It does seem to me that the prevailing opinion contains many assumptions and inferences that are unwarranted, and that unproved assertions, however ably or adroitly stated, ought not to supply the place of proof. It is impossible within the proper limits of this opinion to point out in detail all the instances where matters are stated as facts of which I find no proof, and conclusions are asserted not justified by or to be fairly inferred from the evidence in the record. In some instances there is mere extravagance of statement rather than total inaccuracy, still as to most of the essential elements of the case they may be said to be both. The former may be illustrated by the statements as to the character and extent of the defendant's knowledge of the insolvency of the bank; the latter by assertions that the defendant fraudulently concealed the condition of the bank; that his diligence was to carry out his personal ends at the expense of official constancy; that he procured the taking of *Page 527 deposits for the benefit of favored depositors; that there were close relations between some of the officers of the bank and the state treasurer, and others of a similar character. These statements are based upon the opinion as it stood when the case was decided.
By this action the plaintiff sought to recover the amount of several deposits made in the Madison Square Bank upon the seventh and eighth days of August, 1893. The persons who made them having assigned their claims to the plaintiff, this action was brought. The defendant was a director of the bank, but occupied no other position in or relation towards it except that of a stockholder and depositor. The bank was under the control and management of its president, cashier and other executive officers and employees, subject only to the supervision and control of the board of directors, which consisted of eleven members. The defendant stood in no contractual or personal relation with the plaintiff or his assignors. His only position as to the bank was that of an unpaid agent, with no powers except such as might be exercised as a member of the board of directors. Although the defendant with a majority of his associates might control the affairs of the bank, yet, as an individual director, he had no power or authority to dictate either as to its policy or the method of transacting its business. Such being the relation of the parties, and such being the only powers which the defendant could properly exercise, it seems manifest that he was not individually liable for the manner in which the business of the bank was transacted, unless some power to control its affairs was delegated to him by the board or unless he was shown to have been guilty of some act of usurpation which resulted in loss or injury to the plaintiff's assignors. That there was any delegation to him of power to control or manage the business or affairs of the bank cannot be even pretended. Nor was there proof of any act of usurpation upon his part which would justify a court or jury in finding that the affairs of the bank were directed, managed or controlled by him.
The relation between the bank and its depositors was that *Page 528 of debtor and creditor. The acts of the officers of the bank to whom the power of management was delegated by the board of directors would render the bank responsible therefor to depositors if within the power delegated. If the officers transcended their authority in dealing with depositors, a right of action against them in favor of the depositors might exist. But an individual director would not be liable for the acts of such officers unless they were performed under his direction or under circumstances where he was responsible as principal for their acts as his agent. Although the relation which existed between the bank and its trustees was that of principal and agent, and the relation between the trustees and depositors has been said to be similar to that of trustee and cestui que trust (Hun v. Cary, 82 N.Y. 65), yet they are not trustees in any technical sense. (Briggs v. Spaulding, 141 U.S. 132, 147.) Ordinarily, that relation exists not between depositors and individual directors, but between the depositor and the board of directors as such. Certainly, where a power is conferred upon a body of directors, it cannot be properly said that each member individually and severally is to be regarded as a trustee for depositors when he has no authority to control the affairs of the bank, or to direct or restrain the act for which he is sought to be made responsible. We are aware of no principle upon which such a doctrine can be sustained. If each individual director were to be held responsible for the acts or defaults of the executive officers of a bank, of his co-directors, or even for his own honest mistakes or errors of judgment while acting in good faith in his capacity of director, it would put an end to all such offices, as none would be found who would accept them. In discussing the question of the liability of bank directors, Vice-Chancellor McCOUN, in Scott v. Depeyster (1 Edw. Ch. 513, 541), said: "I know of no law which requires the president or directors of any monied institution to adopt a system of espionage in relation to their secretary or cashier or any subordinate agent, or to set a watch upon all their actions. * * * But, without some fault on the part of the directors, amounting either to negligence *Page 529 or fraud, they cannot be liable." In Wakeman v. Dalley (51 N.Y. 27, 32) Judge EARL, in relation to a director, observed: "He was simply a director, and as such attended some of the meetings of the board of directors. As he was a director, must we impute to him, for the purpose of charging him with fraud, a knowledge of all the affairs of the company? If the law requires this, then the position of a director in any large corporation