution every five years, or else to apply to the court for leave before issuing a second execution. That would seem to be unnecessary if the first execution were returned unsatisfied; and we do not think such an intendment can be read into the statute.

The order must be affirmed, with $10 costs and disbursements. All

concur.

RICHARDS v. WHITING.

(Supreme Court, Appellate Division, Second Department. June 5, 1908.) DISCOVERY-EXAMINATION OF PARTY BEFORE TRIAL.

The fact that a party has personal knowledge on a question in issue, or has other evidence thereon, is no reason for refusing to allow him to examine his adversary on the issue before trial./

Appeal from Special Term, Kings County.

Action by Paul M. Richards against Charles S. Whiting. From an order denying defendant's motion to modify an order for his examination before trial, he appeals. Affirmed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

C. S. Keyes, for appellant.

J. Aspinwall Hodge, for respondent.

GAYNOR, J. The complaint alleges a contract between the plaintiff and the defendant that all commissions on real estate transactions by the latter with persons introduced to him by the former should be equally divided. It is conceded that an examination before trial should be had, but contended that it should be limited to proof of the transactions had with persons so introduced and the commissions earned thereon. The defendant should not be examined to prove the contract or to show the persons introduced, it is claimed, for the reason that the plaintiff must have personal knowledge thereof and can testify to it himself on the trial. That a party has other evidence on an issue is not a reason for refusing to allow him to examine his adversary on the issue. On the contrary, such examination may avoid the necessity of calling witnesses. It might seem that due regard for recent decisions would deter the taking of appeals like this. Shonts v. Thomas, 116 App. Div. 854, 102 N. Y. Supp. 324; Donaldson v. Brooklyn Heights R. Co., 119 App. Div. 513, 104 N. Y. Supp. 178; Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526, 97 N. Y. Supp. 1078; McKeand v. Locke, 115 App. Div. 174, 100 N. Y. Supp. 704; Koplin v. Hoe, 123 App. Div. 827, 108 N. Y. Supp. 602; Cherbuliez v. Parsons, 123 App. Div. 814, 108 N. Y. Supp. 321.

The order should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.

RYAN V. NEW YORK & Q. C. RY. CO.

(Supreme Court, Appellate Division, Second Department. June 5, 1908.) EVIDENCE-RELEVANCY-CHARACTER.

In an action against a street railway for injuries to a passenger in alighting from a car, testimony of a witness, who had stated that plaintiff was drunk at the time of the accident, as to whether he had seen plaintiff drunk on other occasions, was inadmissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 186

and 145 New York State Reporter

Appeal from Municipal Court of New York.

Action by Patrick J. Ryan against the New York & Queens County Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before WOODWARD, HOOKER, RICH, MILLER, and GAYNOR, JJ.

Anthony J. Ernest, for appellant.

John Hetherington, for respondent.

WOODWARD, J. This is an action to recover for personal injuries, due to the alleged negligence of the defendant in starting its car before the plaintiff, who had signaled for a stop, had had an opportunity to alight. There was a clear conflict of evidence as to whether the car had stopped or not when the plaintiff stepped off, and we are of the opinion that the weight of evidence is not against the conclusion reached by the jury.

The only other suggestion for a reversal of this judgment is the alleged error of the trial court in excluding evidence. Defendant's witness had testified to the effect that the plaintiff was drunk, or appeared to be drunk, at the time of the accident, and that he stepped off the car in spite of the motorman's warning not to do so. The witness was then asked as to whether he had seen the plaintiff drunk on other occasions, and this was, on objection, excluded. We are entirely clear that evidence of the plaintiff's habits of life was not admissible to prove that he was drunk at the time this accident occurred, and no case to which our attention is called gives any color to such a contention. There are cases in which such evidence might be admissible, but they are not cases of this character.

The judgment appealed from should be affirmed, with costs. All

concur.

PEOPLE ex rel. MT. VERNON TRUST CO. v. MILLARD, Town Supervisor. (Supreme Court, Appellate Division, Second Department. June 12, 1908.) MANDAMUS-APPEAL--DECISIONS REVIEWABLE-FINALITY OF DETERMINATION.

An appeal will not lie by relator from an order denying a peremptory writ of mandamus, but directing that an alternative writ issue.

[Ed. Note. For cases in point, see Cent. Dig. vol. 33, Mandamus, § 429.]

Appeal from Special Term, Westchester County.

Application by the people, on the relation of the Mt. Vernon Trust Company, for a peremptory writ of mandamus against Charles D. Millard, as supervisor of the town of Greenburgh. From an order denying a peremptory writ, but directing that an alternative writ issue, relator appeals. Appeal dismissed.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

Arthur M. Johnson, for appellant.

Hugh A. Thornton, for respondent.