Midgeley agt. Slocomb.

lized from the collaterals. They are not held by them in law; they are only physically in possession of the bank.

Hence they can only receive a dividend upon the amount now due, after deducting payments received through collaterals.

As to who is deemed a lawful holder of notes: (See Story on Promissory Notes, § 115, p. 122.)

When a note is received as collateral security for a preexisting debt, and subsequently paid, the person receiving payment ceases to be a bona fide holder of the note. (See Story on Promissory Notes, aud cases cited, § 195, p. 222.)

VI. If the court can by the application of reasonable and fair rules of construction to the terms of the trust in the assignment, prevent the Park Bank from receiving an unequal share of the funds in the hands of the assignees, they will be bound to do so, and require them to abide by the directions of the assignors to pay pro rata, and declare the payments from collaterals to be pro tanto a reduction of their debt. (Story on Promissory Notes, § 411, and cases cited.)

GILBERT, J. I take it to be clear law as well as equity, that when a debtor makes a general assignment of his property, upon trust, to pay his debts, and therein prefers a creditor to whom he had before the assignment given security for the payment of the debt due him, such creditor is entitled to the benefit of the collateral security, as well as his interest as a cestui que trust, until such debt shall have been fully paid. If the collateral security be sufficient to pay the debt, equity, in order to protect creditors who have no lien on it, will compel the creditor holding the collateral security to resort to that in the first instance, and even if it be insufficient. The same proceeding may be decreed when it will not trench upon the rights, or operate to the prejudice of the creditor entitled to the double fund. (Story's Eq. Jur. § 633; Adams' Eq. 272; Strong agt. Skinner, 4 Barb. 559; Besley agt. Lawrence, 11 Paige, 581.)

But as was said by Lord COTTENHAM, in Mason agt. Bogg (2 My. & Cr. 443), a creditor who thus has a double secu

Midgeley agt. Slocomb.

rity, has a right to proceed against both, and to make the most he can of both. If a dividend under the assignment so reduces the debt that the collateral security will more than pay it, the only remedy of the assignors, or of the other beneficiaries, is to redeem. (Story's Eq. Jur. § 564-6; Lewin on Trust, 485; Brinkerhoff agt. Marvin, 5 J. Ch. R. 320; Hays agt. Ward, 4 Id. 132; Woolcock agt. Hart, 1 Paige, 185; Aldrich agt. Cooper, 8 Ves. 382, and notes in Lea. Ca. in Eq. 3 Am. ed. 276, et seq.). The Park Bank, therefore, has a right to receive its share of the proceeds of the assigned property, and to retain and enforce the collateral securities which it holds until the debt due it shall have been paid. The question is, what is its share of the fund now in the hands of the assignees? This depends on the interpretation of the instrument itself, and cannot be determined upon any notion of equity or equality, for the court has no power to create or order a new trust.

The trust is "to apply the proceeds towards the payment of the persons or corporations, holders now or at any future time, for the time being," of a specified class of notes of the assignors. At the date of the assignment the bank held notes belonging to this class, amounting to $23,500, which were secured by a pledge of notes of other parties. The bank has since collected $16,330.98, on account of these collaterals, leaving due $9,573,25. The law applied these collections to the payment of the principal debt, so that the bank has ceased to be the holder of the notes thus paid. I think the meaning of the assignment is, that the assignees shall pay debts outstanding at the time of the execution of the trust, and not, as was contended by the counsel for the bank, that they shall make a distribution on the basis of the original indebtedness.

The referee's report on this point is confirmed. But the referee erred in relation to the proposed sale of the collaterals still held by the bank. There may be a decree for the sale of the interest of the assignors in them. But the court cannot interfere with the right of the bank to collect them. A decree will be prepared and settled.

Mettlestadt agt. The Ninth Avenue Railroad Co.

NEW YORK SUPERIOR COURT.

ERNST METTLESTADT, by his guardian LEOPOLD METTLESTADT, appellant agt. THE NINTH AVENUE RAILOAD COMPANY, respondents.

It cannot be stated as a general rule, that a passenger who leaves a railroad car while in motion, and is thereby injured, is guilty of negligence as a matter of lara Where a boy about fourteen years of age, was riding upon the top of a city railroad car, as a passenger-the car being full inside-having paid his fare, and on arriving at the corner of a certain street, requested the driver to stop as he wished to get off, but the driver did not stop, and on going about half the block at a moderate speed, the boy undertook to get off the car, and in doing so the driver caught him by his head-pulled off his cap and struck at him with his whip, and in attempting to avoid the blow from the whip the boy fell under the car and had one foot run over and severely injured : Held, that these facts appearing in evidence on the trial, the case should have been submitted to the jury. A judgment of dismissal of the complaint, on the ground that the getting off the car while in motion, was negligence on the part of the plaintiff, reversed, and a new trial ordered, with costs to abide the event.

