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309 ; 14 Hun, 149; 39 Md., 582 ; accepted draft, and several days 10 Adol. & Ell., N. S., 111; 4 before its maturity sent it to the Hun, 709.

City Bank of Rochester, where it At the time of the agreement kept an account, instructing the appellant had possession as bailee, City Bank to collect and credit it which relation existed at the time to plaintiff's account. On December of sale of the horse, and which | 29, the City Bank sent the draft to was not affected by the agreement. the Auburn bank, with directions Nothing in the record character to remit the proceeds to defendant ized any act of the appellant in to be placed to the City Bank's respect to the property as that of credit, and to notify it thereof. owner as distinguished from that On December 19 the Auburn bank as such bailee. See 1 N. Y., 261; charged the amount of the draft

Markham v. Jandon, 41 N. Y., to D.'s account, and issned its own 241-2, does not apply.

draft on the National Park Bank Decree reversed.

of New York, payable to the Opinion by Bradley, J.; Smith, order of defendant's cashier, and P. J., Barker and Haight, JJ., mailed the same to defendant,

stating that it was for the credit or the City Bank as requested by it.

On the same day it advised the NEGOTIABLE PAPER.

City Bank by letter that the acBANKS.

ceptance was paid and the proN.Y. SUPREME COURT. GENERAL ceeds had been sent to defendant as TERM. FIFTH DEPT. requested. Defendant, on Decem

ber 20, received the draft on the The Charlotte Iron

Works,

Park Bank, which was that day respt., v. The American Exchange National Bank, applt.

paid, and the avails were credited

to the City Bank. On the day of Decided Oct., 1894.

maturity of the draft plaintiff had

a large balance to its credit at the Plaintiff left an acceptance with the R. bank for collection and credit to its account; City Bank. On December 19, the the R. bank sent it to the bank where it City Bank closed its doors, and on was payable, with directions to remit the December 21 plaintiff telegraphed proceeds to defendant to the credit of the defendant that the draft belonged R. bank, which was done in due course of business ; and the R. bank having, without to it, and was a collection for its defendant's knowledge, failed, bela, That account. Defendant offered on defeudant was not liable to plaintiff for the the trial to prove that it received proceeds of the draft.

from the Auburn bank the draft Appeal from judgment on ref. before it had any notice or knowl. free's report.

edge of the failure of the City Plaintiff held an acceptance of Bank, and in the ordinary course D., payable December 19th, at the of business credited the amount National Exchange Bank of Au. thereof to the City Bank ; that at burn. Plaintiff was drawer of the the same time defendant had no

notice of the source from which ordered before another referee, the money was derived ; that the costs to abide event. draft was paid by the Park Bank Opinion by Barker, J.; Smith, in the usual course of business on P. J., Haight and Bradley, JJ., the same day, through the Clear- concur. ing House ; that when the draft was so received and credited the

MASTER AND SERVANT. City Bank was indebted to defend

NEGLIGENCE.' ant in a much larger sum than the amount of the draft; that the N. Y. SUPREME Court. GENERAL draft was credited and applied on

TERM. FOURTH DEPT. said indebtedness, and the City Sarah Ann Williams, admrx., Bank still remained largely in debt respt., v. The Syracuse Iron to defendant. The offer of proof Works, applt. was rejected.

Decided Oct., 1884.
W. F. Cogswell, for applt.
M. W. Cook, for respt.

The rule requiring masters to exercise due

diligence to furnish safe and suitable apHeld, Error. The evidence

pliances, and keep them in a proper state which was excluded would have

of repair, applies to the premises where the constituted a complete defence. In employee is required to perform services legal effect plaintiff's debt against

as well as to the machinery. D. had been paid in money to Appeal from judgment in favor defendant. This money came to of plaintiff, entered on verdict, and defendant from one of its custom also from order denying motion ers who was its debtor, in due for new trial on the minutes. course of business, with directions Action to recover damages for to credit the same on its overdrawn the negligence of defendant, which account. See 80 N. Y., 100 ; 52 occasioned the death of plaintiff's id., 350 ; 56 id., 480 ; 3 Keyes, 425. intestate. Defendant acquired a perfect and The deceased was employed by indefeasible title to the money, defendant as an engineer, and was and plaintiff's right to follow it crushed by the falling of a door was gone. 79 N. Y., 183; 4 Burr., upon him in the mill, and shortly 452 ; 129 Mass., 358. .

