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South 3d and South 4th streets, in there was no such house in that Williamsburg, Brooklyn, and the locality on that date. It was arevidence alleged in this action to gued that the prosecuting witness have been false was that the pris- was not sufficiently corroborated. oner had seen such plaintiff enter Held, That the corroboration was a house of assignation in that all that could be reasonably relocality and on that date with a quired to put the prisoner upon man and remain in such house for his defence, for what the law has about an hour. It was objected exacted is not positive proof of the that this evidence was not material falsity of the evidence in addition inasmuch as it was not stated that to that given by the prosecuting such man was not plaintiff's hus- witness, but that there should be band.
additional evidence strongly corHeld, That it was not necessary roborative of it. 1 Greenleaf on to render the prisoner's evidence Ev., 7th ed., $ 257; 3 id., $ 198 ; material that it should also have 14 Peters, 430; 6 Cow., 118. included the fact that the man That the failure of the prisoner stated to have been with the plain- to produce any witnesses to estabtiff, in the action, was not her lish the truth of the evidence husband. That in order to estab. given by him in the divorce action lish the defence alleged in the tended materially to strengtben action it was necessary that it and confirm the evidence given by should be shown that the plaintiff the witnesses sworn on the part of went into the house with a man, the prosecution.
21 N. Y., 578; and also that such man was not her 33 id., 501 ; 69 id., 309. husband. Each included a material Judgment affirmed. inquiry in the case, and evidence Opinion by Daniels, J.; Davis, given to prove either of these facts P. J., and Brady, J., concur. would consequently be material to the issue, and as defendant was shown to have given evidence di. EXECUTORS. POWERS OF rectly tending to establish the ex
SALE. istence of one of these facts, if N. Y. SUPREME COURT. GENERAL that was wilfully false, he com
TERM. FIRST DEPT. mitted the crime of perjury in giving it. 59 N. Y., 117, 123. In the matter of the opening of
Upon the trial of the indictment the Riverside Park, on the applithe plaintiff in the divorce action cation of N. Dane Ellingwood and testified that she had not gone into others, for an award, &c. a house of assignation in the local
Decided Oct. 8, 1884. ity and on the date testified to by the prisoner, and her evidence was A testatrix by her will bequeathed one thoucorroborated by two persons who
sand dollars apiece to two of her grand
children “to be paid out of the proceeds were familiar with the locality in
of her real estate when her executor might question, and who testified that
deem it advisable to sell." She then di
vided the “residue of her real estate
to the person claiming under the into two equal parts, one of which she
deed from such executor, and, devised to her daughter, directing her executor to pay such daughter the income
from the order confirming his rearising from it “ until he might think it port this appeal was taken. advisable to sell the property,” and the Jaines A. Deering, for applt. other she gave to her son, together with Alexander B. Johnson, for respt. all her personal property. Held, That her executor had power to sell such real
Held, That all of the personal estate.
property of the testatrix having
been given to her son, there was The Commissioners of Estimate nothing to pay the legacies, except and Assessment, in the matter of by a sale of the real estate, and if the opening of the Riverside Drive, no other provision existed that awarded $3,150 to "unknown own. would be sufficient to authorize ers," for a plot of land taken for the sale in connection with the such improvement. There were words of the will, directing the two sets of claimants of such award, | legacies to be paid out of the proone set claiming as devisees under ceeds of the real estate. the will of Frances De Peyster, That moreover, after the gift of and the other as grantees of her $2,000, to be paid out of the proexecutor, under a power of sale ceeds of the real estate when the alleged to have been conferred executor might deem it advisable upon him by such will. The con- to sell, the testatrix devised the · troversy was referred to a referee, residue of her real estate-not the before whom it appeared that the entire real estate, but the residue, property in question belonged to i. e., what should remain after the the said Frances De Peyster, and sale of so much of it as might be by her will she bequeathed $1,000 necessary in the discretion of the apiece to two of her grandchil. executor, if he chose to exercise dren, to be paid out of the pro his discretion in that respect. That ceeds of her real estate when her no doubt could be entertained of executor might deem it advisable the power of sale under the proto sell. She then divided the resi- visions of this will, and therefore due of her real estate into equal the deed from the executor was parts, one of which she devised to valid. her daughter, directing her execu Order affirmed. tor to pay her the income arising Opinion by Brady, J.; Davis, from it until he might think it ad P. J., and Daniels, J., concur. visable to sell, and the other she gave to her son, together with all her personal property, with the MASTER AND SERVANT. exception of a pew in the North
N.Y. SUPREME COURT. GENERAL Dutch Church. The referee de.