like a railroad, or banking, or insurance company is one of constant peril. The affairs of such a company are generally, of necessity, largely intrusted to managing officers. The directors generally cannot know, and have not the ability or knowledge requisite to learn, by their own efforts, the true condition of the affairs of the company. They select agents in whom they have confidence and largely trust to them. They publish their statements and reports, relying upon the figures and facts furnished by such agents; and if the directors, when actually cognizant of no fraud, are to be made liable in an action of fraud for any error or misstatement in such statements and reports, then we have a rule by which every director is made liable for any fraud that may be committed upon the company in the abstraction of its assets and diminution of its capital by any of its agents, and he becomes substantially an insurer of their fidelity. It has not been generally understood that such a responsibility rested upon the directors of corporations, and I know of no principle of law or rule of public policy which requires that it should." A similar doctrine was held in Hallmark's Case (L.R. [9 Ch. Div.] 329, 332) and inBriggs v. Spaulding (supra), where the principle of these cases was followed. We think the proof established no cause of action in favor of the plaintiff against the defendant by reason of the defendant's having been a director of the Madison Square Bank and the plaintiff's assignors having been depositors therein. Indeed, it is manifest that the plaintiff in bringing this action recognized that fact, and, therefore, based his right of recovery, not upon the relation between the parties of director and depositors, not upon the ground of negligence, *Page 530 but upon the sole ground that the defendant was guilty of fraud and deceit. Such was his complaint, and if its allegations were supported by the evidence, then he was entitled to recover and this judgment should be affirmed, but clearly not otherwise.
When we turn to the pleadings we find that the allegations of the complaint, so far as they relate to the defendant, were that he was a director of the Madison Square Bank; that he, with two other directors, constituted a committee having the charge, direction and management of the bank, and that he was an officer and agent and in actual control of said bank and managed and directed the affairs thereof; that with his knowledge and by his direction the bank was open for the regular transaction of business on August seventh and eighth, and that he then and there, for the purpose of inducing, and intending to induce, depositors to deposit their money in said bank, in violation of his duty and in violation of the statute, kept the bank open and directed, permitted and allowed it to be and remain open for the purpose of receiving deposits and for the regular transaction of business; that he then and there for that purpose represented to the depositors that the bank was solvent and could lawfully and properly accept deposits from such depositors; that such representation was false, and the defendant knew it to be false; that the bank was then hopelessly insolvent, and the defendant then knew that fact, and that the bank could not lawfully or properly accept such deposits. These allegations were denied by the answer, and thus were presented all and the only issues involved in this action.
While it was admitted that the defendant was a director there was no proof whatsoever that he was a member of any committee, or that he otherwise than as a member of the board of directors and in conjunction with a majority thereof had any charge, management or direction of the business of the bank, or that he was an officer or agent of it, or in actual control, or managed or directed its affairs. Nor was there any evidence that on August seventh and eighth the bank *Page 531 was, by his direction or even with his knowledge, kept open for the regular transaction of business, or that he for any purpose kept said bank open, or directed or allowed it to remain open for the purpose of receiving deposits or for the regular transaction of business. Nor is there any proof that he then or at any other time, for any purpose or with any intention whatever, represented to the depositors that the bank was solvent and could lawfully and properly accept deposits. Therefore, so far as any fraud upon the part of the defendant is concerned, no liability can be based upon these allegations of the complaint, because they are totally unsubstantiated by the proof. Indeed, such was the decision of the trial court, and its instructions to the jury were as follows: "Now, as I have said, the simple fact that he was a director does not make him liable, but understand that the only way that he can be made liable in this case is that he assumed to direct, and that he did actually direct, the manner of receiving deposits, and that he took part in the receipt of deposits either by direction; it is not necessary that he should have stood directly behind the counter and received the deposits, but that he took some part or control in receiving the deposits so they got into the bank, and, as I said, if you find that is so, together with the other fact that the bank was insolvent then the plaintiff has made out his case. * * * Mr. Jenner: I ask your Honor to charge that Mr. Uhlmann is not liable in this action for any consequences of any negligence that might be imputed to him in not taking care of the affairs of the bank in his capacity as director. The Court: I have substantially charged that, that he is only liable if he took part in the receiving of the deposits made by these depositors, knowing that the bank was insolvent, and whatever negligence he may have been guilty of in caring for the assets of the bank is not to be considered in this action."
