showed allowances by way of interest plaintiff, upon which interest was alto plaintiff upon balances in defendants' lowed for the balances in the defendhands. ant's hands. This view is fortified by of plaintiff's attorney, with reference to the allowance of interest by defendants on balance due plaintiff. The facts seem to give the defendants the preponderance of proof. It was urged below by plaintiff's the acceptances taken by plaintiff at counsel that the action being to recover the time of defendant's embarrassment, money held by defendants in a fiduciary as well as the statement in the affidavit capacity, that an execution might be issued against the person of defendant if no order of arrest had been obtained, and urged also that the question as to whether the defendants actually received the money in a fiduciary capacity or not being the question which the jury was to determine, it could not be tried in advance upon affidavits. S. P. Nash, for applt. Benj. G. Hitchings and H. F. Pultz, for respt. Held, That even if the cause of action and of arrest were identical, which they were not, as the determination of the question as to whether or not the money was held or received in a fiduciary capacity, was not necessary to a recovery, still a motion to vacate the order of arrest was proper, and the Order appealed from reversed with $10 costs. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur in result. HIGHWAY. OBSTRUCTIONS. Baxter, respt. v. Warner, applt. The fact that a street is laid out with This action was brought, originally, in a justice's court, for damages to court will look at the facts before it and determine whether the order of arrest should be sustained or not alike in cases where the cause of action and of plaintiff's horse harness, &c. arrest are identical as well as in cases where they are not. In this case, however, although the facts alleged in the affidavit upon which the order of arrest was obtained, were sufficient, if uncontroverted, to sustain the order; two of the defendants positively deny the facts alleged concerning their obligation to pay over the identical money received by them. And their statements upon this subject were sustained by the form of the accounts shown to have been rendered to the plaintiff during the progress of the business, by which accounts it appears that the moneys received it appeared that it was guttered, curbed, were made a matter of credit to the] and had sidewalks. The defendant, having a ditch or sewer to dig, applied to one R. to do the work. R. hired a man to help him. They partly completed the work and passed into Lansing street, and at night left a part of the ditch open, but protected by a barricade of boards. They left no light at the barricade. Plaintiff, in passing along the street with his horse and buggy, got his horse into the ditch; the horse ran away, and the damage sued for was incurred. There was no direct evidence that Lansing street was a public street, but The defendant cannot escape liability for the doing of such acts by proving that he made a contract with another to do them, and that they were actually done by the latter and not by himself. (Ellis v. Sheffield Gas Cons. Co., 2 Ell. & Black, 767; Gray v. Pullen, 5 Best & S., 970-981; Pickard v. Smith, 106 B. (N. S.) 480; Mersey Docks v. Trustees, L. R. 1 H. of L., 114; Storrs v. City of Utica, 17 N. Y., 104; Congreve v. Smith, 18 id., 79.) The night of the accident was dark. There was a judgment for plaintiff. S. W. Lindsley, for applt. Wm. H. Davis, for respt. Ileld, We think the evidence was sufficient prima facie to show that the accident occurred upon a public highway. Lansing street evidently had been laid out as a public street, with a carriageway, sidewalks, gutters, &c., and it was in constant use as a street. These things would not ordinarily exist unless it was a street provided for pub lic use, by competent authority, and subject to public control and supervision. Indeed, the charter of the city, recognized the existence of the street. and the provision relieving the city of the control of a portion of it does not detract from the character of any part of it in actual public use as a high way. The defendant, therefore, had no right to do anything, himself, or to cause anything to be done by another, whether PARTNERSHIP. PROMISSORY servant or contractor, which rendered The question of the contributive negligence of the plaintiff was one of fact, and we think it was submitted to the jury in a manner quite as favorable to the defendant as the evidence warranted. The judgment and order denying a new trial should be affirmed. Opinion by Gilbert, J.; Mullin, P.J., and Smith, J., concurring. NOTE. the street less safe than formerly. It N. Y. SUPREME COURT-GEN'L TERM. is immaterial to inquire whether Reynolds was a contractor or a servant; he was employed by the defendant to dig the ditch in the street, and the injury is attributable to that act. The rule FOURTH DEPARTMENT. White's Bank