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accepted by one of the executive was well known to the applicant, committee by endorsement there. as it appeared in the by-laws as
The next day the association the basis of the contract, and by mailed to their agent in Montreal which, in his application, he exthree certificates for said appli. pressly agreed to be bound. cant, which were received by H., Secondly : That the deposit of the agent at that place about noon the certificates in the post office, of June 2. In the meantime the under the circumstances stated, applicant had became seriously was not such a waiver of this conill, and expired June 2, between dition as bound the association five and six o'clock, p. m. H., the without the payment of the adagent, was informed of the fact of mission fee by the insured while sickness by one B. on May 30. On he was alive. the 2d of June, at about 2 o'clock Thirdly: That the delivery of p. m., H., at the request of B., the certificates to B. upon his and upon his promise to pay the promise to be responsible for the $18 admission fee required by the payment of the admission fee did by-laws, delivered the certificates not amount to a waiver of the conto him, and he enclosed the certifi- dition upon the performance of cates in an envelope and mailed which the agent was authorized to them to the applicant at La Colle, deliver them, viz., payment of the but they did not arrive at that fee during the lifetime of the applace until after his death. Upon plicant. the same day B. sent the $18 to Fourthly : That the acceptance the agent, and informed him of of the admission fee by the agent the applicant's death, and the after the death of the applicant agent remitted it to the home was unauthorized, and no waiver office. Upon learning these facts of the condition. the association tendered back the Fifthly: That the agent had no money.
authority to deliver the certificates The referee found and decided to an applicant whom he knew to that the applicant became a mem be sick, even upon receipt of the ber, and that the claimant was en admission fee. The contract, and titled to receive the amount the only basis upon which the asclaimed. Exceptions were filed sociation could contract, was for by the receiver, and were sus
the admission of a member in good tained by the Special Term, and health. To hold that an agent the claim disallowed.
could waive such a condition and W. W. Jacobs, for applt.
bind the association, would place Milton Noyes, for respt.
the latter at the mercy of unscruHeld, First : That the payment pulous agents, and defeat the purof the admission fee was a condi- poses of the association. tion precedent to the applcant's Order of Special Term affirmed. becoming a member, and to the Opinion by Childs, J.; Bradley validity of the certificates. This and Baight, JJ., concur.
owner of plaintiff's farm dug a
ditch from a culvert across and N. Y. SUPREME COURT. GENERAL through the low land on his farm, TERM. FIFTH DEPT.
connecting it with defendant's Eli White, respt., v. Merrick ditch. These ditches were conSheldon, applt.
structed to expedite the flow of
water across these lands. They Decided Jan., 1885.
were not constructed at the same The construction and maintenance of con
time, but the action of each pronecting ditches through and across the lands prietor was taken because of the of adjoining owners, for the purpose of action of the others. At first they draining and discharging the surface water did not carry off the surface water into a creek below, and the use and enjoyment thereof for the period of more than from the adjoining lands of the twenty years creates no right or easement | farms, except such as might perby prescription to have the ditches kept colate through the banks of the open for the discharge of the water over
ditch. By cultivation and other the land of the lower proprietor. The draining of the upper lands through the
causes the ditches filled up, and ditch being by the license or permission of were from time to time re-opened. the owner, the use or enjoyment is not | Just previous to the commission by adverse, and consequently cannot ripen defendant of the acts complained into a right by prescription.
of plaintiff deepened and widened Appeal from judgment upon the ditch on his farm the whole verdict and from order denying length thereof about three feet motion for new trial made upon a deep and four in width, whereby case and exceptions.
the flow of water was expedited, Action for damages caused by discharging it in larger quantities obstructing an artificial ditch upon upon defendant's land than it defendant's land, whereby the otherwise would. Defendant purwater was set back upon plaintiff's chased his farm in 1872, and it was land, and also for entering upon occupied by his tenant until 1876, plaintiff's land and opening the when he took possession. In cultibanks of his ditch.