Thus the only theory upon which the plaintiff was allowed to recover was, that the defendant knew the bank was insolvent and actually participated in directing the receipt of deposits after he became possessed of that knowledge. While *Page 532 the proof of the defendant's statements was perhaps sufficient to justify the submission to the jury of the question whether the defendant knew that the bank was insolvent immediately anterior to the seventh or eighth of August, when the deposits of the plaintiff's assignors were made, still, there is no proof that he directed the receipt of deposits upon those days, or that he participated therein, or had any knowledge that such deposits were being received. The proof upon this question was that after examining the affairs of the bank, so far as was possible in the limited time he had, and in view of the confusion and complication of its affairs, and the uncertainty as to the value of its securities and assets, the defendant reached the tentative conclusion that the bank was insolvent or in a critical condition, and that upon ascertaining that fact both he and Mr. McDonald, who was another director, stated to the cashier, who was in charge of the bank, that it would not be right for it to receive deposits, owing to the showing made by statements furnished by the bookkeeper. After this statement as to the course that should be pursued, which was made in the presence of McDonald, and of Thompson who was also a director and the cashier, obviously ignoring or disregarding the suggestion of the defendant, McDonald inquired of Thompson what could be done, and then McDonald told him to take deposits on Monday in a specified method which insured protection to the depositors. But there was no proof that after having expressed the opinion that the bank should not receive further deposits, the defendant either withdrew his proposition or in any way acted upon or assented to the proposal of McDonald to receive deposits in the provisional manner suggested. Having expressed his views as to the course that should be pursued, obviously he was not required to contest the views of a co-director of equal authority, which were apparently concurred in by another, or be found guilty of fraud therefor, especially as the plan proposed would fully protect depositors. Therefore, as the theory upon which the case was tried and decided was that the defendant actually participated in the direction that deposits should be received *Page 533 by the bank after it was insolvent, and as there was no evidence whatever to establish it, the judgment below cannot be properly sustained.
While the learned trial judge submitted to the jury two questions: 1. Whether the defendant knew at the time the deposits were made that the bank was insolvent; and, 2. Whether he took part in directing the receipt of deposits by the bank, knowing it was insolvent; still, as there was no evidence to sustain the latter finding, the court erred in thus submitting those questions to the jury. If we assume that the defendant knew of the insolvency of the bank or that it was in a critical condition, still, as there was no evidence that he took any part in directing the receipt of those deposits or that he had any knowledge that they were so received, it becomes manifest that the cause of action alleged was not sustained by the proof.
While a somewhat persistent effort was made to induce this court to hold that the jury had a right to infer from the proof and circumstances established that the defendant participated in directing or himself directed that the deposits of the plaintiff's assignors should be received after he became aware of the insolvency of the bank, yet any fair and unprejudiced reading of the record discloses that it is entirely barren of proof to justify any such inference. Therefore, as "insufficient evidence is no evidence," the verdict in that respect was without any proof to sustain it. But it is now sought to uphold the judgment upon the basis of a mere guess or conjecture which this court has repeatedly said can never be made the foundation by which the property of one person can be transferred to the possession and profit of another. As was said by CHURCH, Ch. J., to establish fraud "tangible facts must be proved, from which a legitimate inference of a fraudulent intent can be drawn. It is not enough to create a suspicion of wrong, nor should a jury be permitted to guess at the truth." (Jaeger v. Kelley, 52 N.Y. 274, 276.) That the burden of proof in this case was upon the plaintiff, who was bound to establish the fraud alleged; that such fraud was the *Page 534 cause of the injury for which he seeks to recover, and that a jury will not be permitted to base a verdict upon surmise, upon mere food for speculation or to enter into the realm of conjecture to find a verdict is sustained by a long line of authorities in this court. (Baulec v. N.Y. H.R.R. Co.,59 N.Y. 356; Pollock v. Pollock, 71 N.Y. 137, 153; Cordell v.N.Y.C. H.R.R.R. Co., 75 N.Y. 330; Dubois v. City ofKingston, 102 N.Y. 219; Bond v. Smith, 113 N.Y. 378, 385;Pauley v. S.G. L. Co., 131 N.Y. 90, 98, 100; Linkauf v.Lombard, 137 N.Y. 417, 425; Hemmens v. Nelson, 138 N.Y. 517;People ex rel. Coyle v. Martin, 142 N.Y. 352; Hudson v. R., W. O.R.R. Co., 145 N.Y. 408; Cadwell v. Arnheim,152 N.Y. 182; Hannigan v. Lehigh H.R. Ry. Co., 157 N.Y. 244;Laidlaw v. Sage, 158 N.Y. 73, 94; Jefferson Co. Nat.Bk. v. Townley, 159 N.Y. 490, 496; Shotwell v. Dixon,163 N.Y. 43, 52; Lopez v. Campbell, 163 N.Y. 340, 348.) In theBaulec case, Judge ALLEN said that a scintilla of evidence, or a mere surmise would not justify the judge in leaving a case to the jury. In Pollock v. Pollock, Judge FOLGER said that insufficient evidence in the eye of the law is no evidence, and then added the language of MAULE, J., in Jewell v. Parr (13 C.B. 916): "When we say that there is no evidence to go to a jury, we do not mean literally none; but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established." In the Bond case, EARL, J., said: "She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises." In the Pauley case, Judge FINCH said: "A mere conjecture built upon a bare possibility will not suffice to transfer the money or property of one man to the possession and profit of another." In Linkauf v. Lombard, Judge GRAY declared: "To permit a jury to speculate and surmise upon a question of responsibility is to withdraw from the litigant a safeguard intended for the protection of his rights." The other cases cited are to the same effect.
