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than the date at which the affi was a special partner and that davit was made, which check was under the statute (1 R. S., 720, 8 duly paid.

23) in case of the insolvency or Carlisle Norwood, Jr., for applt. bankruptcy of the firm, no special Wm. Henry Arnoux, for respt. partner could, except in certain

Held, That the misstatement specially excepted cases, claim as a rendered A. liable as a general creditor until the claims of all the partner for the firm debts. 69 N. other creditors are satisfied. The Y., 148.

Register overruled this point, holdAlso held, That, notwithstand- ing that in respect to these assigning the erroneous statement in the ed claims, A. stood in the shoes of affidavit as to the payment of his assignors and was a creditor as capital, the partnership was in their representative and not otherform a limited partnership and wise. This ruling was upheld by subject to all the rules applicable the Bankruptcy Court. to such partnerships.

Held, That even if this decision Proceedings in bankruptcy were is an adjudication that A. was only instituted by W., one of the gene- a special partner and not liable as ral partners. A., the special part a general partner, it was not bindner, was not made a party thereto. ing on the plaintiff's assignors, The firm of G. & W. was duly who were outside of the bankadjudged to be bankrupt.

ruptcy proceedings and were not Held, That this did not estop parties to the application of McD. plaintiff's assignors from setting & Co. up A.'s liability as a general part It appeared that the plaintiff's ner, and the decree in bankruptcy assignors proved their debt against was not conclusive as to any fact the estate of the bankrupts before in a subsequent personal contro- they assigned their claims to versy between A. and the plaintiff plaintiff, and received a dividend or his assignors.

thereon, for which plaintiff allows In Aug., 1873, McD. & Co., credit in this action. creditors of the bankrupts, pre Held, That while the receipt of sented a petition to the register in the dividend may have had the bankruptcy, setting forth that on effect of precluding the creditors Nov. 21, 1872, two days before the receiving it, or those claiming unfiling of the petition in bankruptcy, der them, from attacking the procertain other creditors had agreed ceedings in bankruptcy, it could to sell their claims to A. at twenty- not have had the effect of estopping five cents on the dollar, and had them personally from a subsequent afterwards proved said debts in controversy with A., as to every bankruptcy, and that such debts matter adjudicated in those proso proved had been assigned to A., ceedings or involved in adjudicaand praying that said claims be tion, though not litigated. disallowed and the proofs thereof Judgment of General Term expunged, on the ground that A. affirming judgment on verdict for


defendant reversed, and new trial witness to testify to the circum• granted.

stances surrounding the accident Opinion by Rapallo, J.; all and the steps he took to release

plaintiff. He found plaintiff so

jammed in and' fastened by the EVIDENCE. DAMAGES.

broken pieces of the train that he

could not extricate him. He stated N. Y. SUPREME COURT. GENERAL that he extricated another passellTERM. SECOND DEPT.

ger and then returned to aid in Arthur Quinn, respt., v. The extricating plaintiff, the result of Long Island R. R. Co., applt.

which testimony was vital to

plaintiff's case, in that it showed Decided Dec., 1884.

that plaintiff remained in a condi. In an action to recover damages for personaltion of extreme pain and under injuries sustained by reason of the negli circumstances calculated to inspire gence of defendant, it is not error for the

terror, for thirty or forty minutes. Court to charge the jury that plaintiff is The evidence shows that plaintiff entitled to compensation for anything that increased his suffering, his mental agony,

was held down by a portion of the and that they could take into consideration fragments of the train which were “his situation at that time, how painful, the apparent support of the tender how trying it was.”

and locomotive. The tender was Appeal from judgment in favor thus supported about two feet of plaintiff entered upon verdict, above him. Plaintiff was conand from order denying motion to scious of the risk of removing the set the verdict aside as excessive, obstruction which held him lest and for errors committed upon the such removal should cause him to trial.

be crushed by the tender when the The facts sufficiently appear support to it was removed. In from the opinion.

this extremity he desired Smith to Cooke & Salmon, for respts.

kill him. The judge charged the Hinsdale & Sprague, for applts. jury that they could take into

