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tion clause and the execution of occasions, that one bull was killed, the will under the supervision of a another hurt, one cow and one person familiar with the statutory heifer were hurt, and that the damformalities are to be indulged in ages resulting therefrom amounted this case, and on the whole exami- to $87. He adds that he kept 32 nation we are led safely to the con- cows; that they were frequently clusion that the proof is sufficient on the track from July 1st to the to establish this will on the trial of middle of August, and by defendan action.

ant's engines and trains were Decree affirmed, with costs. frightened and chased so that

Opinion by Dykman, J.; Bar- they gave less milk. He said, nard, P.J., and Pratt, J., concur. “ The effect on my dairy for the

season was abont 800 or 900 pounds

of butter less; the average price EVIDENCE. DAMAGES. this season has been 25 cents per

pound; that was my average sale." N. Y. SUPREME Court. GENERAL The justice rendered judgment TERM. FIFTI DEPT.

against defendant for $200 and Charles Hawley, respt., v. The costs. P.T. & B. RR. Co., applt.

A. A. Van Deusen, for applt.

H. C. Kingsbury, for respt. Decided Oct., 1884.

Held, That defendant having The defendant, being absent from the trial,

been absent at the trial, may insist may insist that plaintiff must establish his that plaintiff must establish his case by legal evidence.

case by legal evidence, and may Plaintiff's cows were injured by defendant's trains and engines, and plaintiff was per

raise the question of competency mitted to state his opinion of his loss in re on any portion of the testimony. duced production of butter resulting there. | 44 Barb., 120. from, without giving his data for his Plaintiff's speculative opinion opinion. Held, Error.

was not admissible evidence, and Appeal from judgment of County without it the evidence is not sufCourt, affirming a justice's judg- ficient to authorize the judgment. ment.

29 N. Y., 9; 43 id., 279; 23 Wend., The complaint alleged defend - 425; 8 Hun, 358; 11 id., 549; 54 ant's failure to keep its fences in Wis., 208; S. C., 41 Am., 19; 94 repair, and that in consequence U. S., 469. See also 58 N. Y., thereof plaintiff's cattle were in- 391; Schill v. Brokahus, 80 N. Y., jured, and he was damaged in his 614; Bagley v. Smith, 10 N. Y., dairy business. Defendant did 489, distinguished. And see 58 not appear at the trial, and plain- N. Y., 391. tiff proceeded and gave testimony Judgment of County Court and to show that defendant had not that of the justice reversed. kept up its fences through his Opinion by Bradley, J.; Smith, farm; that his cows and cattle P. J., Barker and Haight, JJ., went on to the railroad on several concur.

MARINE INSURANCE. In every case of marine insurance

there is an implied warranty of N. Y. COURT OF APPEALS.

seaworthiness on the part of the Van Wickle et al., applts., v. The insured, and if the vessel is not Mechanics and Traders' Ins. Co., seaworthy the policy does not atrespt.

tach. 1 Arnould on Ins., 652, 667;

2 Parsons on Cont., 5th ed., 575 ; Decided Nov. 25, 1884.

57 N. Y., 87, 21 id., 378 : 2 Robt., In every case of marine insurance there is an 539. This warranty of seaworthi

implied warranty of seaworthiness, and if ness is a condition precedent, the the vessel is not seaworthy the policy does performance of which must, to not attach.

entitle the plaintiff to recover, be If it appears that the vessel shortly before

sailing became leaky, unfit to perform the alleged and proved by him, and if voyage, or sank without encountering any it appears that the vessel shortly peril or storm, this is presumptive evidence before sailing became leaky, unfit of unseaworthiness.

to perform the voyage, or sinks This was an action on a policy without encountering any peril or of insurance on a cargo of coal storm, this is presumptive evidence issued by defendant. It was proved of unseaworthiness. 2 Arnould that the boat on which was the on Ins., 1345. cargo insured, within twenty-four Judgment of General Term, afhours after sailing was found aban- firming judgment dismissing comdoned by master and crew, in a plaint, affirmed. sinking condition, and soon after Opinion by Miller, J. All consank, going down, as sworn to by cur. one witness, "as if she broke in two as she was going down." There

EXCISE. was no proof of any storm, or that the boat encountered any extraor N. Y. COURT OF APPEALS. dinary peril. · There was no evidence introduced by plaintiffs di

Cronin, overseer, respt., v. Stodrectly showing that the vessel was dard, applt. seaworthy, even when she started

Decided Nov. 25, 1884. on her voyage. One witness testi

The omission to have an excise commissioner's fied he thought the boat was capa

bond approved, at the utmost, affords cause ble of carrying what coal she had

for forfeiture of the office, but does not on board. At the close of plain create a vacancy that can only be effected tiffs' case the complaint was, on

by a direct proceeding.