Although a material fact may be established by circumstantial *Page 535 evidence yet, to do so the circumstances proved must be such as lead fairly and reasonably to the conclusion to be established, and must fairly and reasonably exclude any other hypothesis. A party, to establish a cause of action based upon fraud or wrongdoing, must show affirmatively facts and circumstances which necessarily tend to establish a probability thereof. It can only be established by proof of such circumstances as are irreconcilable with any other theory than the guilt of the person charged. If the evidence is capable of any interpretation which makes it equally as consistent with innocence as with guilt, that meaning must be ascribed to it which accords with innocence. "In order to prove a fact by circumstances there should be positive proof of the facts from which the inference or conclusion is to be drawn. The circumstances themselves must be shown and not left to rest in conjecture, and when shown it must appear that the inference sought is the only one which can fairly and reasonably be drawn from these facts." (Ruppert v. Brooklyn Heights R.R.Co., 154 N.Y. 90, 94; Shultz v. Hoagland, 85 N.Y. 464;Morris v. Talcott, 96 N.Y. 100; Baird v. Mayor, etc., ofN Y, 96 N.Y. 567; Constant v. University of Rochester,133 N.Y. 640; Shotwell v. Dixon, 163 N.Y. 43, 52; Lopez v.Campbell, 163 N.Y. 340, 348.)
When the proof in this action is tested by the principles established by the foregoing cases, it seems quite impossible to properly hold that the evidence was sufficient to justify a judgment against the defendant upon the ground that he directed, or actually participated in any direction, that the bank should receive the deposits, to recover which this action is brought. The proof is that he affirmatively stated that no deposits ought to be received, and that subsequently another director devised a plan to receive deposits in a manner which would protect the depositors until the condition of the bank could be more fully ascertained. The plan suggested by the defendant was not accepted. Another was devised in which he took no part, and there is no such proof of his having assented thereto or participated therein *Page 536 as would render him liable therefor. Moreover, as it is manifest that the plan thus proposed, and for a time adopted would, if carried out, have fully protected all subsequent depositors, it seems impossible, with any fairness or regard for law, to reach the conclusion that the defendant was guilty of fraud, even if he acquiesced in the plan suggested by McDonald. Here, for the first time, we find it seriously contended and held that where a party has obviously, in the utmost good faith and with an honest purpose, sought to protect the interests of others by the adoption of a line of conduct that would have completely accomplished that purpose, he may be adjudged guilty of fraud, because others, over whom he had no control, and for whose acts he was in no way responsible, may have thwarted his purpose and overruled his plans. It must be continually borne in mind that we are not dealing with any question of negligence or of contract, but only with the question of a fraud which the plaintiff contends rendered the defendant guilty of a crime. Hence, in determining the question of the defendant's liability, it must be considered, in view of the principles of law relating to fraud, and with principles relating to questions of negligence or contract we have nothing whatever to do. The learned Appellate Division upheld the action of the trial court by assuming the sufficiency of the evidence to sustain the finding that the defendant directed the receipt of the deposits in question knowing the bank to be insolvent, which, as we have seen, was entirely unjustified by the evidence. Upon a similar assumption the action of that court is now maintained by this. Since unproved assertions are not evidence, they ought not to be permitted to supply its place, however positively or unqualifiedly made. As FINCH, J., said: "Calling names does not alter facts." The assumption is based upon statements as to the evidence, which, with the utmost diligence, we have been unable to verify by the record. The Appellate Division then proceeded to enunciate the doctrine that the defendant was liable for negligence in not carrying out the plan devised for the protection of the plaintiff's *Page 537 assignors. In concluding that he was negligent, it in no way considered the defendant's lack of power or authority to carry it out, nor that there was no evidence that he had any information or knowledge that it was not being carried out in compliance with the suggestion of his co-director. The cause of action, having been based on fraud, involving false representations or fraudulent concealment, which can be established only by proving the absence