Negligence of Employer. C., 6 Barb., 231; 1853, Keegan v. Western R. R. Co., 8 N. Y. (4 Seld.), 175; 1858 [citing, also, 6 Cush., 75; 9 Id., 113; 10 Id., 228; 5 Exch., 354; 9 Id., 223; 11 Id., 832; 37 Eng. L. & Eq., 281; 16 Adolph. & E., N. S., 326; 1 Hurl. & Norm. Exch., 773], Sherman v. Rochester & Syracuse R. R. Co., 17 N. Y. (3 Smith), 153. 19. Hence, a laborer employed by a railroad company to work in connection with a train of cars, under an arrangement by which he is to be conveyed to his home every night in such, free of charge, cannot maintain an action against the company for an injury sustained while thus riding home, in consequence of the negligence of the engineer. Ct. of Appeals, 1858, Russell v. Hudson River R. R. Co., 17 N. Y. (3 Smith), 134. 20. Negligence of employer. It is the duty of the master, to all his servants, to use reasonable care in providing them with careful and competent fellow-servants; and he is liable for injuries to any servant arising from his neglect to use such care, in the absence of proof that the injured servant was aware of the incompetency of his fellow-servant. Where the master is a corporation, the liability is not affected by the fact that it acted by an agent in the selection of servants, and such agent was negligent in the selection. Supreme Ct., 1858, Wright . N. Y. Central R. R. Co., 28 Barb., 80. Injury to Servant. servant who sustains an injury from the negligence of a superior agent engaged in the same general business, can maintain no action against their common employer, although he was subject to the control of such superior agent, and could not guard against his negligence or its consequences. The same rule of liability must necessarily apply as well where the employments of the servants are distinct, as to cases where they are one; and to the several grades of employments, where those in the inferior are subject to the direction and control of those in the higher grades, as to cases where all occupy a common footing and possess equal authority. Ct. of Appeals, 1858, Sherman v. Rochester & Syracuse R. R. Co., 17 N. Y. (3 Smith), 153. 23. Separate employers. The rule applies only where the action is brought for an injury to a servant or agent against the principal by whom such servant was himself employed. A servant employed by a railroad company on a portion of its track upon which it permits another company to run trains, is not a servant of the latter company; and a servant of the latter, injured by the negligence of such servant of the former, may maintain an action against the former company. Ct. of Appeals, 1859, Smith v. N. Y. & Harlem R. R. Co., 19 N. Y. (5 Smith), 127. 24. Lessee of ferry. Defendant had an exclusive right to run a ferry, and permitted another person to exercise the right, not as the defendant's agent or servant, or for his benefit, but on his own account. Held, that defendant was not liable for injuries owing to the negligence and want of skill of the latter or his servants. Supreme Ct., Sp. T., 1855, Blackwell v. Wiswall, 24 Barb., 355; affirmed, Gen. T., 1857. 21. The rule that the principal or master is not liable to his agent or servant for an injury inflicted through the negligence of another servant employed in the same general business, applies only where the injury happened without any actual fault of the principal or master, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it happens. Where the fire- 25. Liability of servant. One hired to man on a locomotive was injured by the ex-drive horses is not liable for an injury to them, plosion of the boiler, which was defective and unless it be shown that the injury was prodangerous,—Held, that the railroad corpora- duced by his unskilfulness, negligence, or wiltion was liable for the injury, if it knew the ful misconduct. He is in as favorable position condition of the boiler, it not being shown as a bailee for hire. Supreme Ct., 1823, New ton v. Pope, 1 Cow., 109. that