the part of a railroad corporation to induce a passenger to leave a train while in motion, and a gross disregard of the duty it owes him not to stop the train entirely and give the passenger ample time and opportunity to alight. 49 N. Y., 51. Evidence tending to show that a signal was given by a railroad conductor while a passenger was getting off, and without warning to him would, in an action brought to recover damages for injuries received by a passenger, tend to show negligence on the part of the company. 49 N. Y., 673. Also held, the plaintiff, being called upon to act upon a sudden emergency, and, under the circumstances proved, should not be held to the most rigid accountability for his action. 88 N. Y., 49; 49 N. Y., 52. Judgment of General Term, affirming judgment of non-suit reversed, and new trial ordered. Opinion by Miller, J. All con cur. STATUTE OF FRAUDS. N. Y. COURT OF APPEALS. Smart, respt., v. Smart, applt. Decided Jan. 20, 1885. By a parol agreement defendant agreed to sell to plaintiff a mill and machinery and receive in payment certain notes, &c., half the stock in a store, and possession of the store for the unexpired term, the rent for which he agreed to pay to the lessor. Defendant took possession and carried on business in the store for a time and paid the rent up to the time he left, but failed to pay the balance of the term. Held, That defendant's promise to pay the rent was upon a new consideration, moving directly Vol. 20-No. 17. to him, and was not void under the statute of frauds. This is an action for the recovery of rent. It appeared that plaintiff leased from W. a store in Troy, New York, for five years from May 1, 1871, at an annual rental of $1,500, payable quarterly, and that plaintiff owned or controlled a one-half interest in the stock of goods in the store; defendant, at the same time, owned a paper mill in said city; that a negotiation was had between the parties which resulted in a parol agreement that defendant should sell to plaintiff the mill and its machinery for $32,500, and receive in payment therefor certain notes and mortgages, the half interest in the stock of goods, and, as plaintiff's evidence tended to show, possession of the store for the unexpired term (then, about fourteen months), and defendant, on his part, agreed to pay the rent to the lessor for that term. This part of the agreement defendant denied. It was proved that on the same day defendant was placed in possession of the store and goods by plaintiff; that he carried on business there until the 25th of May following, and paid the lessor rent up to that time and has made no further payments. The court charged, among other things, that, "if the defendant took this term, and agreed to pay the rent during the term till the expiration of the lease, the plaintiff is entitled to recover." This portion of the charge was excepted to by defendant's counsel. dict was rendered for plaintiff. A ver James Lansing, for applt. the lot the lessee acted as an independent contractor and not as the servant or agen of the lessor. question whether a certain day was a proper one for burning a fallow. Where the facts are of such a nature that jurors generally are just as competent to form opinions and draw inferences from them as witnesses, there is no occasion to resort to expert evidence. Reversing S. C., 14 W. Dig., 118. Held, That the case was properly Expert evidence is not admissible on the submitted to the jury; that defendant's promise to pay the rent was upon a new consideration, which moved directly to him, and was made for his and not for plaintiff's benefit; that this obligation was part of an undivided transaction and stands upon the whole as a consideration, and comes within the principle that a purchaser is bound by his promise to pay the price to a creditor of the vendor, although it is not in writing, and the vendor remains bound. 8 Johns., 29; 2 Den., 45; 21 N. Y., 412. There having been a complete performance by plaintiff, and an acceptance thereof by defendant, justice requires that the rent should be paid. 72 N. Y., 259. A parol agreement in part performed is not within the statute of frauds. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Danforth, J. All concur. This action was brought to re- N. P. Hinman, for applt. Held, That defendant was not liable for any damages arising from NEGLIGENCE. LEASE. EVI. the negligence of H. in kindling DENCE. N. Y. COURT OF APPEALS. Ferguson, applt., v. Hubbell, respt. Decided Dec. 16, 1884. Where one leased land to another on shares, with the proviso that the lessor would pay the lessee for clearing a part of the same, Held. That the lessor was not liable for the negligence of the lessee; that in clearing the fire; that in clearing the lot H. was an independent contractor and not a servant or employee of defendant, and the doctrine of respondeat superior could not apply. 61 N. Y., 178. It also appeared that defendant, for the purpose of clearing a lot belonging to him, which also adjoined plaintiff's premises, and which was not leased, started a opinions in reference to them and draw inferences from them as witnesses, there is no occasion to resort to expert or opinion evidence. Such evidence should not be much encouraged, and should be received only in cases of necessity. fire thereon which spread to plain- | ally are just as competent to form tiff's land. There was evidence which tended to show that it was this fire that destroyed plaintiff's buildings; that at the time the land was very dry and the fire was started when the wind was blowing a strong gale in the direction of plaintiff's lot. Defendant's witnesses gave evidence as to the condition of the land, the state of the weather and of the wind and various other circumstances surrounding the fire. Defendant, as a witness in his own behalf, testified that he was a farmer and had cleared and seen others clear land. He was then asked whether in his opinion it was a proper time when the fires were started for burning log heaps on a fallow that had been burned over. This was objected to, and the objection being overruled an exception was taken. Held, Error; that the subject of the inquiry was not one requir ing expert evidence. It is not sufficient to warrant the introduction of expert evidence that the witness may know more of the subject of inquiry, and may better comprehend and appreciate it than the jury, but to warrant its introduction the sub ject of the inquiry must be one relating to some trade, profession, science or art, in which persons instructed therein by study or experience may be supposed to have more skill and knowledge than jurors of average