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The statute only bars the remedy Action to recover damages for of those who come within it, and being ejected from one of defendto that extent is a statute of re ant's trains. Plaintiff had a pose, 29 Barb., 277, and does not ticket from Utica to Rome, which pay the debt or raise presumption he had purchased the day before. of payment. 54 N. Y., 416 ; 13 The evidence in his behalf tended Am., 607.

to show that when the conductor Petitioner's remedy was not con- asked for his tic .et he tried to current with any right of action in find it and could not ; that he told him at law, and therefore was not the conductor he had a ticket and within the six years but the ten would find it ; that he felt through years' rule. The remedy by this his pockets and told the conductor petition did not exist until Sep- to go through the train and by the tember 1, 1880, when $2606, Code time he came back he would find Civ. Proc., became operative. The the ticket, or if not, he had money legislature had power to create the to pay his fare ; that the conducremedy. See 10 J. & S., 326. tor said, “find your ticket or get

The statute of limitations is not off the train ;" that plaintiff said, a bar.

“maybe you better put me off this Order reversed, costs of appeal train;" that the conductor pulled to neither party, the question the bell-rope to stop the train; being new.

that before it fully stopped plainOpinion by Bradley, J.; Smith, tiff found his ticket and offered it P. J., Barker and Haight, JJ., to the conductor who refused to

take it and put plaintiff off.

The conductor testified that RAILROADS. PASSENGERS. plaintiff produced what was ap

parently a ticket, but refused to N.Y. SUPREME COURT. GENERAL give it up until he got to Rome; TERM. FOURTH DEPT.

“I said very well, I will have to Horace N. Hayes, applt., v. stop the train and put you off;" The N. Y. C. & H. R. RR. Co., that he then stopped the train and respt.

told plaintiff to get out; that Decided Oct., 1884.

plaintiff got up and walked out

down on the ground and then When a passenger on a railroad train has wanted witness to take the ticket mislaid his ticket, and is in good faith try and witness refused and told him ing to find it, he is entitled to a reasonable time to do so, and if in case he fails to find

he had stopped the train to put it he is willing and ready to pay his fare, him off and wouldn't carry him ; the conductor has no right to put him off that the train was not stopped for the train.

any purpose except to put plainAppeal from judgment entered tiff off. At the close of the testion non-uit, and from order deny- mony defendant moved for a noning motion for new trial on the suit, which was granted. minutes.

0. P. Backus, for applt.


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D. M. K. Johnson, for respt.

Where the purpose of a promise to pay the Held, Error. If the ticket of debt of a third person is to secure a benefit plaintiff was mislaid and he, in

to the one making the promise it is an

original undertaking and not within the good faith, was trying to find it,

statute of frauds. he was entitled to a reasonable the measure of damage in an action for

breach of time to enable him to do so if he

an agreement to perform a could, and if, in case of failure to

positive act is not the consideration paid,

but the actual loss sustained, after reason find it after such reasonable oppor able care on the part of the injured party tunity, he was willing and ready to prevent its being unduly magnified. to pay his fare the conductor had A judgment roll not certified as a whole, but

the separate parts of which were each cer. no right to put him off. See 38

titied to be a true and correct copy of the Conn., 558 ; 8 Lea (Tenn.), 438.

original on file, no statement being made Hibbard v. The N. Y. & E. RR. therein that the copies were compared with Co., 15 N. Y., 455, and O'Brien v. the original, and accompanied hy no cerThe N. Y. C. & H. R. RR. Co., 80

tificate of a judge authenticating the clerk's

attestation, is not properly authenticated N. Y., 236, distinguished.

and is inadmissible. Whether or not plaintiff was allowed such a reasonable oppor Appeal from judgment in favor tunity to find his ticket or pay his of plaintiffs, entered on verdict, fare was, upon the evidence on the and from order denying motion part of plaintiff, a question of fact for a new trial on the minutes. to be determined by the jury. If Action to recover damages for a so, the nonsuit was improperly breach of an agreement. granted.