of Buffalo v. Joseph Getz and another. Decided January, 1876. Where an agent acts in making or endorsing negotiable instruments within the scope of his general authority, the fact that he has abused or perverted it in the particular instance, constitutes no particular defense against a bona fide holder for value. This is an appeal from a judgment on a verdict of a jury for plaintiff. deduced from the maxim respondeat superior, which exempts an employee, does not apply to cases where the injurious act is the very act which the contractor was employed to do, or a necessary consequence of the work committed to him. Here the defendant shows no legal authority for making the opening in the street. It was an illegal act. The action was on a promissory note That act necessitated the obtruction of made by J. Getz & Co., of which dethe street by barriers, to prevent trav- fendant, Jewett, was one of the part elers from falling into the ditch, and ners. Getz & Co. were extensive manthese barriors being left in the night- ufacturers in Buffalo, and Jacob Getz, time without lights, were the immedi- one of the firm had oversight of the ate cause of the accident to the plaintiff. business, and borrowed money and On the trial evidence was given that this note in suit was endorsed outside of the firm business, and that S., to whom the note was delivered, knew of this want of authority. signed the firm name to notes, &c., and holder of the note, according to the setHe retled rule of law of this state. endorsed the firm name. ceived the note in suit from Shutterworth in payment of a draft for a large amount on which Shutterworth was liable as drawee, and actually gave up the draft to Shutterworth. This constituted a parting with value, and nothing appears in the case, which, in other respects, impeaches the plaintiff's right to (Pratt v. Coman, 37 N. Y. recover. 440, and cases cited.) The measure of recovery in such a case is the amount of the bill or note surrendered, and not its supposed value as affected by the solvency or insolvency of the parties liable Before the note was due S. delivered same to plaintiff, in part payment of a protested draft for $800, drawn by him, S., and held by plaintiff, and which plaintiff delivered up to S. There was no evidence tending to show that plaintiff, in any way, knew of this want of authority in the person who endorsed the firm name. The court directed a verdict for the on it. (Young v. Lee, 2 Ker. 551; S. C., plaintiff. Sherman S. Rogers, for respt. Thayer and Benedict, for applt. Held, Mr. Jewett being a partner in the firm of Getz, Jewett & Co., is liable on the endorsement of the note 18 Barb., 187.) Such value is fixed by The judgment must be affirmed. in suit by his co-partner, Mr. Getz, in J., and Smith, J., concurring. the partnership name, notwithstanding Sloman, respt., v. Great Western Decided January, 1876. the loss of merchandize delivered to such indorsement was made without any COMMON CARRIER. BAGGAGE. actual authority to make it; for the rea- N. Y. SUPREME COURT, GENERAL TERM, that the plaintiff is a bona fide holder FOURTH DEPT. of the note for value, and without notice of such lack of authority. Each party has a general authority, by virtue of the partnership relation, to endorse notes in the partnership name. They of each other. Where are mutual agents an agent acts in making or endorsing negotiable instruments within the scope of his general authority, the fact that that he has abused or perverted it in the particular instance, constitutes no defence as against a bona fide holder for value. In such a case the apparent au thority is the real authority. (Weeks v. Fox, 3 N. Y. Sup., Thomp. & Cook, 356-7, and cases cited.) The evidence leaves no room for doubt that the plaintiff is a bona fide To make the company liable the pas senger must in some way bring to the knowledge of the company the fact that the property checked is merchandize, not baggage. The plaintiff was a wholesale clothing merchant in the city of Rochester, his son was traveling for him and selling his goods. On August 8, 1873, the son was at Flint, Michigan, had with him, containing his samples, two large trunks weighing about 300 pounds baggage-master knew, or was informed, apiece. On the afternoon of that day that the trunks contained merchandize. he left Flint to go to Rochester. He The receipt given for extra baggage went to the baggage master of de- did not show it in any way. fendant's road and had his trunks checkJudgment reversed. ed, paid extra baggage rates thereon, Opinion by Gilbert, J.; Mullin, P. and took a receipt therefor. When the J., and Smith, J., concurring. trunks were checked the son was asked The goods were damaged on the trip. INJUNCTION. CONTRACT. CONSTRUCTION. N. Y. COURT OF APPEALS. Decided January 25, 1876. An injunction will not be granted unless a reasonably clear case is made out. A construction given to a contract claimed to restrict the right to build to the street line. This was an