before the accident was seen sitting McBride v. Farmers' Bank, smoking in the doorway, which 26 N. Y., 450; Grand Trunk R. was used for ventilation and for Co. v. Edwards, 56 Barb., 408; and taking in supplies from the canal. Ely v. Norton, 3 Keyes, 397, dis- At that time his engine was not tinguished.

running, and was 73 feet distant. This case is also within the prin- The door was a heavy one, weighciple of 7 T. R., 355 ; 2 Smith L. ing between 300 and 400 pounds, C., 77; 24 Wend., 458 ; 89 N. Y., and was raised by a pulley and 574 ; 13 W. Dig., 64 ; 124 Mass., weights weighing

about 1; Story on Bailm., $390.

pounds. Judgment set aside, new trial Plaintiff alleged and gave evi.

200

dence tending to establish that the for a nonsuit it was proper for the door, its fastenings and appliances, trial judge to consider any eviwere improperly constructed in the dence introduced by defendant first place, and that defendant had tending to assist plaintiff's case. failed to inspect or repair them for 83 N. Y., 7. several years, and that the rope Also held, That whether or not had become worn out and decayed, defendant was guilty of negligence that it broke and allowed the door was a question of fact properly to fall by simply the weight of it submitted for the consideration of self and its weighits. Portions of the jury. The ropes were prothe rope were produced for the duced before the jury, and witinspection of the jury.

nesses who had examined them Evidence was given that it was testified that they were in fact a rule of defendants that em worn out and rotten, and totally ployees should remain at their unfit for use, and there was eviposts during the hours of work, dence tending to show that they and it was insisted that deceased were improperly made, and had left his engine unattended. On been allowed to remain on the the other hand, it was insisted door since the mill was built, for that within the sense of the in- the space of about 10 years, withstructions he had received and the out being changed. There was regulations posted, that he didn't evidence tending to show that "leave” his engine. It was made ropes were not the usual applia question of fact before the jury ances in use for the purpose of whether or not deceased had sustaining doors of such weight, visited the door for the purpose of where they were more or less subgaining fresh air, or whether he ject to the action of gas, dust, went there to smoke that he might steam and other destructive not be noticed while smoking. agencies found on such premises.

It is claimed that a nonsuit There was also evidence tending to should have been ordered.

show that the pulleys on this door William E. Ayres, for applt. were not sufficient in size for William Nottingham, for respt. safety. There was no evidence

Held, That a careful considera- tending to show that there bad tion of the evidence in the light of been an inspection of the ropes the rules laid down in the opinion and door by defendant or by a on the former appeal leads to the competent person in its behalf to

a mitted no error in denying the safe condition or not. The absence motion for nonsuit, made at the of such an inspection was proper close of plaintiff's evidence, nor evidence for the consideration of in denying the motion made at the the jury in considering the quesclose of the whole case for the tion of the alleged negligence of same purpose. 80 N. Y., 622; 31 defendant. 88 N. Y., 225. Hun, 392. In denying the motion We think the rule requiring

masters to exercise due diligence sister, Mrs. S., for a consideration to furnish suitable appliances and expressed of $2,000, and also conkeep them in a proper state of re- veyed to S., her husband, a farm pair applies to the premises where of fifty acres for the expressed the employee is required to per- consideration of $1,500, subject to form services as well as to the a mortgage of $1,000, and S. theremachinery with which the business upon executed a mortgage on said is carried on. 24 N. Y., 410; 60 premises for $1,500, payable in ten id., 607, Wood on Master and Ser years, which, with a debt due him vant; 31 Hun, 392.

from P., formed the consideration Also held, That the charge was for the conveyance.

At this time as favorable to defendant as the P. was insolvent, and Mr. and law of the case required.