of good faith or an honest purpose, and where an unlawful or fraudulent intent is shown, which is distinct and widely different from one founded upon negligence or upon contract, it was not competent, upon appeal, for the Appellate Division to make a substitution of either of the latter for the former. Nor can this court properly make any such substitution. Where a case is based on fraud, the fraud must be proved, and no relief can be given on any different ground. (Degraw v.Elmore, 50 N.Y. 1; Ross v. Mather, 51 N.Y. 108; Burnham v. Walkup, 54 N.Y. 656; Dudley v. Scranton, 57 N.Y. 424;Barnes v. Quigley, 59 N.Y. 265; McMichael v. Kilmer,76 N.Y. 36; Salisbury v. Howe, 87 N.Y. 128; Truesdell v.Bourke, 145 N.Y. 612.) In the Ross case it was held that in an action where fraud is the basis of the complaint, a recovery cannot be had for a breach of contract. The Burnham case was decided upon the authority of the Ross case, and involved the same question. The Dudley case holds that a cause of action based upon fraud, in the execution of a contract, is distinct from that founded on a mistake merely, and it is not competent upon the trial to make a substitution of one for the other. InBarnes v. Quigley it was decided that where the gravamen of an action is fraud, the court cannot change its form and allow a recovery as in contract, although facts may be stated in the complaint by way of inducement which might sustain such an action. In the McMichael case it was held that where a complaint is for fraud the action cannot be maintained on the ground of mutual mistake. Salisbury v. Howe was to the effect that when the gravamen of an action as set forth in *Page 538 the complaint is fraud, and the action is tried upon that theory without objection or exception, and the judgment is adverse to the plaintiff, the question whether the complaint stated facts sufficient to constitute a cause of action on contract, and whether there was evidence sufficient on the trial to sustain such cause of action, cannot be considered on appeal to this court. In the Truesdell case this court again asserted that where fraud is alleged as the basis of an action it must be proved, and that a recovery may not be had on proof of a right of action on contract or of some other character, although facts are proved which, in a proper form of action would justify a recovery.
As the proof discloses that the McDonald plan was abandoned, and fails to show that it was by the direction of the defendant, or that he was in any way connected therewith, the fact that it was not carried out tends to show, practically, that the defendant was unable to control the action of the officers of the bank as to the question whether such deposits should be received or not. As the plan suggested was ignored by the managing officers of the bank, it becomes quite evident not only that they did not, but that they would not have carried out the recommendations of the defendant if they had been in the form of a direction instead of a suggestion that the bank should be closed as to the receipt of deposits. Manifestly, the defendant as one of its eleven directors had no power to close the bank, as it was in charge of its executive officers of whom he was not one, and who were subject only to direction and dictation by the board. Powerless as such to close the bank, powerless to protect the depositors, powerless by his advice to secure their protection by others, and having done all in his power, he could do no more. What was he to do? Was he required to step outside of his duties as a director and advertise the bank's insolvency, to stand upon the street corner or in front of the bank and proclaim his opinion as to its actual condition, while evidently not possessed of sufficient information to judge correctly or definitely as to its solvency? We think not. If he had pursued the latter *Page 539 course and it had ultimately transpired that the bank was solvent, as to which he might well then have been in doubt, he would surely have been liable to the bank or its stockholders for any damages that might have been sustained by reason of his action in that respect. Were the circumstances such as required him at his peril to perform an impossibility, or can he be held liable for fraud in not performing an act which he had no legal authority to perform? In other words, was he bound to incur the jeopardy of a course which might make him liable for many thousands of dollars by proclaiming, as a fact, a condition which could not be ascertained with certainty at that time? We think he was not required to accept any such alternative. When he had advised that the bank should accept no more deposits, although he raised no actual opposition to the plan of a co-director which would assure to the depositors full protection, we think his course of action can in no manner be tortured into a fraud on his part as against the plaintiff's assignors. To uphold the judgment in this case required the reversal or disregard of nearly every existing and well-established principle of law relating to actions for fraud or deceit and the rules of evidence controlling that class of actions. That fraud is not to be presumed, but must be proved, is a rule which has been so long and is so firmly established that the citation of authorities to sustain it seems needless. Yet, the attempt is to entirely disregard that principle and cast upon the defendant the burden of establishing his innocence as to the fraud charged, when there is no proof whatever to sustain it. This is sought to be done, not by openly overruling that principle, but by ingenious assertion and unwarranted argument to establish unproved facts and thus to avoid its force.