Held, That plaintiff was carried consideration “his situation at by the defendant as a passenger that time, how painful, how trying and was negligently injured with- it was.' This precise question out any fault on his part, Al- has not been decided in this State. though the pleadings put in issue In the case of Ransom v. N. Y. & the liability of defendant, its lia- Erie R. R., 15 N. Y., 415, tbe bility was admitted as part of the Court of Appeals held that bodily case upon the trial. The cause of pain and suffering of plaintiff from the accident does not appear. the injuries were proper subjects There was a crash and the front of of compensation, and in deciding the car in which plaintiff was sit- this case cited with approval Seger ting seemed to cave in. Plaintiff v.

Plaintiff v. the Town of Barkhempstead, was thrown under the wreck. It 22 Conn., 290. When the instrucwas not erroneous to permit the Ition to the jury was that "they

had the right to consider all the ment to defendant P. for the bencircumstances of danger and perilefit of creditors. attending the accident." The con H. had two stores, one at E. and clusion of the appellate court in the other at L; the former being that case was that the injury “is in charge of a clerk, who on the not confined to his wounds and 25th or 26th of November, 1880, bruises upon his body, but extends ordered the goods in question. to his mental suffering.”

They were shipped on November Judgment affirmed, with costs. 26, and received at E. on the 1st

Opinion by Barnard, P. J.; or 2d of December. Pratt and Dykman, JJ., concur. Fraud was sought to be estab

lished on two theories; one based

on representations in fact made by EVIDENCE.

the clerk at the time the goods

were ordered, and the other on the N. Y. SUPREME COURT. GENERAL idea that H., when he received the TERM. FOURTH DEPT.

goods was insolvent and did not John P. Vidward et al., respts., intend to pay for them. v. Isaac P. Powers et al., applts.

Plaintiff offered to prove by one

G., who was a creditor of H., a Decided Oct., 1884.

conversation between him and H. The declarations of an assignor made before at L., on November 27, 1880, in the assignment and not forming a part of relation to H.'s financial standing the res gestæ, are not competent against the and business. This was objected assignee.

to as incompetent and immaterial; Appeal from judgment in favor that it had no relation to the matof plaintiffs, entered on the report ters in suit, and was immaterial if of a referee.

designed to affect defendant P.; Action for the recovery of pos- that witness was not acting for session of personal property. The plaintiffs and the conversation was complaint alleged that on or about not communicated to them. The December 18, 1880, defendants objections were overruled and the wrongfully became possessed of witness allowed to give the conand detained certain goods, the versation, which tended to show property of plaintiffs and of which that H. was insolvent, and knew they were entitled to the imme- it, and in a contingency contemdiate possession, of the value of plated an assignment. A motion $409.11, and refused to deliver by P. to strike out this testimony them up on demand ; that on or was afterwards denied and evi. about November 26, 1880, defend- dence by one D., of the same ant H., being insolvent, obtained interview, was admitted under the property from plaintiffs on objection that the declarations of credit, fraudulently, with intent the assignor were inadmissible as not to pay for it, and on December against the assignee.

. 14, 1881), made a general assign

Hannibal Smith, for applt.

S. J. Barrow, for respt.

This action was brought to reHeld, Error ; the declarations cover damages for injuries receiv. simply of the assignor before the ed by plaintiff from a fall alleged assignment and not part of the res to have been caused by a defect in gesta, are not competent against a sidewalk in one of defendant's the assignee. 50 N. Y., 352 ; 86 streets. The case is reported on a id., 630. Within the rule laid former appeal, 91 N. Y., 67. De down by these cases the declara- fendant's charter conferred upon tious of H. were erroneously ad. it power to direct the manner and mitted as against P. It is very superintend the making and reclear that they had a material in- pairing of the sidewalks in its fluence in the decision of the case. streets. (Laws 1868, Chap. 335, The fact that H. is a party defend. $ 20; Laws 1873, Chap. 406, § 17, ant does not for that reason make suö. 12.) The exercise of this the evidence competent against P., power is not left to defendant's no conspiracy being shown or discretion, but is imposed as a alleged. P. is the real party de duty (820) to be performed in a fendant, and the case against him manner prescribed. It appeared must be made out by evidence that the sidewalk at the place good as against him.

where the accident occurred had Judgment reversed and new trial been changed substantially as to granted before another referee, its slope and manner of construccosts to abide event.

tion without authority from deOpinion by Merwin, J.; Har- fendant; that defendant was notidin, P. J., and Follett J., concur. fied of the changes that had been

made, but made no objection


Leslie W. Russell, for applt. NEGLIGENCE.