Mrs. S. knew this fact. The court Judgment and order affirmed. found, on conflicting evidence, that

Opinion by Hardin, P. J. ; at the time of the conveyances the Boardman and Follett, JJ., con homestead was worth $2,500 and cur.

the farm $4,000.

Plaintiff bronght suit against P., EVIDENCE. JUDGMENT.

on his claim, December 29, 1879,

and on January 7, 1880, Mrs. S. N. Y. SUPREME COURT. GENERAL recovered judgment, by confession, TERM. FOURTH DEPT.

against P., for $1,372.70, on an alEdwin B. Bush, respt., v. Me. leged accounting between them, as dina Preston et al., applts.

heirs at law of their father, on

May 12, 1877. Evidence was given Decided Oct., 1884.

on the trial of this action tending An answer given by a party in supplemen to show that shortly before these

tary proceedings prior to September 1, conveyances were made P. declared

1880, may be used as evidence against him. his intention to put his property An order for judyment setting aside convey

out of his hands to avoid payment ances as fraudulent as to plaintiff and declaring his judgment the prior and superior of his debts, and that it was done lien does not authorize the insertion of a in the above manner with the acclause in the judgment declaring that plain tive co-operation of his sister and tiff is entitled to execution.

her husband. Appeal from judgment in favor The court held that the judg. of plaintiff, entered on a trial be. ment was without any legal confore the Special Term.

sideration and that the conveyance Action by plaintiff, as a judg- of the farm and the mortgage were ment creditor of defendant P., to given and received by the respecset aside two conveyances, a mort. tive parties with intent to hinder, gage and a judgment by confession delay and defraud the creditors as fraudulent. P. contracted the of P. debt to plaintiff in 1877, while

A. Coburn, for applts. solvent. On the 24th of December he conveyed his homestead to his John W. Boyle, for respt.

lleld, That the judgment is the use to be made of evidence right on the merits.

taken in supplementary proceed. Supplementary proceedings were | ings. Old Code, S$ 292 to 302. instituted on plaintiff's judgment The position that this evidence in March, 1880, and ended in was inadmissible because the refJuly, 1880. The several defend- eree was not sworn and the testiants were examined in those pro mony never filed is untenable, ceedings. The testimony given because the admission of a party, by each of them in those pro- whether verbal or written, or made ceedings were, under objection, with or without the sanction of an admitted in evidence against each oath, is competent against the respectively, but not against the party making it. others. It is claimed that this The direction for judgment was evidence was inadmissible under that the deed, mortgage and judg§ 2460 of the Code before it ment be set aside, so far as the lien was amended in 1881; that such of plaintiff's judgment is conamendment, which prohibited the cerned, and that his judgment be use of such evidence only in a declared the prior and superior criminal action or proceeding, con- lien, with costs. The judgment tained the saving clause that it entered contained the following should not invalidate any pro- clause, “and that the plaintiff is ceeding theretofore taken pursuant entitled to execution against deto either of the sections thereby sendants to the amount of plainamended.

tiff's said judgment

with Held, It seems to be well settled interest." that the Legislature has power to Held, That this part of the judgchange the rules of evidence and ment was irregular and was not to apply the changes thus made to authorized by the trial court, but existing causes of action, 64 N. there was a simple, speedy and inY., 262; 12 id., 541. But it is un expensive remedy by motion at necessary to consider the effect of Special Term to correct the error. the amendment in qnestion, as the While it can be corrected on an argument of the learned counsel appeal, such correction should be for defendants is based upon a made without affecting the costs misapprehension. It was provided of the appeal where no other error by $ 3350, Code Civ. Pro., that is found by the appellate court. Chaps. 14 to 21 inclusive, or SS 1496 If the mortgage in question has to 3356, should go into effect Sep- been assigned to a person not a tember 1, 1880. Therefore, as the party to the action the judgment examination of defendants was can have no effect upon his rights. had prior to August, 1880, the Judgment modified by striking Code Civ. Pro. has no application. out the clause as to execution and The examination was controlled as modified affirmed, with costs. by the Code of Procedure, which Opinion by Vann, J.; Hardin, placed no such restriction upon P. J., and Follett, J., concur.

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