M. W. Cook, for applt. Foster & Wentworth, for deft. Francis T. McGill and Edward McCarthy, for Tone.

Held, That from the allegations it seems proper that the petitioner should be let into the litigation, with a view, among other things, of showing that the foreclosure and sale are unnecessary, and with a view of looking after his interests in connection with the bonds sold by him to S. & D.

Order affirmed.

Opinion by Lewis, J.; Barker, Bradley and Haight, JJ., concur.

MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

Richard V. White, respt., v. The Twenty-third Street RR. Co., applt.

Decided Feb., 1885.

If a passenger on a street railroad is ejected from the car and assaulted by the driver when the fare has been put in the box (there being no conductor), the company are liable, and also for causing the arrest of such passenger.

Appeal from judgment in favor of plaintiff entered on verdict.

Plaintiff on Aug. 13, 1883, entered the car of defendant and put the fare for himself and friend in the box kept for that purpose, there being no conductor. Plaintiff was ejected from the car by the driver and assaulted. A policeman then came up and the driver made a charge against the two men for not paying their fare, and told the officer

to arrest them. The inspector. of the railway company then appeared and told the driver to go on with the car, and he would go to the station house with the prisoners and policeman, and he did so. The sergeant refused to receive any complaint from the inspector because he was not present at the transaction on the car; and the prisoners were locked up until the driver came, which was in about an hour and a half, and the driver then made a charge of not paying fare and for assaulting him, which the sergeant forthwith dismissed and discharged them. H. Metzinger, for respt. Robinson, Scribner & Bright, for applt.

Held, That as the plaintiff had paid his fare the ejection of the plaintiff from the car was unjustifiable, and defendant was liable for the acts of its driver. 90 N. Y., 588.

Defendant is also liable for the arrest. The arrest was ordered by the driver, and assumed by the inspector.

"It matters not that he exceeded the power conferred upon him by his principal, and that he did an act which the principal was not authorized to do, so long as he acted in the line of his duty in being engaged in the service of the defendant, attempted to perform a duty pertaining, or which he believed to pertain to that service." 90 N. Y., 77.

Judgment affirmed.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., con

cur.

RAILROADS. PASSENGERS.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

John B. Loomis, respt., v. Hugh J. Jewett, receiver, applt.

Decided Jan., 1885.

A passenger who surrenders his ticket and receives a stop over check permitting him to stop over only at certain stations desig

nated, cannot, after stopping at a place not specified, resume his journey on another train and insist upon being carried, upon the faith of the check, to the place of original destination.

Whether a farm house situated about thirty rods distant on another highway is, in a dark night and when its vicinity is unknown to the passenger, a near dwelling house within the meaning of the statute authorizing the conductor, in case a pas

senger refuses to pay his fare, to put him off at any usual stopping place or near any dwelling house, as the conductor shall elect," is a question of fact for the jury under proper instructions from the court.

Appeal from judgment entered upon a verdict, and from order denying a new trial on a case and exceptions.

Action to recover damages for a wrongful ejection by the conductor of defendant's passenger train. Plaintiff purchased a ticket from Rochester to Hornellsville; when he arrived at C. station he told the conductor he wished to stop over, and thereupon the conductor took up his ticket and gave him a stop over check, which purported to give the passenger a right to stop over only at the stations named thereon. The next day plaintiff proceeded to Painted Post, the next to Addison, and the next to Canisteo, which was not a stop over station. After leaving Addison the

Plaintiff testified that the night was very dark and that he was not put off from the train at any usual stopping place, or near any dwelling house; that there was no house or crossing near the place where he was put off. The conductor testified that there was a farm house twenty-five rods from the crossing and thirty rods from the train, which was five rods from the crossing; and he was corroborated by other witnesses. The Court submitted the question to the jury with proper instructions, who found for the plaintiff.

Held, That under all the circumstances of the case the question was properly submitted to the jury. That the Court could not say, as a matter of law, that a dwelling house twenty-five or thirty rods distant upon another highway is, in a dark night and where the vicinity is unknown to the passenger, a near dwelling house, within the meaning of the statute authorizing the conductor,

It is the duty of the owner of land, when he

discovers cattle trespassing, to drive them out, so as to prevent all avoidable injury, and if he neglects to do so he cannot recover for damage subsequently committed. The measure of the damages is the value of the grass destroyed in the condition it was in at the time of the injury, not the value of the hay. And, therefore, it is not proper to ask the plaintiff what rowen or second crop hay was worth that fall per ton.

Appeal from judgment of County Court, affirming judgment of a justice of the peace.

Action to recover damages for a trespass alleged to have been committed upon plaintiff's premises by defendant's cattle in breaking into his meadow after haying and treading down the after-growth. Plaintiff testified that twelve or sixteen of defendant's cattle broke into his field about ten or eleven o'clock in the forenoon; that he stood in the highway and saw them break in from the highway; that his son and another person was with him; that they were in the lot while

plaintiff was eating his dinner, and were taken away at three or four o'clock. "I told my son he should not run after the cattle, that it was no use to drive them out."