intelligence may be presumed to have. In a case where the facts can be placed before a jury, and they are of such a nature that jurors gener The opinions of experts should not be received where the inquiry is into a subject the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it. 29 Vt., 409; 107 Mass., 494; 105 id., 297; 8 Minn., 23; 33 Cal., 230; 35 Iowa, 109; 23 N.H., 237; 5 Hill, 603; 40 Barb., 137; 10 N. Y., 114. Hayes v. Miller, 70 N. Y., 112, distinguished. Judgment of General Term, affirming judgment on verdict for defendant, reversed, and new trial ordered. Opinion by Earl, J. All concur, except Miller, J., dissenting. JUDGMENT. N. Y. COURT OF APPEALS. Clapp et al, exrs,, applts., v. Hawley et al, respts. Decided Jan. 20, 1885. The signature of the judge forms no part of the judgment entered and need not be contained in the copy of judgment served to limit the time within which an appeal may be taken. This is an appeal from an order of General Term, reversing an order of Special Term denying a motion by defendants to compel plaintiffs to accept a notice of appeal. It appeared that on Feb. 10, 1882, a paper was served on defendants' attorneys, which was indorsed "copy judgment," with a notice that it was a copy of a judgment entered in the above entitled action in the office of the clerk of Westchester county on the 4th of Feb., 1882. The notice was duly subscribed with the name and address of plaintiffs' attorney. These papers were retained by defendants' attorneys and no offer made to return them, or any objection made to them, until the present motion was made in Feb., 1884. It was claimed that as the draft judgment filed for the purpose of entry in the clerk's office had appended to it the signature of the judge upon whose decision the judgment was to be entered, and as no copy of such signature was appended to the copy of the judgment, as entered, served on defendants' attorneys, the service was not good, and defendants' time to appeal had not expired. The judgment entered in this case on the decision of the court was a final one. No attempt to appeal was made until Dec. 14, 1883. A. R. Dyett, for applts. Wm. H. Arnoux, for respts. Held, That, there being no controversy as to the facts, the question raised by this appeal is one of law. The order appealed from affects a substantial right. 22 N. Y., 321. The signature of the judge was no part of the judgment, and was not necessary for any purpose. It simply relieved the clerk from comparing the decision of the court with the proposed judgment furnished by plaintiffs' attorney. It was wholly superfluous, 3 Robt., 331, and therefore the service made Feb. 10, 1882, was regular, and the time to serve notice of appeal having expired, defendants' motion was properly denied. Order of General Term, reversing order of Special Term denying motion, reversed, and order of Special Term affirmed. Opinion by Rapallo, J. All concur. POOR. AUDIT. N. Y. COURT OF APPEALS. Neary, applt., v. Robinson et al., Supts., respts. Decided Jan. 20, 1885. An attorney's claim for services rendered in prosecuting a bastardy case is not one "relating to the relief, support or transportation of the poor" within the meaning of the statute giving to superintendents of the poor power to audit accounts. Such claim is a county charge and subject to the audit of the Board of Supervisors. This action was brought to recover for services rendered by plaintiff, as attorney and counselor, on the retainer of defendants, to conduct certain proceedings in bastardy instituted by them. The defense is put solely on the ground that the superintendents of the poor as an auditing board had ju risdiction to audit and settle the account, and having exercised that power plaintiff was bound by it and could not maintain an action upon his demand. It appeared that the proceedings instituted for defendants by plaintiff were compromised, defendants accepting a gross sum which was more than sufficient to cover all the expenses. Edward H. Neary, applt. in person. D. M. Robertson, for respis. Held, That the provision of the statute that "superintendents of the poor shall audit and settle all accounts of overseers of the poor, justices of the peace, and all other persons, for services relating to the support, relief or transportation of county paupers, and shall from time to time draw on the county treasurer for the amount of the account they shall so audit and settle," does not apply to a case like the present. Plaintiff's claim was not one "relating to the relief, support or transportation of the poor," as that phrase is used in the statute. Defendants, as superintendents of the poor, were authorized to employ counsel to conduct the bastardy proceedings, and having done so became responsible as employers, and whatever expense they thus incurred became a county charge and subject to the audit of the board of supervisors. Judgment of General Term, affirming judgment of County Court dismissing complaint, reversed, and judgment of Justice's Court affirmed. Opinion by Finch, J. All con cur. ASSESSMENT. N. Y. COURT OF APPEALS. In re petition of Mehrbach to vacate assessment. Decided Jan. 20, 1885. The court has power to order the severance of a joint petition under Chap. 338, Laws of 1858, and to grant leave to the petitioners to serve separate petitions, and a proceeding under a separate petition served under such leave must be considered as a continuation of the one originally instituted. Reversing S. C., 19 W. Dig., 465. The petitioner in December, 1873, joined in a general petition, with several other land-owners, to vacate an assessment upon his and the other petitioners' premises. The petition showed the respective ownerships of the lots assessed, and assigned four grounds for the removal of the lien. At that date the assessments were unpaid. While the general proceeding was pending, and before a hearing, the petitioners moved at Special Term for leave to sever their petitions and to serve separate petitions. This motion was granted and the petitioner here filed his petition founded upon his grievance alone. The assessment had in the mean time been paid. The motion was granted, the order requiring that the substituted several petitions should contain the same allegations made in the one on file. No appeal was taken from this order. The Special Term reduced the assessment and the General Term reversed its order, on the ground that the payment of the assessment was a bar to the relief sought in the present proceeding, as no lien existed when the several petitions were filed. Samuel Hand, for applt. Held, That the present proceeding must be considered as a con |