Defendant, in July, 1867, being about to retire from the company's service, rendered an account and credited himself with the balance of the note. In August, 1867, he took a new note in the company's name and sent it to the company. The latter immediately returned it, and notified defendant to pay the loss. Defendant claimed that the clerk was plaintiff's servant, and that the July account was an account stated. Held, that the clerk was servant of defendant, who was responsible for the sum embezzled; that even if the July account was an account stated, it simply imposed upon the plaintiff the onus of proving the charge erroneous, and, this having been done, the right of recovery was established. Amos G. Hull for the appellant. John L. Cadwalader for the respondent. GROVER, J., reads for affirmance. All concur. Judgment affirmed, with costs. THE PIONEER PAPER COMPANY, Respondent, v. COE S. BUCHANAN, Appellant. (Argued April 25, 1872; decided April 30, 1872.) E. F. Bullard for the appellant. A. Pond for the respondent. Agree to affirm. No opinion. BENJAMIN F. CARVER et al., Appellants, v. JOHN BONNER et al., Respondents. (Argued April 25, 1872; decided April 30, 1872.) DECIDED upon the admissions in the pleadings and the facts. Albert Stickney for the appellants. Noah Davis for the respondents. FOLGER, J., reads opinion for affirmance. All concur. Judgment affirmed. EUGENE R. DURKEE et al., Respondents, v. ELIZABETH R. BOWNE, Appellant. (Argued April 26, 1872; decided May 3, 1872.) James Emott for the appellant. Samuel Hand for the respondents. Agree to affirm. No opinion. CARL STRUVER, Appellant, v. EUPHROISINE POIRIER et al., Respondents. (Argued April 30, 1872; decided May 3, 1872.) John K. Porter for the appellant. J. S. Bosworth for the respondents. Agree to affirm. No opinion. CHRISTOPHER D. WALLACE, Respondent, v. ARThur Leary, (Argued May 1, 1872; decided May 3, 1872.) Amasa J. Parker for the appellant. James M. Smith for the respondent. Agree to affirm, after deducting forty dollars, with costs to respondent. No opinion. Judgment accordingly. ELIZA COLT, Respondent, v. THE SIXTH AVENUE RAILROAD COMPANY, Appellant. It is not enough to justify a nonsuit that a court upon a case made, might in the exercise of its discretion grant a new trial. It is only where there is no evidence in law, which, if believed, will sustain a verdict, that the court is called npon to nonsuit; and the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial. (Argued May 1, 1872; decided May 21, 1872.) ACTION to recover damages for injuries sustained by plaintiff while alighting from defendant's car. The car started upon the usual signal from the conductor, while the plaintiff was in the act of alighting, and before she was entirely free, her feet having reached the ground, but her dress being caught, she was in consequence violently thrown down and received the injury complained of. A motion was made for a nonsuit, which was denied. Various questions as to the reception and rejection of evidence were also decided. James M. Smith for the appellant. G. M. Speir for the respondent. 49b 671! 130 212 49b 671 f163 400 49b 671 167 70 f167 347 ALLEN, J., reads opinion for affirmance. All concur, except RAPALLO, J., not voting. NATHANIEL ROBINSON, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant. (Argued May 2, 1872; decided May 21, 1872.) A. J. Vanderpoel for the appellant. George Miller for the respondent. For affirmance, CHURCH, Ch. J., GROVER, PECKHAM and RAPALLO, JJ.; FOLGER and ALLEN, JJ., dissent. No opinion. Judgment affirmed, with costs. MARY BRICKNER, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant. (Argued December 20, 1871; decided May 28, 1872.) THIS action is similar to and was decided upon the authority of Laning v. N. Y. C. R. R. (ante, p. 521.) The case reported below, 2 Lansing, 506. Samuel Hand for the appellant. Isaac Lawson for the respondent. FOLGER, J., reads for affirmance. All concur, except ALLEN, J., dissenting, and RAPALLO, J., not voting. Judgment affirmed, with costs. PATRICK O'RILEY, Respondent, v. NELSON MCCHESNEY, Appellant. (Argued May 22, 1872; decided May 28, 1872.) PLAINTIFF was the owner of a grist-mill upon a creek in Rensselaer county; defendant owned a flax-mill upon the same creek, above plaintiff's mill. He threw the refuse flax or shives into the stream, which formed a bar in plaintiff's dam. Held, that the question whether this was a reasonable and ordinary use of the water was a question of fact for the jury. The top of the bar formed was lower than the bottom. or apron of plaintiff's flume. Defendant asked the court to charge that plaintiff had, therefore, sustained no damage; this was refused. Held, no error; that plaintiff was entitled to have his pond clear so that he could lower his flume. Various other questions were disposed of, upon the ground of the insufficiency of the exceptions. John H. Reynolds for the appellant. W. A. Beach for the respondent. FOLGER, J., reads for affirmance. All concúr; PECKHAM, J., not sitting. Judgment affirmed, with costs. ANNA KEATING, Respondent, v. THE NEW YORK CENTRAL When passengers are getting on or off a train, suddenly to put it in motion, Where a railroad company has provided a depot and conveniences for getting on and off its trains, in the absence of other proof, passengers have no right to get on at other places, and to attempt to do so would be such negligence as would preclude them from recovery for an injury received thereby. But when the company has been in the habit of receiving and discharging passengers at other places, it is not negligence for passengers to get on or off at those places while the train is standing still, and there is no apparent danger in so doing. (Argued May 21, 1872; decided May 28, 1872.) PLAINTIFF attempted to get upon defendant's train at Niagara Falls. The passenger depot was on the south side of the SICKELS-VOL. IV. 85 49 673 130 170 49 673 145 515 149 673 171 1312 171 1313 |