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116; 7 Cow., 48; 13 Wend., 71, 75; April 4, 1879, an exchange was 21 id., 631–2.

made, Cleghorn's note was delivCounty Court judgment and ered to him, and Mann's note of justice's determination and order $70 was taken by defendant, and reversed.

for the difference defendant gave Opinion by Bradley, J.; Smith, Cleghorn the instrument in suit, P. J., and Barker, J., concur;

which was indorsed then and before Haight, J., not sitting.

execution of it was made. It was transferred to plaintiff, who

brought this action and recovered. AGREEMENT.

The $70 Mann note had not been

paid. N. Y. SUPREME COURT. GENERAL

E. M. & F. M. Ashley, for TERM. FIFTH DEPT.

applt. Wm. T. Stout, applt., v. James L. P. Gordon, for respt. Liddell, respt.

Held, That the indorsement was

as much a part of the contract as Decided Oct., 1884.

if it had been inserted in the body A writing in the form of a promissory note of it on the face of the paper. The was indorsed The within to be paid

promise to pay in nine months, or when M. pays a note of $70 to L. or bearer,

at any time, depended upon the dated December 19, 1878." Held, That the instrument was not a promissory note, but condition precedent, i. e., payment a mere agreement to pay the sum named of the Mann note. 10 Pick., 228 ; on its face at the time and in the event

20 Am. Dec., 518; 4 Metc., 230 ; mentioned in the indorsement.

38 Am. Dec., 362; 127 Mass., 293-4; Appeal from County Court judg- 49 N. Y., 396; 10 Am., 382; 57 ment, reversing justice's judg- N. Y., 573, 579. ment.

The evidence given to show the Action on an instrument con reason and purpose of the indorsesisting of a paper on the face of ment could not change the ini port which is a promissory note dated of the language, which is not amApril 4, 1879, made by defendant, biguous. for $17.94, payable to J. W. Cleg Judgment affirmed. horn or bearer, nine months after Opinion by Bradley, J.; Smith, its date, with interest, and on the P.J., Barker and Corlelt, JJ., conback of which was indorsed, “The within to be paid when 0. E. Mann pays a note of $70 to James Lid

CONTRACT. LIEN. dell or bearer, dated December 19th, 1878.” Prior to April 4, N. Y. COURT OF APPEALS. 1879, defendant held a note for

The Mechanics & Traders' Na$50, made by Cleghorn and in

tional Bank v. The Mayor, &c., dorsed by Mann, and Cleghorn

of N. Y. et al. held a note made by Mann for $70, dated December 19, 1878. On Decided Nov. 25, 1884.

Under a contract between the city and a con. | fully discharged or such notice tractor, which provides that the latter shall

withdrawn. G. entered upon the furnish satisfactory proof that all persons performance of the contract, and who have done work or furnished materials, and have given notice to the Com- fully completed it January 7, 1878. missioner of Public Works before or On October 18, 1876, G. assigned within ten days after completion of the

to plaintiff all moneys due and to work that a balance is due them, have been fully paid or secured, and in the ab- grow due under his contract. sence of such proof that a sufficient sum

Both before and after that date, shall be retained to pay such claims, the but prior to the completion of the notices of lien may be given before the contract, various persons who at G’s completion of the contract, and no other

request had done work and furproof is necessary to accompany them ex

nished materials gave cept as to the amount due the claimants,

written Upon such a contract the city holds the notice, as required, which were

money only as trustee and is not liable to accompanied by the proof of the pay interest until after judgment is ren

sums due and were presented to dered against it. Modifying S. C., 15 W. Dig., 263.