TERM. SECOND DEPT. cided that the executor of Frances De Peyster was given a power of Dudley, admrx., applt., v. The sale, and that the award belonged N. Y., L. E. & W.RR. Co., respt.
Decided Sept., 1884.
and stronger. No claim was made If ordinary ingenuity has been exercised to that they were defective.
the utmost to provide machinery and One of plaintiff's expert witmeans for the endurance of the enormous
nesses said : “ Where these chains strain imposed upon it by railroad use, and when the best practicable inventions are
are upon the engine there are two utilized and the best human foresight exer
of them, one on each side, so that cised, the master is not liable even though in case of these chains we have injuries are sustained by the servant.
two pieces of iron of an inch in Appeal from judgment for de diameter for that purpose. In the fendant on dismissal of complaint. coupling link there is but one inch
Action to recover damages for of iron, 1 inch or 1} of an inch in the death of plaintiff's intestate diameter. I do not say that in caused, as alleged, by the negli- my opinion two bars of iron of gence of defendant in failing to an inch in diameter would not furnish suitable appliances for his have the same bearing strain as use.
one link of iron 15 inches in diamIntestate was a fireman in the eter.
Two bars of iron of an employ of defendant, and his posi- inch in diameter each will carry a tion was often over the link that trifle more than one bar of iron 1 couples the engine to the tender. inch or 14 inch in diameter, probThey were attached by a draw-bar ably two tons more.” It appeared held in position at each end by a that the safety chains provided pin 14 inches in length and 2 in for this engine were as large as diameter, through the lower end any in use and were in fact of each of which was a' hole for a stronger than the coupling links key. The coupling link was 11 ordinarily used and that everyinches in diameter. On each side thing was in place and in order of the pin were two iron safety when the accident occurred. chains 12 inches long, } of an inch The complaint was dismissed. in diameter, with iron hooks of
T. & J. W. Lyon, for applt. the same size. Before the train, consisting of
Lewis E. Carr, for respt. 30 or 40 freight cars, started, Held, No error. The rule to be all these appliances were exam deduced from the later cases ined and placed in order by de seems to be that the master is not ceased and the engineer.. While an insurer and does not underpassing up an ascending grade the take that the machinery furnished pin in the engine end of the draw will never fail ; that he may manworked up, cut off the key on age his business in his own way both sides and released the draw and with appliances adapted to its bar; the safety chains parted, the necessities, provided such means engine shot ahead and deceased and appliances are safe and suitfell on the track and was killed. able for the use of his servant. It was claimed that the safety Vigilance must be measured by chains should have been larger ! the danger to be apprehended and
the master owes the servant the J., concurs ; Barnard, P. J., disduty to place him under no risk sents. from inadequate machinery. 76 N. Y., 125 ; 19 W. Dig., 34. The
LIMITATIONS. natural risks incident to employment on a railroad train are very
N. Y. SUPREME COURT. GENERAL great and the employe assumes
TERM. SECOND DEPT. them all, and if injury comes to
Havemeyer et al., exrs., applts., him which ordinary prudence and v. Quintard et al., respts. vigilance could not anticipate and
Decided Sept., 1884. provide against he is without remedy against the master.
