THIRD DEPARTMENT, SEPTEMBER TERM, 1880. MARTIN LACKIN, RESPONDENT, v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL COMPANY, APPELLANT. Liability of a railroad company for an animal killed on its track, through its neglect to maintain cattle-guards and fences-interest on the value of the animal killed, when allowed. APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover damages for the loss of the plaintiff's mare, killed while straying on the defendant's track. The court, at General Term, said: "The referee has found, and, as we think, on sufficient evidence to sustain the finding, that the mare got upon the defendant's road without the fault of the plaintiff, and was there struck and killed by the defendant's train, and that the injury was occasioned through the defendant's omission to construct and maintain cattle-guards at road-crossings, or to maintain a fence along the line of the road, as by law required. The evidence sustains these findings in all reasonable probability. A different finding would be unreasonable, and, as we think, would be clearly against the preponderance of proof. "Accepting these facts as well found, with those entirely uncontroverted, and the defendant's liability is beyond peradventure. (Crawford v. New York Central & Hudson River R. R. Co., 18 Hun, 108.) The case cited, with those there referred to, covers every point that can be raised in this, excepting, perhaps, the objection that the referee allowed interest upon the value of the property destroyed in the estimate of damages. In this he is sustained by the decision in Parrott v. Knickerbocker & N. Y. Ice Co. (46 N. Y., 361), and in Whitehall Transportation Co. v. New York Steamboat Co. (51 N. Y., 369). These cases have never been questioned as we can learn. They are not referred to in White v. Miller (9 Week. Dig., 153), and cannot therefore be declared to be overruled by that case." J. G. Runkle, for the appellant. THIRD DEPARTMENT, SEPTEMBER TERM, 1880. J. F. Crawford, for the respondent. Opinion by BOCKES, J.; FOLLETT, J., concurred; LEARNED, P. J., taking no part. Judgment affirmed, with costs. THE FIRST NATIONAL BANK OF SAUGERTIES, RESPONDENT, V. AUGUSTA A. HURLBUT, APPELLANT. Married woman --note given by--when her separate estate is charged by it-when words “personal estate” construed to mean separate estate." 66 APPEAL from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought upon a promissory note made by the defendant. The referee found that on or about December 15, 1876, the defendant, Augusta A. Hurlbut, applied to the plaintiff, the First National Bank of Saugerties, for a loan of $500; that the defendant requested the plaintiff to discount the note for that amount, and stated that she had some taxes to pay in Brooklyn, and wanted the money for the purpose of paying taxes on her property there; that the plaintiff discounted her note for $500, and thereupon the defendant's husband, J. M. Hurlbut, at the defendant's request, drew his check against the moneys realized for the sum of $450, which check was certified by the plaintiff, and which the defendant stated was for the purpose of paying the taxes on her property; that on December 20, 1876, defendant requested the plaintiff to discount her note for $700, which was done, and out of the proceeds of such discount the note of December 15, 1876, for $500 was paid, that having been the agreement under which the said discount was given, and the balance remaining was passed to the credit of the defendant; that on March 20, 1877, the defendant made the following promissory note in form as follows: 86 $700. BROOKLYN, March 20, 1877. "On demand, I promise to pay to order of the First National THIRD DEPARTMENT, SEPTEMBER TERM, 1880. Bank of Saugerties seven hundred dollars at First National Bank of Saugerties, value received, to be paid from my personal estate. "A. A. HURLBUT." (Signed) That such note was received by plaintiff in renewal of the note of December 20, 1876. The referee found, as conclusions of law, that defendant was liable on her note so made March 20, 1877, for the payment of the sum therein mentioned, with interest, and that plaintiff was entitled to recover from defendant the sum of $824.65. The court, at General Term, said: "The referee properly held that by the note the defendant charged her separate estate. The word 'personal' was evidently used, not in distinction from 'real,' but in the meaning of 'private,' individual,' or 'separate.' The note was to be paid out of the estate which belonged to her personally. All the circumstances show that was the meaning of the words. The previous notes had, in more formal words, charged her separate estate. The money, or at least most of it, had gone to the benefit of her property. The defendant herself wrote the clause in question; and to suppose that she used the word 'personal' in its peculiar legal meaning is out of the question. She plainly used it with the meaning above indicated of 'separate,' intending to charge the estate which belonged to her, and her intention should not be thwarted." Theodore B. Gates, for the appellant. P. Cantine, for the respondent. Opinion PER CURIAM. Present-LEARNED, P. J., BOCKES and LANDON, JJ. Judgment affirmed, with costs. IN THE MATTER OF THE ASSIGNMENT OF REYNOLDS CAR PENTER. Order reversed, and to be settled before BOOKES, J., in accordanee with opinion. Opinion by BоCKES, J. THIRD DEPARTMENT, SEPTEMBER TERM, 1880. THE ST. VINCENT'S FEMALE ORPHAN ASYLUM OF THE CITY OF TROY, APPELLANT, v. THE CITY OF TROY. RESPONDENT. Judgment affirmed, with costs. Opinion by BoсKES, J. Memorandum by LEARNED, P. J. WILLIAM C. RANDALL, LATE SHERIFF OF THE COUNTY OF ROBERT NELSON AND JOHN NELSON, RESPONDENTS, v. JOHN HEERMANS, APPELLANT, IMPLEADED, &c. Judgment reversed, new trial granted, costs to abide the event, and reference discharged. Opinion by MARTIN, J. MARY A. BURNHAM, RESPONDENT, V WILLIAM S. Judgment reversed, new trial granted, costs to abide event. THE PEOPLE OF THE STATE OF NEW YORK ex rel. SILAS H. WITHERBEE, SURVIVOR, &c., RESPONDENT, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ESSEX, APPELLANT. Judgment modified, and as modified affirmed, without costs of appeal to either party. Opinion by LEARNED, P. J. CHARLOTTE TABOR AND WILLIAM BRADLEY, APPELLANTS, v. K. EUGENE BUNNELL AND OTHERS, RESPOND ENTS. Judgment affirmed, with costs. THIRD DEPARTMENT, SEPTEMBER TERM, 1880. CHARLES F. RIKER, RESPONDENT, v. THE VILLAGE OF ITHACA, APPELLANT. Judgment reversed, new trial granted, costs to abide event; reference discharged. Opinion by FOLLETT, J. WARREN BEARDSLEY, APPELLANT, v. JAMES M. Judgment reversed, new trial granted, costs to abide event. EDWARD L. BENNETT, RESPONDENT, v. WILLIAM WHIT- Judgment and order affirmed, with costs. HARRIET A. DEWAREE, RESPONDENT, V. GEORGE E. HATHAWAY AND WARREN G. WILLIS, APPELLANTS. Judgment affirmed, with costs. Opinion by BOCKES, J. THOMAS DORAN, RESPONDENT, v. THE FRANKLIN FIRE INSURANCE COMPANY, APPELLANT. Judgment and order affirmed, with costs. Opinion by BOCKES, J., and dissenting one by LEARNED, P. J. JOHN G. FARNSWORTH, AS RECEIVER, &c., RESPONDENT, v. DARIUS S. WOOD AND OTHERS, APPELLANTS. Judgment affirmed, with costs. Opinion by BOCKES, J. JOHN P. WEBBER, RESPONDENT, v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL COMPANY, APPELLANTS. Judgment affirmed, with costs. Opinion by BOCKES, J.; LEARNED, P. J., taking no part. |