the commissioner. This action

was commenced in April, 1878. This is an action brought by The notices filed had not then plaintiff, as assignee of a contract, been withdrawn, and there was to recover a balance claimed to be unpaid under the contract about due thereon. It appeared that on $12,000, which was less than the August 19, 1875, the city of New aggregate claim of the parties who York through the Commissioner of had filed the notices. All such Public Works, entered into a con. parties were made defendants with tract with G., plaintiff's assignor; the city, under allegation that that said contract was for improv. they claimed some len upon or ing a portion of Eleventh avenue, interest in such balance. The proin said city, and provided that vision of the contract as to notice G. should furnish to the Commis- to be given by those having liens sioner of Public Works satisfac was in accordance with an ordi. tory evidence that all persons that nance of the city, which provided had done work or furnished ma for a notice to be given “at any terials under the contract, and time within ten days" after the who had given written notice to completion of the work. The said commissioner, before or with complaint was dismissed, and the in ten days after the completion of money in the hands of the city the work, that any balance for was directed to be distributed such work or materials remains among the other defendants due and unpaid, have been fully John H. Strahan, for plff. paid or secured such balance, and D. J. Dean, for city, deft. in case such evidence is not für L. Laflin Kellogg and James nished such amount as may be Ridgway, for other defts. necessary to meet said claims shall Held, No error; that the notices be retained from any moneys due of liens could be given, as they G. until said claims shall be were here, before the completion

of the contract, and no other proof given on the trial of an action brought by

another person in reference to the same was necessary to accompany them

action, either party reserving the right to except as to the amounts due the

recall any of said witnesses and to call claimants.

others, no objections can be taken to the The judgment directed that the testimony so read that were not taken on

the trial of the other action, and a party city should pay interest on the

reading the direct-examination of a witness sum found due in July 2, 1878.

may also read the cross-examination where Held, Error; that the city held his adversary omits to do so. the money simply as trustee, and Evidence that there was no gate across the was only liable to pay interest

highway is admissible as descriptive of the

situation. after the entering of judgment.

Judgment of General Term, af. Appeal from judgment for plainfirming judgment of Special Term, tiff entered upon verdict and from modified as to interest, and as order denying motion for a new modified affirmed.

trial upon the minutes. Opinion by Earl, J. All concur.

c. Action to recover damages for

the death of plaintiff's intestate,

his wife, alleged to have been NEGLIGENCE. PRACTICE. caused by defendant's negligence. EVIDENCE.

Deceased was riding, by invitation,

with one M. and two other ladies N. Y. SUPREME Court. GENERAL from S. to G. M. was driving and TERM. FOURTH DEPT.

deceased was sitting upon the Lewis A. Burgess, admr., respt., front seat with him. The track y. The N. Y. C. & H. R. RR. Co., crosses the street in G. at an anapplt.

gle. The team approached the

crossing at a walk, and M., who was Decided Oct., 1884.

familiar with the crossing, looked Where it appears that the whistle was not in both directions and listened at

blown until the train was very near the tentively, but heard and saw nothcrossing, and the evidence is conflicting as 10 whether the bell was rung, the question

ing; while he was looking in the of defendant's negligence is one for the opposite direction he heard the jury.

whistle and the train was on them. Deceased was riding by invitation with The three ladies were killed. It friends, and the driver, on approaching the

was not shown what deceased was crossing, looked both ways and saw no train, and while looking in the opposite direction doing at or just before the acciheard the whistle blow and the train was dent. There was evidence that upon them. The view of the track was

the train was coming from S. at obstructed from the road for some distance and from a point 30 feet from the crossing that between the highway and

the rate of fifty miles an hour; it was only visible for about 300 feet. The train was traveling 50 miles an hour. It track there were trees and builddid not appear what deceased was doing. ings that obstructed the vision Held, That the question of contributory from

from a point in the highway negligence was for the jury. Under a stipulation allowing either party to about 300 feet from the crossing read the testimony of any and all witnesses to within 30 feet of it; that at the

Vol. 20.–No. 11a.

latter point a person looking on recalling and swearing any of the track toward S. could see only said witnesses and to produce and about 300 feet ; that prior to reach examine additional witnesses." ing the obstructions the track was The trial court held that no objecvisible to the canal bridge, which tions could be taken to testimony was about half a mile from the read under the stipulation that crossing, but the carriage was very were not taken on the trial ; that near the crossing when the train photographs proved by the ericrossed the bridge; that the train dence of a witness that was read came along with a quiet move and offered in evidence at the for. ment, and there was a slight mer trial were admişsible; that breeze from the west.

plaintiff could omit to read the It appeared that the whistle was entire evidence of a witness for not blown until the train was at or plaintiff on the former trial, and quite near the crossing, and the that plaintiff baving read the evidence as to whether the bell direct-examination of a witness was rung was conflicting. A mo could also read the cross-examination for non-suit was denied.

tion as defendant did not read it. · W. G. Tracy, for applt.