Heard at General Term in May, 1866. Decided in February, 1867.

Before ROBERTSON, C. J., MONELL and GARVIN, Justices. THE plaintiff and his companion, a boy about the same age, on the 7th day of September, 1865, got on to one of the defendants one-horse cars at Lispenard street, for the purpose of being taken to Forty-third street, and paid their fare.

Just before they arrived at Forty-third street the plaintiff requested the conductor and driver to stop the car, and let him off at Forty-third street. The conductor did not stop the car at Forty-third street, as requested. The plaintiff's companion got off at Forty-third street safely, while the car was in motion.

The plaintiff having been carried beyond Forty-third street, attempted, when about the middle of the block between Forty-third and Forty-fourth streets, to get off the car, the driver still persisting in his refusal to stop and let him off. As the plaintiff started to get off, the conductor took off the plaintiff's cap; and as he reached up one hand to get

Mettlestadt agt. The Ninth Avenue Railroad Co.

his cap, the driver struck him with his whip. The plaintiff in attempting to avoid the blow fell, and the wheel of the car passed over his foot, and injured it severely.

On the trial, before Mr. Justice JONES and a jury, after these facts were proved, the court on defendants' motion dismissed the complaint, giving the following opinion:

JONES, J. I think the plaintiff must be non-suited. The facts are all conceded, and the question is a question of law. I think the getting off the car while in motion, was negligence on the part of the plaintiff. It is true, it is difficult to get these cars to stop either to get off or on, and perhaps it would be well to sustain actions of this sort, for the purpose of preventing the employment of drivers and conductors by railroad companies, that will not accommodate the public by stopping. I do not feel inclined to go against what I have understood always to be the law in cases of this kind, for the purpose of establishing a doctrine with a view of compelling stoppages. If that is to be accomplished in any way, it must be accomplished in some other way, either by application to the legislature or to the common council, or by some other means that may be devised. The legislature may have power to pass an act that in case the drivers do not stop, the corporations shall be liable for all damages resulting from it. I do not see why, upon principle, the defendant should not be equally as liable for damage incurred by attempting to get on a car in motion, when the driver rsfuses to stop, as by getting off a car in motion, when the driver refuses to stop. In either case, it may be equally as important for him to get on the car as to get off the car. I therefore think this motion must be granted, and I will direct the exceptions to be heard in the first instance at the general term.

IRA D. WARREN, for appellant.

I. The court erred in dismissing the complaint. The question whether or not the plaintiff was negligent, from all the

Mettlestadt agt. The Ninth Avenue Railroad Co.

facts proved, was one peculiarly for the jury, and should have been submitted to them under proper instructions.

Negligence is "the omission of that degree of care which a man of common prudence takes of his own concerns." (Keller agt. The N. Y. C. R. R. Co. Court of Appeals, 24 How. 173; Burrill's Law Dictionary, 741.)

Whether, under the circumstances of this case, the plaintiff omitted to act with common prudence, was a fact which should have been left to the jury.

The plaintiff had a right to get out of the car at Fortythird street, and the company were guilty of a gross violation of their duty towards him in keeping their car in motion when he requested them to stop.

Whether it was an omission of common prudence to get off the car under such circumstances, is just such a question as should have been left to the jury. (Bernhardt agt. R. and S. R. R. Co. 32 Barb. 169; see opinion of Justice JOHNSON; Ireland agt. O. and H. P. R. R. Co. 3 Kern. 533; Mayor agt. Brooklyn City R. R. Co. 36 Barb. 241; Clark agt. Eighth Av. R. R. Co. 32 Barb. 657; Fero agt. B. and S. L. R. R. Co. 22 N. Y. 209; Buel agt. N. Y. C. R. R. Co. 31 N. Y. 319; Been agt. Housatonic R. R. Co. 19 Conn. 566; 2 Smith & Bates' Am. R. R. Cases, 114.)

II. It is not such concurring negligence for a passenger to get off a street car while in motion, when he has previously requested the conductor to stop, and he refuses to do so at the proper time and place, as to deprive him of his action for damages, in case the damages were the result of their refusal to stop the car.

The fault is all with the company. Had they stopped the car, as they were bound to do, no accident could have occurred. This case differs from any reported case, as in this case the defendants had control of the plaintiff's person, and his action was brought about by conduct of the company while grossly violating their duty towards him. Having by their own conduct induced his action, they cannot now attribute that action to him as negligence. In other words, the author of a wrong, who has put a person in a