action to restrain the Sprague, Gorham & Bacon for applt. erection of a building upon a strip of Held That railroad companies are land 7 feet wide, on 22d street, in the not liable for the loss of merchandize City of New York, and extending cast delivered to them under the description from Broadway 122 feet. It appeared of baggage, for transportation along that on May 12, 1849, an agreement with a passenger. If a railroad com- was entered into between one K. & M. pany knowingly undertakes to trans- and wife, for the purpose of reserving port merchandize in trunks or boxes, 7 feet in front of the houses on each which have been received by them for side of 22d street, from being built transportation in passenger trains, they upon. The agreement recited that the are liable unless the agent, who received parties were respectively the owners of the package for that purpose, violates a divers lots on either side of 22d street regulation of the company by so doing, between Fourth Avenue and Broadand the passenger or owner of the goods way, that divers dwelling houses had has notice of such regulation. been erected on each side of said street leaving a court yard 74 feet in front of them, "and the parties hereto deeming That to render a company liable for the loss of merchandize transported as baggage, the company or its agents it to be for their natural advantage that must know, or must have been informed in some way by the passenger when the baggage was received, that it was not ordinary baggage but was merchandize. That there was no evidence in this case warranting the inference that the placed back seven feet and a half from the lots fronting said street when built up between Fourth Avenue and Broadway, should be occupied exclusively for dwelling houses, and that the fronts of all such dwelling houses should be * * * Judgment of General Term reversing that part of judgment of Special Term, which denied the relief demanded as to the lots on Broadway, reversed. the line of the street, do the right of property in the lots on for themselves and their respective heirs Broadway, and something more than a and assigns, grant and agree to, and doubtful right is required to justify with each other, that so much of their an interference. A reasonably clear respective lots belonging to them res- case should be made before the rights pectively, as is contained between the of an owner of property should be imline of the street and a line seven and paired to the extent claimed. a half feet therefrom shall forever hereafter remain and be enjoyed as a court yard in front of any houses to be erected on said lots, &c.." It was proved that when the agreement was made, the land had been divided into lots, and that the parties had before them a map which had been filed seven years in the Register's office, and according to which, lots on Broadway and Fourth Avenue, were laid out twenty-five feet wide and running back about ninety six feet; between these, the lots were laid out twenty-five feet on Twenty-second street, and running back half the width W. A. Beach, for respt. Opinion by Church, Ch. J. GOOD WILL. SALE OF. N. Y. COURT OF APPEALS. Sander, et al., applts., v. Homan, et al., respts. Decided February 22, 1876. Upon the sale of a business and its good will, accompanied by an agreement not to carry on a similar business within certain limits, the vendor is bound not only not to solicit but to decline all business from customers within the prescribed limits. This action was brought to recover Held, That the lots laid out twentyfive feet on Broadway and Fourth Avenue, must be regarded as fronting a sum specified as liquidated damages on those streets, and the lots between for the breach of a contract, under must be deemed to front on Twenty- which defendants sold the good-will of second street; and it must be presumed their business as retail dealers in meat that the parties to the agreement so re- and vegetables in New York city to garded them, and that, when they specifi- plaintiffs, and covenanted with them ed lots fronting on Twenty-second street not to engage in a similar business for they intended to distinguish between five years within certain limits. A year those and other lots fronting on other after, defendants engaged in a similar streets. It must be assumed that the business a short distance outside of the parties in making the agreement, had prescribed limits, and supplied some in contemplation the lots as laid out of their old customers within said and designated on the map, and it limits by sending daily to their resimight be inferred that they assumed dences a wagon with the provisions they that the lots on Broadway and Fourth needed and receiving orders, through Avenue, would or might be occupied their messenger who carried them, for the day following. Only four such inAlso held, That the injunction stances were shown upon the trial. sought woul seriously interfere with There was evidence on the part of for business purposes. |