It is said that the defendant should have notified the superintendent of the banking department of the situation of the bank; the answer is there is no proof that he did not. As the bank was placed in the hands of an examiner on the ninth, it is evident that some one must have called the attention of the superintendent to its condition; and as there is no *Page 540 proof who gave the information, it is quite as fair to presume that it was the defendant as to presume that it was some other person. Nor can it be fairly said that there was any such issue in this case. If the duty of notifying the superintendent rested upon the defendant, still, as this action was not based upon any neglect or omission of that duty, that question is not before us.
It is seriously argued that because the defendant, at the time of a severe panic, and when disaster seemed to be hovering over many of the great financial institutions of the city, sought to ascertain the situation of the bank of which he was a director and thus inform himself, so that he could act intelligently in the discharge of his duties as a member of the board as to any existing or prospective emergency, was evidence of an intended fraud upon his part. We think otherwise. It does not raise even a suspicion as to his good faith. When the fact that he was at the bank was followed by evidence which disclosed that, upon ascertaining as fully as possible the situation, he at once stated to the officer in charge that it would not be right to continue taking deposits, it becomes manifest that the fact of his examination and the course thereupon pursued by him not only failed to constitute fraud upon his part, but that it was no evidence even tending to show lack of good faith or intended fraud.
If there had been proof of the charges of the complaint that the defendant actually made any representations to the depositors as to the solvency of the bank that were untrue, quite a different question would be presented. Here the only pretended assertion of solvency was that implied from the fact that the bank was not closed. The bank was not kept open by the defendant, but by its officers alone. Every act performed by the defendant was in the direction of protecting the depositors, which he proposed to do by closing the bank. None of the cases cited by either counsel or court sustains a doctrine which justifies the judgment in this action. They all relate to conditions and situations radically unlike that developed by the evidence here. We are of the opinion that *Page 541 the proof was insufficient to sustain a recovery against the defendant upon the ground of fraud, and that that being the only issue in the case the judgment cannot be sustained upon the theory of negligence or any other theory except that upon which the action was based.
On the trial the court permitted the plaintiff to prove that after the bank was closed and not reopened, the state treasurer drew a check for $250,000, which was paid through the clearing house by the St. Nicholas Bank, which cleared for the Madison Square Bank, and that deposits by the East River Bridge Company and the Glen Ridge Mining and Quarry Company were also withdrawn. This evidence was objected to and admitted under the defendant's objection and exception. While to sustain those rulings we again find that imaginary facts are stated which find no basis in the proof, still, we think it impossible to justify those rulings when considered in the light of the evidence actually given and of the principles of law applicable to those questions. The admission of proof of these transactions with the defendant had nothing whatever to do, except that with the bridge company, and none of which had any connection with or relation to the action or omission of the defendant for which the plaintiff sought to recover, was clearly erroneous and obviously tended to prejudice the jury against the defendant. There were several other rulings which cannot be sustained, sufficient to justify a reversal, but we prefer to place our opinion upon the grounds first considered.
We think the judgment should be reversed, and a new trial ordered, with costs to abide the event.
BARTLETT, VANN and CULLEN, JJ., concur with WERNER, J.; PARKER, Ch. J., and HAIGHT, J., concur with MARTIN, J.
Judgment affirmed. *Page 542