One B. was elected an excise commissioner motion of defendant's counsel,

but failed to procure approval of his bond. dismissed, on the ground that the

One K. was thereupon elected to fill the supproof did not show that the vessel posed vacancy, qualified and acted with the was seaworthy.

rest of the board in granting license to de

fendant. B. afterwards procured the apL. Laflin Kellogg, for applts.

proval and acted with the board. Ileld, Stanley & Clarke, for respt

That there was no vacancy, and that de. Held, No error. 6 Bosw., 269. fendant's license was no protection.

This action was brought to re to defendant furnishes no defense cover three penalties for alleged to this action ; that B. was a comviolation by defendant of the ex missioner de jure, and when K. cise law in selling beer, &c. The

The was elected there was no place in answer was a general denial, and which he could act. 10 Paige, 223. that defendant had a license. It That this is so although the offiappeared that he had a license to cial bond of B. was not approved sell beer granted by an acting by the supervisor until after K. board of commissioners of excise claims to have been elected. The of the town. It appeared that one omission to have it approved B. was elected such a commis- would, at the utmost, afford cause sioner at the town meeting in 1876 for forfeiture of the office, but not for a term of three years. Laws create a vacancy. That could only 1874, Chap. 444. He made and be effected by a direct proceeding filed a bond, but the same was not for that purpose. 57 N. Y., 399. . approved by the supervisor of the The legislature uses different lantown until after the town meeting guage when it intends that an act in 1877 and after one K. claimed or omission shall create a vacancy to have been elected as commis than that used in the statute unsioner and after the election of a der consideration. 77 N. Y., 503. new supervisor. K., it appeared, One who desires to enjoy the was nominated at a town caucus privileges afforded by a license, and elected a commissioner of ex Laws of 1857, Chap. 628, must see cise at the town meeting in 1877 to it that it is granted by one duly to fill a supposed vacancy caused authorized or submit to the penby the failure of B. to have his alty prescribed. bond approved. K. duly qualified Judgment of General Term, afby taking the oath and giving the firming judgment for plaintiff on bond required by statute, which verdict, affirmed. was filed in the proper office, and Opinion by Danforth, J. All was a member of the board that concur, except Rapallo, J., abgranted defendant his license. B.

sent. met with the board of excise but once, the first Monday in May,

PURCHASER.

SUBSEQUENT 1877. The board, of which K. claimed to be a member met

CONSTRUCTIVE NOTICE. March 10, 1877, and thereafter N.Y. SUPREME COURT. GENERAL from time to time down to the com

TERM. FIFTH DEPT. mencement of this action. Defend. ant offered to show that K. was

Ethel L. Lyon, respt., v. James still acting as such commissioner,

A. Wing et al., applts. but the offer was rejected.

Decided Oct., 1884. J. A. Steele, for applt.

The sale, by written agreement not under Thomas Richardson, for respt.

seal, of standing timber, with the intention Held, That the license granted that the vendee should cut and remove the

same, is sufficient to pass title to the grow. | found that by the sale and transfer ing trees, and changes them from real to

of the standing timber to plaintiff personal property as between the parties.

its character was changed from Where plaintiff's possession of a lot of land was such only as was necessary to enable real to personal property, as behim to take off the standing trees, Held, tween the parties to the agreement. that such possession was not notice of plain- 2 Barb., 613. It is apparent that tiff's rights to a subsequent purchaser of the

the intention was that the vendee lot.

should cut and remove the timber; Appeal from judgment on refer- therefore the written agreement, ee's report.

