owing his estate; that by the articles it was agreed that in case of the death of a member previous to the time limited for the termination of the partnership it should nevertheless continue for said term, and all the property should continue and remain in the business notwithstanding, and the business should be carried on by the survivors for and during the term specified. was proper. The plaintiff, as ad- Defendants contended that the petition was fatally defective in not stating that the books, &c., contained any entries showing any indebtedness to deceased, or of any matters in respect to which a discovery is sought, Rule 15; that the petition should state in what particulars the partnership articles have been violated, and that the books contain entries showing such violation, and show what in formation in respect thereto is required; that in view of the articles providing for continuance of the copartnership, and vesting in the survivors possession and control of the property, &c., plaintiff must show facts from which the court would be warranted in finding that there are reasonable grounds for for dissolution; that plaintiff's co-administrator has all the information desired; that defendant administrator must be joined as co-plaintiff to maintain the suit. Humphrey & Lockwood, for ity unites with the others in applts. Brundage & Shipman, for respt. Held, That an order granting a discovery and inspection of the books, with leave to take copies, Held also, As the defendant administrator has interests adverse to plaintiff by being also a surviving partner, and in such capac withholding the books from her, and refuses to join with her as plaintiff, he was properly made a defendant. Order affirmed on opinion of Daniels, J., at Special Term; Smith, P. J., Barker, Bradley and Corlett, JJ., concur. FIXTURES. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. ground, without any other fastening than that of gravity. The engine could be removed from the building on the trucks without injury thereto. At the time of purchasing the engine P. gave a chattel mortgage on it to secure the purchase price, which he afterward paid. In 1878 and 1881 he William H. Hart, respt., v. placed the chattel mortgages, George Sheldon, applt. Decided Oct., 1884. The question whether a boiler and an engine in a factory, resting upon trucks so they could be drawn out of the building without injury thereto, is a fixture depends upon the intention of the proprietor who placed them there; and the question of intent is for the jury. Appeal from judgment and order denying new trial. Action for conversion of certain machinery, including a boiler and engine, used in a tub factory. In 1872 one W. bought the premises, on which was then a tannery, and converted the buildings into a tub factory, and put in machinery run by steam. In 1875 W. sold the premises and machinery to one P., who continued the business and assumed payment of a real estate mortgage then covering the premises, under which this defendant claims the machinery in suit. 1876 P. replaced the old engine by the one in suit and used it there until foreclosure of the real estate mortgage in 1881, when defendant purchased the premises. The boiler and engine were of six horse-power, combined, and resting on its own frame, standing on wheels six inches in diameter, which rested directly on the In under which plaintiff claims, upon the engine and boiler and other machinery in the building. The trial judge ruled as matter of law that the engine and boiler were not fixtures, and that plaintiff was entitled to recover their value. W. L. Sessions, for applt. Held, That the engine and boiler was affixed and attached to the soil, so that they became part of the freehold, if it was the intention of the owner of the land, at the time he put the same on the premises, to make a permanent improvement to the freehold with a view of adding to its value and to propel the machinery used therein; and the question of intent was for the jury. The evidence was sufficient to sustain a finding by the jury that it was P.'s intention to affix the engine and make it part of the realty. 1 Washb. Real Prop., 17: 66 N. Y., 495; 12 id., 170; 53 id., 377; 48 id., 278; 40 id., 287; 4 Metc., 306; 10 Cal., 258; 28 Vt., 428: 34 id., 220; 35 id., 317; 30 id., 443; 2 Watts & Serg., 116; id., 390. See Judgment and order reversed and new trial granted, costs to abide event. Opinion by Barker, J.; Smith, P. J., Bradley and Corlett, JJ., concur. NEGLIGENCE. ACTION. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Frank L. Pineo, admr., respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided Oct., 1884. A passenger about to board a train at a station has a right to suppose, in the absence of a notice to the contrary, that the way to the train is safe, and he is not bound to anticipate that an engine will back into the station upon another track, without warning, when the passenger train is mov ing in the station just before it is to stop. It does not bar recovery for causing the death of a child that her father has emancipated her or is dead. Appeal from judgment on verdict at Circuit, and from order denying motion for new trial. Action for damages for the death of Nellie Pineo, a girl fourteen years and seven months old. On the day of the accident deceased reached defendant's Rochester depot by the Auburn branch, and was told by the conductor that she would have to take another train for Buffalo, her destination, which would shortly arrive on the Syracuse branch. Six tracks ran Six tracks ran through the depot in three pairs; between the pairs was a space of about twenty-three feet, and the tracks of each pair were about six feet apart. The Syracuse train came in on the fourth track. Evidence on plaintiff's part tended to show that as the train came in, running about four miles an hour, an employe of defendant told deceased that was her train; that she was then standing between tracks two and three; that she went toward the train, carrying her luggage, crossed the third track, looking toward the train, and stood between tracks three and four until the engine of the train