its condition was known to the plaintiff also. Ct. of Appeals, 1853, Keegan v. Western 26. Master's action for injury to servant. R. R. Co., 8 N. Y. (4 Seld.), 175. Supreme The rule that for a wrongful injury to the serCt., 1855, McMillan v. Saratoga & Washington vant whereby he is disabled from continuing R. R. Co., 20 Barb., 449. To the contrary his service the master may recover from the effect, 1857, Byron v. N. Y. State Printing wrongdoer [following 3 Blackst. Com., 142, Telegraph Co., 26 Barb., 39. and disapproving Reeve, 376], applies to the 22. Several grades of employment. A case of a hired servant or clerk. It is not Masters in Chancery. confined to the case of apprentices and children, and cases where the master stands in loco parentis. Supreme Ct., 1846, Woodward v. Washburn, 3 Den., 369. 27. Recovery by a merchant for the confinement of his hired clerk for a short time, in a a bank, sustained. Ib. Maxims. an affidavit. Chancery, 1831, People v. Spalding, 2 Paige, 326. 4. The approval of an appeal-bond calls for the exercise of both judgment and discretion; and a master cannot, as such, approve such a bond in a cause where he, or his law partner, though not employed as solicitor or counsel on 28. Enticing servant. A master can main-record, has been called on for advice, or drawn tain an action of trespass against another for papers. Chancery, 1836, McLaren v. Charrier, entering his house, and there enticing away 5 Paige, 530. his servant. The gravamen of the action is the trespass, and the enticement is matter of aggravation. Supreme Ct., 1853, Haight v. Badgeley, 15 Barb., 499. 29. Abandoning service. A servant who was hired for a half month, left at the end of ten days, on account of improper language used to him by the master, on his refusal to work on Sunday. Held, that he could recover nothing. Supreme Ct., 1828, Marsh o. Rulesson, 1 Wend., 514. 30. Settlement. Though on an entire contract for services for one year, settlements to be made every three or four months, there could be no recovery till the end of the year;* yet where, on a settlement during the year, the employer gives the servant a note for the wages so far earned, the note is a modification of the contract, and is binding, though the servant leaves him before the time expires, and without cause. Supreme Ct., 1816, Thorpe v. White, 13 Johns., 53. 31. Newspaper carrier. That the relation of master and servant does not exist between the proprietor of a newspaper and the carriers, such as to require a month's notice to terminate it. Ct. of Appeals, 1854, Hathaway v. Bennett, 10 N. Y. (6 Seld.), 108. MASTERS IN CHANCERY. 1. Office of, and provisions of law relating to. 1 Rev. Stat., 3 ed., 97, 109; 2 Id., 381, 382. 2. Office abolished with Court of Chancery. Const. of 1846, art xiv., § 6. 3. Powers. The provisions of the statute prohibiting masters from acting as such, in causes in which they are concerned as solicitor or counsel, do not apply to the mere taking of 5. Judicial sale. Where no sufficient reason appears for employing, to make a judicial sale, a master at a distance from the place, he should not have an extra allowance. Chancery, 1824, Roseboom v. Vedder, Hopk., 228. 6. Where a decretal order furnishes data for a computation, the master ought to follow it; but the defendant cannot object to a departure from it beneficial to himself. V. Chan. Ct., 1843, Townsend v. Low, 4 Edw., 249. 7. Costs. A master is not to be charged with costs of setting aside his acts, on the ground that they were improper or oppressive, without opportunity to be heard. Chancery, 1835, Baring v. Moore, 5 Paige, 48. MAXIMS. [The authorities referred to under each maxim given in this table, include both those in which the maxim has been applied, and those in which it has been qualified, or its application limited.] 1. Accessorium non ducit, sed sequitur suum principale. Jackson v. Willard, 4 Johns., 41, 43; Van Wicklain v. Paulson, 14 Barb., 654, 656. Compare infra, 182. 