Held, No error. The stipulaLouis Marshall, for respt. tion was absolute that either party

Held, No error. The questions might read the testimony of any of negligence and contributory witness. There was no reservation negligence were for the jury to of any right to further object or pass upon. See 79 N. Y., 72; id., | to strike out. The actions were 464; 88 id., 42. The evidence of about the same accident, and the M. wonld authorize the inference stipulation assumes that the testithat had deceased looked and lis-mony as given in one case was tened as he says he did she would material in the other and that the not have seen or heard anything. record was in proper form. The Looking at the evidence in the right to recall the witnesses and light most favorable to plaintiff produce others was reserved.

If we cannot say, as a matter of law, any right to change the record that deceased was careless or that was desired it should have been the verdict in plaintiff's favor on so stated. It was not made oblithat subject is against evidence. gatory upon either party to call any

Much of the evidence given was particular witness or to call all. read from the minutes of the trial Neither party was limited to the of the case of M. against this de direct or to the cross-examination. fendant under a stipulation where. The entire testimony of any witby it was agreed that either party ness could be read by either party. might read from the stenogra- The photographs that were repher's minutes in that action “the ceived in evidence were made testimony of any and all witnesses and verified by the witness whose who testified upon said trial, either evidence was read, and were subparty reserving the privilege of stantially a part of his evidence

would go.

and were in fact produced and contradicted. Whart. Ev., $ 561 ; were competent. 83 N. Y., 464. 41 N. Y., 6. Defendant's motion

A witness was allowed to testify to strike out this evidence was that on the day in question the properly overruled, . no ground train was going faster than she being stated for the motion. The ever saw it, and another witness offer to show that the evidence of that it was running just the same the witness before the coroner way every day, as fast as the train was the same as at the trial was not

an offer to show that the witness Held, That in view of the fact before making the impeaching that the engineer of the train, statements had testified the same called as a witness for defendant, as at the trial. testified that on the day of the The court was asked to charge accident he was running the train that the deceased and M. were enjust as fast as he could, no such gaged in a common enterprise, error was made in the admission and that his negligence was her of the evidence as would call for negligence, and refused to do so. reversal.

Held, No error. 66 N. Y., 11; The statement of a witness that 71 id., 228 ; 84 id., 247; 24 Hun, at the time of the accident there 101. There is nothing to show was no gate across the highway that M. was not a competent was admitted as descriptive of the driver. situation at the time, and for no Callahan v. Sharp, 27 Hun, 85, other purpose.

does not apply. Held, That this was proper.

92 The court was requested by deN. Y., 219.

fendant to charge that if when A witness for defendant was within 30 feet of the crossing asked

upon cross-examination plaintiff's intestate, had she looked whether, in reference to his being or listened, could have discovered a witness, he had said at a certain the train 350 or 400 feet away, time and place that he proposed and she omitted to discover such to wait and see where he could train and endeavor to stop the make the most, or whether at a team by warning the driver or in certain other time and place he some other manner, then she was had sent word to M. that when guilty of contributory negligence this case came up he would be ard plaintiff could not recover. absent from the trial for an in- This the court charged with the adducement. He denied these state- dition that it was her duty to look ments, and plaintiff was allowed to in both directions, and if she could, prove them under objection. by the exercise of the care which

Held, That this evidence was an ordinary person would exer. admissible under the general rule cise under like circumstances, have that a witness' answers as to mo discovered it and failed to exercise tives in regard to the particular it then plaintiff could not recover. transaction in controversy may be Held, That the modification was

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