Prior to December, 1875, plainJudgment reversed, nonsuit set | tiffs, defendant and others, includaside and new trial granted, costs ing a mining company, of which to abide event.

defendant was an officer, were Opinion by Merwin, J.; Har- owners as tenants in common of din, P.J., and Follett, J., concur. certain mining property in Utah,

and for the purpose of developing

the mines it was agreed in 1873 CONTRACT. FRAUD. DAM

that defendant should be their AGES. EVIDENCE.

secretary, treasurer and general N. Y. SUPREME COURT. GENERAL agent to manage the mines. The TERM. FOURTH DEPT. association thus formed was called

the "Mayflower Mining Co.'' Jesse M. Humaston et al., respls., Plaintiffs, with others of the ownv. David Beekman, applt.

ers, contributed their labor. Decided Oct., 1884.

The evidence of plaintiffs tended Where an agent, in violation of his instruc- to show that in 1874 H. came east;

tions, contracts debts in the name of his that before he left he notified deprincipal, he himself is liable therefor, and fendant and the company not to where the principal furnishes him with

run him in debt, and that he was money to pay them the advance so made is a good consideration for his promise to per

not in debt at that time; that in form any lawful act.

September, 1875, defendant pre.

sented a statement showing that went to Utah in pursuance of the their proportion of the debts of agreement they could also recover the company was about $300; that $400 for his expenses. they insisted they were not liable The jury found a verdict for because they had served the notice $800. on him; that he acknowledged Geo. C. Morehouse, for applt. this, and proposed that if they M. D. Barnett, for respts. would give him $600 he would Held, The jury is presumed to furnish the balance and pay the have found all the facts supported debts of the company, and return by evidence that are necessary to to Utah with it and resume opera- sustain the verdict, and hence, tions; that they therefore gave that defendant, as an individual him the $600; that defendant failed and not as an oflicer or agent of to pay such debts, and by reason either mining company, agreed thereof the property was sold and with plaintiffs that, in consideralost to plaintiffs.

tion of their paying him the sum Defendant denied that he had of $600 for his own use and not on been notified not to contract debts account of any debt they owed, he on behalf of H. or plaintiffs, or would within a reasonable time that he made any such proposition pay the debts of the company. as claimed, and his evidence This agreement, if made, was valid, tended to show that he showed and when performed by plaintiffs them a statement of the debts. was binding upon defendant. If notified them that their proportion defendant, in violation of his inwas $668.18, and asked them to structions from plaintiffs, conpay it; that they then paid $600 tracted debts in their name, he on account to the secretary of the was bound to pay such debts, and company on the understanding if plaintiffs paid them they could that it was to be paid to certain recover the sum paid from him. creditors, and that it was so paid. See 1 Pars. on Cont., 80; 1 Cow.,

The jury were instructed that if 645; 2 Hall, 252; 3 Den., 575. If defendant made the arrangement, they furnished him the money to whatever it was, not as an individ- pay them they could ual but as an officer or agent of an equivalent from him. Hence the companies, or if the money if they furnished him the was paid on indebtedness of plain- money to pay their debts wrong. tiffs to the company, or was sent fully contracted by him, it was a with their consent to pay credit good consideration for his promise

of the company, plaintiff's to perform any lawful act. could not recover; that if the Moreover, according to the version agreement was as they claimed of plaintiffs, even the debts thus and performed on their part but contracted by defendant without broken by defendant, they would authority amounted to but about be entitled to recover the sum paid one half of the sum they paid with interest, or $800, and if H. him. The excess, therefore, would




form a consideration for the prom-dence, there was partial performise he is alleged to have made. ance by defendant, for he paid the

If the mining company was a $600 upon one of the debts that he partnership and the debts con- had agreed to pay. He was there. tracted by defendant were its fore liable only for such damages debts, as notice not to run plain. as were caused by his failure to tiffs in debt was, to his knowledge, pay the rest of the debts. Whether given to the company, any debt the damages would be the amount contracted by him as its agent in of the debts left unpaid or the defiance of such notice was con- value of the proper' y lost, or be tracted in bad faith and was composed partly of both of those chargeable to him.