although not under seal, was suffiAction for conversion of stand- cient to pass the title to the growing trees. In March, 1879, defend- ing trees for that purpose. 2 Barb., ants agreed in writing, not under 613; 57 id., 243. So, if defendants seal, to sell plaintiff the timber have improperly appropriated the standing on a certain lot of land. trees to their own use, or have diPlaintiff accordingly entered on vested plaintiff of his title to them, the lot, cut and made roads there an action for conversion of peron through the timber, cut down sonal property may be maintained. trees, skidded a portion of them, If S. took his deed with notice, and removed some of them from actual or constructive, of plaintiff's the lot. The lot was wild and un- title, he acquired no interest in the improved, of about 640 acres, and trees as against plaintiff, and dewas unoccupied except as by plain- fendants will not be liable for contiff, whose only possession was version. Plaintiff's possession was such as was necessary to enable not such as to put S. upon inquiry him to take off the trees; and for and be equivalent to notice. 64 that purpose he worked on the lot N. Y., 76, 82-83 ; 32 N. H., 382 ; 3 with men and teams from March Pick., 149. 21 to Nov. 21, 1879, not

But we think the referee's find tinuously, but principally in the ing that S. bought in good faith is spring and fall, working only on clearly against the weight of evioccasional days during the sum-dence. mer. On the day last named de

Judgment reversed, with pew fendants executed to S. a deed of trial before another referee, costs said lot. On Dec. 10, S. ordered to abide event. The order to explaintiff to stop cutting the tim press that the reversal is upon a ber, and he subsequently, under question of fact. his deed, entered into possession Opinion by Smith, P. J.; Barof the lot and timber and has since ker and Bradley, JJ., concur ; retained possession to the exclu- Haight, J., not voting. sion of plaintiff. Plaintiff's agreement was not recorded.

RAILROADS. STATUTES. W. H. Henderson, for applts.

N. Y. COURT OF APPEALS. Goodwill & Stevens, for respt. Held, That the referee properly The Mayor, &c., of N. Y., respt.,

Vol. 20.-No. 7.

con

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The Broadway & 7th Ave., thorized to charge the same rate RR. Co., applt.

of fare for the conveyance of Decided Nov. 25, 1884.

passengers on said railroad as is

now charged by other city railThe intent of $ 2 of Chap. 513, Laws of 1860, roads in said city.” When this

providing for the construction of defend act was passed two railroad comant's road, was to authorize the collection panies in said city paid a license of a certain sum for each car, to be fixed by

fee of $50 each per car, one paid a the sum paid by other railroads in the city, and as a majority of those which pay a li

license fee of $20, and three paid cense pay $50 per car and only one pays less no license fee whatever. One of it is clear it was intended to include the the latter, the year previous, had majority. If there is any ambiguity as to paid a license fee of $50 per car. the amount of the license the greater amount should be taken.

An ordinance was passed requiring The sum reserved by defendant's charter or defendant to pay a license fee of

prescribed by the city ordinance, is neither $50 per car. a tax, penalty nor fine, and the statutes and

John M. Scribner, for applt. rules applicable to cases of that character do not apply.

E. Henry Lacombe, for respt. Where a railroad neglects to ascertain and Held, That, having in view the pay its license fees interest thereon is allow | intention of the

intention of the legislature and able.

the purpose and object to be atAffirming S. C., 16 W. Dig., 185.

tained, it is evident the design of This action was brought to re the legislature was to authorize cover an annual license fee of $50 the collection of a certain sum of for each car run by defendant money for each car run on defendduring certain years, as authorized art's road, and that amount by Chapter 513, Laws of 1860. should be fixed and determined by That act provides for the construc- the sum paid by other railroads in tion of a railroad in Seventh Ave the city, and as a majority of those nue and in other streets and ave. which pay a license fee pay $50 nues in the city of New York per car, and only one pays a less which are mentioned. Section 2 amount, it is clear that the intent of said act provides that the road of the statute was to include the shall be constructed after the most majority. approved plan and run as often Also held, That if any ambiguity as the convenience of passengers exists as to the amount of the li. shall require, and shall be subject cense the greater amount should to such rules and regulations as be adopted, as any ambiguity in the Common Council of said city the grant of privileges must opermay from time to time by ordi- ate agaist the grantee and in favor nance prescribe, and shall pay to of the public. 93 N. Y., 129 ; 64 said city “the same license fee an- N. C., 158; 29 Conn., 210; 26 nually for each car run thereon as Penn. St., 355; 27 id., 303; 10 is now paid by other city railroads Bush (Ky.), 771; 54 Ala., 13 in said city, and the said persons N. J. Eq., 81; 10 Fla., 145; 1 and their assigns are hereby au- | Black, N. S., 358; 21 Conn., 294; 5

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