passed her. Just then an engine and tender, used as a pusher, came backing from the west on track three, and one of defendant's men named Bolger, apparently thinking deceased was in danger, tried to catch hold of her, and she was struck by the pusher and was fatally injured. Bolger testified that he thought deceased was intending to cross in front of the train and that she was in danger from the train; that if he had let her stand where she was and she had not moved she would not have been struck by the pusher. There was conflict of testimony as to whether, when Bolger seized her deceased was standing between tracks three and four or had crossed on to track four. Defendant insists that the court erred in refusing to charge that there was no evidence that the life of deceased was of any pecuniary value to her father, who had abandoned his family years before, and had not supported his daughter, and whose family did not know whether he was dead or alive. The verdict was for $3,500. A. H. Harris, for applt. Held, That deceased was a passenger at the depot at defendant's implied invitation. She had a right to suppose that the way was safe to the train which was pointed out to her as the one she was to take. The backing of the pusher was an act of gross negligence. If the bell was rung it was no notice to her unless she actually heard it, and that she did not is to be inferred. That she did not look in the direction of the pusher was at most but a circumstance to go to the jury. But, if left alone, deceased would not have been hit by the pusher, which fact renders immaterial the question of due care in crossing the track. It was no error to refuse to charge that if deceased passed on track four, and was there when Bolger seized her, she put herself in danger voluntarily, and plaintiff could not recover. Deceased received no injury from the train on track four. Whether the father of deceased be dead or alive it does not follow that there can be no recovery. Those questions are material for the purposes of distribution only. See Code Civ. Proc., § 1903. We see no reason to set aside the verdict as excessive. Judgment and order affirmed. Opinion by Smith, P. J.; Haight and Bradley, JJ., concur; Barker, J., dissents. STOCK. VALUE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. John J. Hanna, respt., v. Amos C. Sandford, applt. Decided Oct., 1884. An offer of a certificate of stock for sale at auction where no bid was made for it is immaterial to show that the actual value of the stock was below par, and the opinion of a witness, based on such facts, is incompetent. To prove the value of stock which has no market value it is competent to show that the company which issued the stock has continued in business and employed a large number of men, and has been in fair credit, and that the property is valuable and the stock has been considered valuable up to the time of the inquiry. Appeal from judgment on referee's report. Action to set aside a bond and mortgage for usury, consisting in making it a condition of the loan for which the securities were given that plaintiff should purchase certain stock at its par value, which was much greater than its cash or market value, and that the trans-action was a scheme by defendant to obtain a usurious rate of interest for his loan. The sum secured was $2,500, made up of $2,000 cash, and $500 the purchase price of 5 shares of stock of a manufacturing company of the par value of $100. The referee found that the loan of money and the sale of the stock were one transaction, and the purchase of the stock was made a condition to the loan; that at the time of the transaction the stock was of doubtful value, and worth considerably less than par, as was known to both parties. Evidence as to the value was conflicting, but tended to show that it was below par and that the stock had no market value. M., a witness called by plaintiff, testified that some months before he had, as an administrator of an estate, advertised several shares of this stock for sale at public auction in the village where the company was located; that at the time and place advertised he was present with a certificate of stock, and acted as auctioneer, and there were present more than two persons; that on offer of sale no bids were made; that the sale was adjourned and the stock was again offered and no bids obtained; and that on another occasion he sought to sell the shares and received no bid. Basing his opinion upon the foregoing facts witness testified that he did not think the stock had any market value. The treasurer of the company, on cross-examination, was asked by defendant, "whether the company from the day of its formation to the present time has continued in place and existence, in manufacturing and selling goods." This was excluded. Defendant then offered to show "that the company has continued in the business for which it was organized and continued to employ a large number of men, and has been in fair credit, and the property is valuable and the stock has been considered valuable from that time to this." The offer was excluded. The exclude defendant's offer. The plaintiff in a case like this must maintain his side of the issue by evidence clearly competent, and defendant should not be deprived of proof of any probative force on the material issues. Judgment reversed and new trial granted, costs to abide event. Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ., concur in result. This action was brought to reform a policy of insurance and to recover upon it when reformed. As written it insured one Miller and the loss was made payable to him "as his interest in equity may appear." Plaintiff alleged that he made a verbal agreement with defendant's agent, one Stowell, to insure plaintiff, which Stowell through mistake failed to do in H. M. Field, for applt, T. H. Bennett, for respt. Held, That the mere offer for sale at a time and place when no buyer was present was worthless evidence, deceptive and misleading, and an opinion based on those facts was immaterial and incompetent. Also held, That it was error to writing the policy, and that plain Vol. 20.-No. 13. |