In an action for mouey loaned, the court found
that the cause of action, if any, accrued In the application of these rules
more than seven years before action brought to this case we reach the conclu
and declined to find on plaintiff's request sion that no fault is laid at the
that it was a case of mutual accounts or redoor of defendant. The machinery ciprocal demands. Held, That the finding provided was adequate and the disposed of the case and that the action was
barred by the statute of limitations. fact that it gave way under exceptional strain is not sufficient of
Appeal from judgment directed itself to impose liability on de. by the court on a trial without a fendant. If ordinary ingenuity jury. has been exerted to the utmost to The appeal is brought on the provide machinery and means for judgment roll, plaintiff's request the endurance of the enormous to find, the findings thereon and strain imposed on it by railroad on plaintiffs' exceptions. The comuse, and when the best practicable plaint alleged the loan of $90,000 inventions are utilized and the by plaintiff's testator to C., the best human foresight exercised original defendant, in three sums liability is escaped even though at as many different times. An injuries are sustained. Responsi. swer, general denial and statute of bility follows the absence of care limitations. and ceases with its proper exer The court found that the testator cise. The same means are used to made and delivered to C. a check couple and hold together this en for $10,000, dated March 30, 1864; gine and tender that have long one for $50,000, dated April 21, been in use and found sufficient. 1864, and one for $30,000, dated They were all in position and in April 30, 1864; that these checks order and there is nothing dis were endorsed by C., deposited in closed on which a charge of negli- bank to his credit and collected by gence could be supported. De- the bank for his account, and that fendant being without fault that otherwise C. did not receive from will sustain an action there was testator the sums charged in the nothing to submit to the jury. complaint.
Judgment affirmed, with costs. He also found that whatever Opinion by Dykman, J.; Pratt, cause of action, if any, accrued to
H. against C. by reason of the mat- mencement of this suit and that ters found accrued more than seven finding must dispose of the case. and a half years before the action For if it be, as plaintiff claims, a was commenced.
case of reciprocal demands there Plaintiffs claim that there were must be taken as a finding that reciprocal demands and an open the last item or demand was more mutual account between testator than seven and a half years old. and C., and so that the cause of Judgment affirmed, with costs. action must be deemed to have Opinion by Dykman, J.; Pratt, accrued at the time of the last item J., concurs ; Barnard, P. J., not proved on either side. All the sitting. facts on which they rely to establish reciprocal demands are includ- SHERIFF'S FEES ON ATTACHed in their requests, Nos. 21 to 26.
MENT. Under all but the 23d are the words “not found,” without signature,
N.Y. SUPREME COURT. GENERAL and under the 23d are the words
TERM. FIRST DEPT. “found except the word mutual." John Maxfield et al. v. Ann After the last request are the find. Taylor et al. ings without numbers: “I find the $90,000 has never been paid
Decided Oct. 31, 1884. nor any part of it or allowed in the sheriff is not entitled to additional comany way. I find that the claim is pensation for his trouble and expenses in barred by the statute of limitation
taking possession of and preserving prop.
erly scized under an attachment when the and the defendants are entitled to
property attached consists of a debt owing judgment."
10 defendant and the attachment is made Held, No error; that all the by serving a copy of the attachment with facts relied on to establish recipro.
notice stating the seizure to the debtors.
The sheriff is not entitled to charge a gross cal demands are either not found
sum for making an inventory of property or found against plaintiff. The seized under an attachment. He must mutuality of the claims is distinct charge by the number of folios contained ly repudiated; the finding that the
therein. claim is barred by the statute of
The sheriff has the right to bring an action
for the recovery of a debt seized by him limitation stands unimpeached under an attachment and as incidental to and undisturbed. This action is not that right he is entitled to be allowed the founded on mutual demnands or on expenses incurred by him in the proceedopen account. It is for the recov
ings taken in that manner. ery of money loaned, and there is
Appeal from an order adjusting no proof or finding of payment on and allowing sheriff's fees on the account or acknowledgment of the issuing and service of an attachdebt.
ment. We have nothing, therefore, The attachment was served upon against the finding that the cause a debt owing to the defendants. of action accrued more than seven The service was made by deliverand a half years before the coming a copy of the attachment with
Vol. 20.-NO, 6.