2. Acta exteriora indicant interiora secreta. Van Brunt v. Schenck, 11 Johns., 377, 387. 3. Actio personalis moritur cum persona. Franklin v. Low, 1 Johns., 396, 404; People v. Gibbs, 9 Wend., 29, 30; Webber v. Underhill, 19 Id., 447, 449; Osborn v. Bell, 5 Den., 370, 872; Zabriskie v. Smith, 13 N. Y. (3 Kern.), 322, 333; Green v. Hudson River R. R. Co., 28 Barb., 9, 17; Smith . N. Y. & New Haven R. R. Co., Id.. 605, 608; Hopkins v. Adams, 5 Abbotts' Pr., 351, 352; Norton v. Wiswall, 14 How. Pr., 42, 44; and see Whitford v. Panama R. R. Co., 3 Bosw., 67, 76.. 4. Actus non facit reum, nisi mens sit rea. * This rule questioned in Heim v. Wolfe, 1 E. D. People v. Crosswell, 3 Johns. Cas., 337, 364; Smith, 70. Compare CONTRACTS, 832. Genet v. Mitchell, 7 Johns., 120, 131. Ad Proximum —. 5. Ad proximum antecedens fiat relatio. Causa proxima —. tional Protection Ins. Co., 25 Barb., 189, 191. 18. Any one may, at his pleasure, re- 7. Adulterium non probatur contra alium, 8. Equitas sequitur legem. Buchan v. 19. A penal law is not to be construed 20. Apices juris non sunt jura. Holmes 21. Aqua currit et debet currere. Robin- 9. Alienatio licet prohibeatur, consensu 10. Aliud est celare, aliud tacere, &c. 11. Allegans suam turpitudinem non est 12. All the powers, being derived from 13. A man cannot grant or convey what 14. Ambiguitas verborum latens, latens 15. An agreement under seal can only be 16. An alienation pending a suit is void. 17. A party may waive the benefit of ut currere solebat. Carhart v. Auburn 22. Arbor dum crescit; lignum dum cres- 23. A trustee can never be a purchaser. 24. Ausis talibus istis non jura subser- 25. Authority to execute a deed must 26. A verbis legis non est recedendum. 27. Benigne faciendæ sunt interpreta- 28. Bona fides non patitur, ut bis idem 29. Bonitatis æstimationem faciendam 30. By a grant of the reversion the rent 31. Causa proxima, non remota specta- Caveat emptor. De minimis-. 39. Conventio vincit legem. Allen o, Ja- 40. Copulatio verborum indicat accep- 41. Courts of equity delight to do jus- 32. Caveat emptor. Murray v. Trustees 461, 466; Farrington v. Hamblin, 12 Wend., 33. Caveat venditor. Wright v. Hart, 18 42. Crimen omnia ex se nata vitiat. Hen- 44. Cuilibet in sua arte perito est cre- 45. Cujus est solum, ejus est usque ad 46. Cum duo interse pugnantia reperi- 35. Cessante ratione legis, cessat ipse lex. 36. Common opinion is good authority in 577. 48. Debet sua cuique domus esse perfu. 49. Debitum et contractus sunt nullius 50. Debitum in presenti, solvendum in 37. Communis error facit jus. Yates v. 38. Consensus tollit errorem. Rogers v. 52. Delegatus non potest delegare. New- 53. De minimis non curat lex. Bergen v. De non apparentibus—. Hill, 613, 615; Conger v. Tradesman's Bank, 54. De non apparentibus et de non exis- 55. Discretio est scire per legem quid sit 56. Distinguenda sunt tempora. Owens Expressio unius -. clean hands. Tripp v. Cook, 26 Wend., 143, 67. Equitas sequitur legem. Tallman v. 68. Equity regards whatever is ordered 69. Est boni judicis ampliari justiciam, 70. Every man presumed innocent until 71. Every man's assent is to be presumed 72. Every one is bound so to use his 57. Donatio perficitur possessione ao-ga & Susquehanna R. R. Co., 12 N. Y. (2 58. Dormit aliquando jus, moritur nun- Kern.), 486, 494. Compare infra, 246, 253. luisse. Dewitt v. Yates, 10 Johns., 156, 159. 74. Evidentissimis probationibus osten- 60. Ei incumbit probatio qui dicit, non 61. Emptor emit quam minimo potest; 62. Enumeratio unius est exclusio alte- 63. Eodem modo quo oritur, eodem modo 65. Equality is justice. 75. Ex antecedentibus et consequentibus 76. Ex dolo malo non oritur actio. Graves 77. Ex nihil nil fit. Jackson v. Waldron, 78. Ex nudo pacto non oritur actio. 79. Expedit reipublicæ ut sit finis litium. 80. Expressio eorum quæ tacite insunt 66. Equitable relief will not be granted 81. Expressio unius est exclusio alterius. |