Plaintiff further testified that he intended to mow this meadow for a second crop; that there were five acres damaged; that it had commenced to head out and was thick when the cattle got in, and where they trod it the grass was twisted That this and he did not cut it. five acres, if it had not been injured by defendant's cattle, might have cut six tons of rowen or hay.

Plaintiff was then asked by his counsel what rowen or second crop hay was worth that fall per ton, which was objected to by defendant on the ground, among others, that it was not the proper measure of damages, as it included all the grass and harvesting, and the objection was sustained. Plaintiff claims that this ruling was error, and relies on it to reverse the judgment. The jury rendered a verdict for twenty-four cents damages.

Nash & Lincoln, for applt.
W. G. Laidlaw, for respt.

Held, That it was the duty of plaintiff, when he discovered the cattle trespassing upon his land, to drive them out, so as to prevent all avoidable injury, and he cannot recover for damage done by the cattle which the least effort on his part would have prevented, and that it is reasonable to assume that the damages, if any beyond nominal, were were committed after plaintiff had neglected to drive the cattle out. 28 Hun, 363.

JJ., concur.

EXTRA ALLOWANCE.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

James Mingay et al., applts., v. The Holly Mfg. Co., impld., respt.

Decided Nov., 1884.

The water commissioners of a village made a contract with defendants for certain machinery to be paid for by the village on their acceptance of it, the title to remain in defendant until full payment. This has not been made. Plaintiffs, as tax payers, by this action sought to restrain the performance of the contract as ultra vires, but were defeated, and defendants obtained

an extra allowance based on the contract price. Held, Error; that the true basis for such allowance was the difference be

tween the contract price and the value of the machinery to defendants after it had been thrown on their hands by the failure of the village to take it.

Appeal from order granting an extra allowance of $840.

Plaintiffs, as tax payers, brought an action against defendant, the village of Saratoga Springs and its Board of Water Commissioners, to restrain the performance of a contract made by the Commissioners with the Holly Co. Under it that company was to put up certain pumping machinery and do a

Vol. 20.-No. 22a.

the extra allowance appealed from. John R. Putnam, for applts. Esek Cowen, for respt.

Held, That the allowance was improperly granted, no basis appearing upon which to grant it.

The "subject matter involved " as to the Holly Co. was the value to them of the contract they had performed. By the terms of that contract the title to the machinery was not to pass to the village until full payment. This had not been made. This action exposed the Holly Co. to the risk of losing the price and being compelled to retain the machinery. The value of their contract therefore was not $31,000, the basis assumed for the allowance, but it was the difference between the contract price and the value of the machinery to be sold thereafter to some party other than the village. What that difference is does not appear. 92 N. Y., 401; 28 Hun, 356; 29 id, 475; 63 N. Y., 176.

Order reversed, without prejudice to a renewal of the motion. Opinion by Landon, J.; Learned, P. J., concurs.

SUNDAY LAW.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

it is necessary to take into consideration the other sections of the code in respect to the same subject, and which are plainly explan

Decided Feb., 1885.

Defendant and two other persons were engaged in playing ball on Sunday, on private grounds, which were enclosed on all sides by a high board fence. They made no noise nor disturbed the peace. Held, That it was not a violation of $265 of the Penal Code.

The defendant appeals from a judgment of conviction made against him. The facts sufficiently appear from the opinion.

"The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified which are serious interferences of the repose and religious liberty of the community."

Section 262 is as follows:

"The following acts, as explained in the next six sections, are those forbidden to be done on

Michael J. Kelly, for applt. Held, That this case involves no disputed fact. Sec. 265 of the penal code provides that all shooting, hunting, fishing, playing, horse racing, gaming, or other public sports, exercises, pastimes, or shows upon the first day of the week, and all noise disturbing the peace on that day are prohibited." Three men, defendant being one of them, on the first day of the week were found by a policeman playing base ball on private grounds, with the consent of the owner. "Defendant pitched the ball to one of the other two." "The defendant and others did not make any noise." There was "nothing other than this ball playing which was a violation of any law."

While the words of the section prohibit all "playing" on Sunday,

in a work of necessity or charity: 1. Servile labor.

2. Public sports and shows. 3. Traders, manufacturers and mechanical employments. 4. Public traffic. 5. Serving process."

From the three sections it is manifest that the thing done must be a serious interruption of the repose of the community on Sunday. The thing prohibited must be to a greater or less extent public. The proof in the present case fails to make out an offense. The grounds were private. The defendant was not even a trespasser, as his entry was by permission of the owner. There was no noise; there was no assembling of persons beyond the three persons, and the offence was made up entirely by one person, the defendant, throwing the ball to another person to catch. If the third person was a party to