elements, must depend upon the Also held, That the agreement evidence. was not within

the statute of Plaintiffs offered in evidence a frauds. Where the purpose of a judgment roll in an action against promise to pay the debt of a third these parties and others in the Disperson is to secure a benefit to the trict Court of Utah. The roll was one making the promise, it is an not certified as a whole, but the original and not collateral summons, &c., were each sepaundertaking 77 N. Y., 91; 8 rately certified to be full and true Johns., 28.

copies of the originals on file. The Court refused to charge The certificates did not state that that the measure of damage was the copies had been compared with the actual damages sustained by the originals, and there was no plaintiffs.

certificate of a judge of the conrt Held, That the charge as given authenticating the attestation of in respect to the measure of dam- the clerk. Defendant objected to age and the refusal to charge were the roll as incompetent, immateerroneous. The action did not rial and not properly authenticated sound in tort; no fraud was al. because it had no certificate from leged, no rescission of the contract a judge of the court, and because was pleaded or proved. The action the certificate of the clerk did not was for breach of contract. The state that the copy had been comagreement was not to indemnify pared with the original. The ob. merely, but to perform a positive jection was overruled and the act. The measure of damage in judgment roll read in evidence. such cases is not the consideration Held, Error; that the roll was paid, but the actual loss sustained not authenticated in the manner after reasonable care on the part required by the laws either of the of the injured party to prevent the State or the nation and the objecloss from being unduly magni- tion pointed out the particular de fied. 3 Den., 321; 1 Hill, 145; 2 fect under either statute. See Sutherland on Dam., 602; Sedg- Code Civ. Pro., $ 957; U.S. R. S., wick on Dam., 7th ed., 445. Ac- $ 905 ; 1 Johns. Cas., 239. cording to the undisputed evi The answer contained a general

The her


denial, "except as hereinafter ad Decided Oct., 1884.
mitted.” It then alleged, as part The mere fact that a justice of the peace
of a counterclaim, that by reason

failed in his return to a writ of certiorari

to include the oral examination taken on of the failure of plaintiffs and

the criminal complaint will not estop him, others, owners, to pay their part in a subsequent action for false imprisonof the working expenses "the ment, from showing that such examination said mines were lost to said par

was taken. ties."

Appeal from judgment for deHeld, That the fact sought to be fendant, entered on verdict, and proved by the judgment roll was

from order denying motion for new not admitted by the answer. This trial on the minutes. was not an admission that the

Action for salse imprisonment. mines were lost through the de It appeared that defendant, as fault of defendant, but an allega- justice of the peace, on May 17, tion that they were lost through 1880, issued a warrant against the default of plaintiffs. The fact plaintiff for petit larceny on the that they were lost, without show. complaint of one Mrs. F., which ing how, would be of no conse

stated that certain personal propquence. If lost as alleged in the erty belonging to her, giving answer, it would not only de. its description and value, was feat a recovery by plaintiffs, but stolen and feloniously taken from permit one against them.

house in June, 1880, admission can only be accepted as and " that the deponent part of an entire allegation. Plain pects that Mrs. Elvira Mixter has tiffs cannot rely on part of the sen

stolen and taken the same;" that tence containing the admission and plaintiff was arrested on the warreject the remainder. They must

rant and was tried before defend. accept the whole or none. 21

ant and a jury and convicted; that Hun, 537; 10 id., 537; 60 N. Y., she sued out a writ of certiorari, 530.

to which defendant made return, Judgment and order reversed and thereafter the conviction was and new trial granted, costs to reversed by the Court of Sessions. abide event.

The trial court held that said Opinion by Vann, J.; Hardin, complaint was defective in not

P. J., concurs; Follett J., con. stating facts
cous in result.

showing reasonable and probable
cause to believe that the person

charged had stolen the property, JUSTICE OF THE PEACE. and that standing alone it did not ESTOPPEL.

justify the warrant.

The court, N. Y SUPREME COURT. GENERAL bowever, received evidence tending

to show that at the time the comTERM. FOURTII DEPT.

plaint was made there was also an Elvira J. Mixter, applt., v. oral examination of the complainJames Bronner, respt.

ant under oath by defendant, in Vol. 20-No. 11.

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