Edward C. James, for respt. N. Y. COURT OF APPEALS.

Held, That an assent to the

change on the part of defendant Urquhart, applt., v. The City of will not be presumed ; that while Ogdensburgh, respt.

defendant's common council might Decided Nov. 25, 1884.

design a plan and by proper action Where the charter of a municipal corporation adopt a walk already constructed,

imposes upon it the duty of directing the and in that way secure the city manner and superintending the making immunity, this must be indicated and repairing of sidewalks in its streets, by formal corporate action. Nei. its assent to an unauthorized alteration of

ther knowledge of

individual a sidewalk by an adjacent owner, can only be shown by formal corporate action.

members of the common council Neither knowledge of individual members that a change has been made, nor of the common council that a change has an omission of the body itself to ade, nor an omission of that body object can take its place.

The to object, can take its place and secure immunity to the corporation from claims for action of the common council in injuries caused thereby.

allowing the owners of sidewalks


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to rebuild them without affirma terminated by the delivery of a material tive action on its part, and the

part of the cargo. omission of all notice of such pro

This was an action upon an open ceeding cannot take the place of policy of marine insurance issued the formal legislative proceedings by defendant and ninety-nine aswhich the charter requires, or be sociates. The policy consisted of an answer to the claim of one in a printed form in general language jured in consequence of defects of and intended to be adaptable and which the city had notice ; nor embrace almost every variety of can a disregard of such notice be marine insurance the underwriters considered a judicial adoption of might be invited to take. It the plan by reason of which they specially provided that its general were occasioned.

66 N. Y., 334 ; language should be controlled by 94 id., 27.

the endorsements of special risks, Urquhart v. City of Ogdens- as they should from time to time burgh, 91 N. Y., 67, distinguished be made “touching the adventures and limited.

and perils which the said assurers Judgment of General Term, af are contented to bear and take firming judgment on verdict for npon themselves in this voyage, defendant reversed and new trial they are of the seas

and granted.

all other perils, losses and misforOpinion by Danforth, J. All tunes that have or shall come to concur, except Miller, Earl, and the hurt, detriment or damage of Finch, JJ., dissenting.

the said goods and merchandises, or any part thereof.” It was sub

sequently provided that “vegetaMARINE INSURANCE. bles and roots

and all

other articles that are perishable N. Y. COURT OF APPEALS.

in their own nature, or which have Chadsey, applt., v.Guion, respt. been damaged before shipment

from any cause are warranted by Decided Nov. 25, 1884.

the assured free from average, A policy of marine insurance provided that unless general.” It was also proits general language should be controlled

vided that the

the policy should by the indorsement of special risks; that

"continue and endure until the the perils insured against were those of the seas and all other perils, &c., to said goods goods are landed at or any part therof; that perishable articles aforesaid." Plaintiff's assiynor or thosc damaged before shipment should was insured by indorsement upon be warranted free from average unless gen. said policy $4,000 upon 1,650 bareral. Plaintiff was insured by indorsement on 1,650 bbls. of potatoes on canal boat F.P.

rels of potatoes on a canal boat A. After 109 bbls. were delivered the boat * from New York to Yonkers, F. sunk and the greater part of the cargo lost. P. A.” It was assumed that the Held, That it was the intention of the par: letters “F. P. A.” meant that ties to exempt the insurer from payment of

the risk was free from particular any loss occurring to a portion only of the cargo, and that defendant's liability was average and that the assurers

Vol. 20.-No. 16.

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