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Opinion of the Court, by SEDGWICK, J.

I, however, think that the defendants should have leave to take the case to the court of appeals. The rule of law involved is important, and affects many persons that hold, in the large and varied business of this state, the relations that subsisted between the parties to this action. As yet, the court of last resort in this state has not settled the principles that should control. In Hunt v. Roberts (45 N. Y. 696), Judge RAPALLO, said that the court "was clearly of opinion that after a breach which will justify the termination of the contract, the surety has the right to require that the contract with the principal be terminated, and the claim against the surety confined to the damages then recoverable." Whether such a rule is to be applied, through inferences to be drawn from it, to a case like the present, has not been determined, so far as I know, by the court of error or of appeals. These considerations bring the present motion within Butterfield v. Radde (38 N. Y. Sup'r Ct. 44).

The motion that defendants have leave to appeal to the court of appeals, should be granted, on condition that defendants give notice of appeal, and file security within thirty days. In case of perfecting the appeal there should be ten dollars costs of motion and disbursements, to abide event, otherwise the plaintiff to have the like amount of costs and their disbursements.

SPEIR, J., concurred.

Opinion of the Court, by SEDGWICK, J.

FRANZ DELCOMYN, PLAINTIFF AND APPELLANT, v. JOHN C. CHAMBERLAIN, ET AL., DEFENDANTS AND RESPONDENTS.

TAXATION OF COSTS.

In the taxation of a bill of costs, including fees paid to a commissioner for the examination of the plaintiff, where the court, making the order for the commission, made no order for the taxation of the costs, and where no person was examined except the plaintiff, the fees paid to such commissioner should not be allowed. A different practice would lead to abuses difficult to check.

Before SEDGWICK and SPEIR, JJ.

Decided May 3, 1875.

Appeal from order, directing a re-taxation of costs. The plaintiff took out an order to examine himself and other persons as witnesses, under a commission issued to London. The plaintiff who lived in London, was, in fact, the only witness examined. The plaintiff recovering judgment, the clerk in taxing his costs allowed, as a disbursement, the amount paid to the commissioner as fees. The court below ordered a re-taxation, disallowing the commissioner's fees. The appeal is from this order.

George De Forest Lord, for appellant.

Benj. F. Dunning, for respondents.

BY THE COURT.-SEDGWICK, J.-The court making the order for a commission had power to direct, as one of the terms, that a disbursement of the kind in question might be taxed. In the ab nce of such a

Statement of the Case.

provision, we think the court below made a proper disposition of the application. We are of opinion that a different practice would lead to abuses difficult to check.

The order is affirmed, with ten dollars costs.

SPEIR, J., concurred.

JOHN P. O'SULLIVAN, PLAINTIFF AND APPELLANT, v. MARSHALL O. ROBERTS, DEFENDANT AND

APPELLANT.

EVIDENCE,

RECEPTION OF, WHEN ERROR, NOT CURED BY SUBSEQUENT WITHDRAWAL OF SAME IN A TRIAL BEFORE JURY.

This action was brought to recover the value of certain services
performed by the plaintiff for the defendant, in Mexico,
claimed to be worth fifty thousand dollars, but for which
plaintiff recovered in this action ten thousand dollars, from
which judgment both parties appealed.

This court on appeal, held that there was a valid agreement be
tween the parties that would support the claim of the plain-
tiff on a quantum meruit, and that the real question in the
case was as to the amount that plaintiff should recover; but on
the review of some of the exceptions to evidence received
under objection by the court below, a new trial was ordered.
These exceptions are embraced in the following points:
The plaintiff, as a witness, had stated that at Orizaba, on the way
from Vera Cruz to Mexico, he fell sick, and in consequence
thereof he stayed at Orizaba six weeks. He was then asked,
"What expenses were you put to by your illness there?" and
he answered after objection, &c., that his expenses were six or
seven hundred dollars, gold.

The general term held this testimony to be inadmissible, and
that the error of the court was not cured by the subsequent di-

Statement of the Case.

rection of the judge at the close of the trial, in his charge to the jury, to disregard it, and his order to strike it out from the testimony in the case.

This evidence had already (at the time it was stricken out) had its effect upon the jury, and it can not be said that their judgment was not influenced thereby. The cases of Anderson v. The Rome, W. & Ogd. R. R. Co. (54 N. Y. 334), and Erben v. Lorrillard (19 N. Y. 302), are precedents clearly against the admission of this testimony.

There was also error in allowing the jury to take into consideration the subject and expense of entertainments given by the plaintiff in Mexico to the emperor and empress, and to the emperor's cabinet ministers, when there was no proof before them of their value or of what they consisted.

Before SEDGWICK and SPEIR, JJ

Decided May 3, 1875.

This action is brought to recover for the plaintiff's services in going to Mexico, in the year 1866, at the request of the defendant, and procuring a ratification. of a prior grant in relation to the New York and Tehuantepec Railroad and Steamship Company, from the then imperial government of Mexico. The complaint alleges that the services were successfully performed by the plaintiff, and that they were reasonably worth fifty thousand dollars.

The answer is a general denial, and sets up that the plaintiff undertook to procure a ratification of said grant by Maximilian, and that defendant agreed to pay him, therefor, the sum of two thousand dollars in coin, and no more, which sum was paid by him to the plaintiff. It further sets up that the defendant agreed, in the event that said grant was valid and subsisting, and a valid and indisputable title to said grant duly approved by Maximilian, and the formation of said corporation to construct and operate the road under said grant, to issue to said plaintiff out of the capital stock to the nominal amount of fifty thousand dollars.

Statement of the Case.

The answer further sets up, that the prior grant had lapsed, and that the prior company had nothing which it could convey to the defendant, and the alleged ratification was of no force or effect. It also alleges a counter-claim of money, to the extent of a thousand dollars, advanced to the plaintiff.

The reply put in issue the counter-claim. At the close of the case, the following question was submitted to the jury, "Did the defendant, Marshall O. Roberts, after the return of the plaintiff from Mexico, accept the result of the plaintiff's mission to Mexico, as a performance of the plaintiff's part of the agreement." To which the jury answered, "Yes."

The jury also found a general verdict for the plaintiff, for thirteen thousand five hundred and ninety-three dollars and fifty-seven cents, as the value of the services of the plaintiff, deducting one thousand dollars, the counter-claim.

A motion was made by the plaintiff to amend the general, verdict by making it seventy-three thousand nine hundred and thirty-two dollars and five cents, claiming that amount as the contract price, on the ground that the only point at issue, was whether the plaintiff had performed or the defendant had accepted what the plaintiff had done as a performance of the contract. This motion was denied, and the plaintiff excepted. The plaintiff also moved on the same ground on the special verdict, which was denied, and an exception taken.

The defendant's counsel moved for a new trial upon the judge's minutes, which was denied, and they excepted.

Both parties appeal.

James H. Fay, attorney for the plaintiff; Albert Stickney, of counsel.

Brown, Hall & Vanderpoel, attorneys for defend

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