land he ploughed The parties owned adjoining through and over the ditch, leveling farms. Forty years ago the then its banks so that the surface water owner of defendant's farm dug a on either side thereof could not flow ditch across the farm, extending unobstructed into the ditch. After from the line between his and plaintiff deepened his ditch deplaintiff's land in a northeasterly fendant made a small sod dam direction towards a creek, for the near the line of plaintiff's land, purpose of draining off the surface thereby causing the water to set water, the land being swampy. back, etc. The jury were in effect The owners of the lands between instructed, that if the water had defendant's premises and the continued to flow across defendcreek extended this ditch to the ant's land through the ditch for creek, and shortly thereafter the I twenty years he was liable if he
caused the ditch by any means to mere privilege enjoyed by leave of
W. A. Sullivan, for applt. § 108, a.
No person has the right to reHeld, Error. These ditches were lieve his own land from standing constructed and maintained by water, or prevent its accumulation the owners of these lands for their thereon, by discharging it through mutual convenience. They were the ditches or drains upon the allowed to be filled up and remain lands of his neighbor. 4 Lans. 51; in that condition for a time, were 15 Barb., 96; 86 N. Y., 140. again cleaned out at the pleasure Judgment reversed and of the several proprietors, not be- trial granted. ing kept in the same condition for Opinion by Lewis, J.; Barker, any great length of time. There is Haight and Bradley, JJ., concur. nothing in the case showing that the occupants of plaintiff's farm, until this contention arose, made
NEGLIGENCE. any claim of right to use defendant's ditch for the passage of N. Y. SUPREME Court. GENERAL
TERM. THIRD DEPT. water accumulating on their farm. It was a mere user by implied
Hugh Reilly, respt., v. The Hudlicense. The draining of plaintiff's son River Bridge Co., applt. land through defendant's ditch
Decided Nov., 1884. being by the license or permission of the owner thereof, the use or Plaintiff was sailing in a yacht when he sig. enjoyment was not adverse, and nalled defendants that he wished to pass therefore could not ripen into a
their draw. He was familiar with the sig
nals given when the draw was about to right by prescription. 84 N. Y.,
open. He heard these signals (although 44 ; 11 Gray, 148; 16 W. Dig., they were not addressed to him) when very 353.
near the bridge, but far to the east of the
draw. If the user is of such a character
Proceeding on a westerly tack
nearly parallel to the bridge, and in a posiand the circumstances attending it
tion where he could not see how far the are such as to show that it was a draw had opened, he found on reaching it
that it had moved but a few feet, and that on it to pass through the eastern passage was impossible. In attempting to division of the draw, which was go about he struck a dock which connected
100 feet wide. He was, on this the piers supporting the draw when swung, and was injured. He recovered in this ac
tack, very near the bridge and tion. Held, That the question of contribu- almost parallel to it. He could tory negligence was for the jury.
not see to what extent the draw Defendant was created by Ch. was opening. Arriving there he 146, Laws of 1856. This act pro- found it had not opened far vides that vessels shall have pref- enough for his boat
his boat to pass erence in passage over cars, and through, although time enough that the draw shall be opened had elapsed to open it entirely. promptly on signal. The action is The wind was strong; the boat to recover for injuries caused, as moved fast. Plaintiff, who was alleged, by defendant's negligence. steering, endeavored to go about Plaintiff was sailing with a friend in the right angle made by the in a yacht on the river above this draw and the north end of the bridge, which he desired to pass. dock above mentioned. He struck The bridge ran east and west. The this dock and was injured. Plaindraw was worked by steam, and tiff recovered below. swung to the south when it open Hale & Bulkley, for applt. ed. The two points on which its Andrew Hamilton, for respt. ends rested when fully swung were Held, That the question of constone piers. The pivot on which tributory negligence was properly it swung was a stone pier, and left to the jury. Plaintiff heard these three piers were connected the signal and knew what it by a dock filled in with stone, run meant. It was his duty to be obning north and south in the river, servant.
servant. Defendant, by its acts, in length some 200 feet. Plaintiff, spoke a language not addressed to by loud cries and whistling, at plaintiff, but understood by him, tracted the attention of defend- and its meaning was that the draw ant's servants on the bridge and would open in its customary way signalled that he wished to go and time. He was then far to the through. After waiting a long left of the draw and looking west; time, he testified 15 minutes, a he could see the draw had begun signal was made (though not to to open, but could not see to what him) which was the one, as plain-extent. Nor conld he see this untiff knew from experience, usually til he had reached the easterly made upon opening the draw. It pier, on which, when closed, the consisted in blowing a whistle draw rested. All his experience three times and hoisting a red told him that it would be wide basket. After this was done the enough open when he reached it draw commonly opened in two to allow him to pass. It was not. minutes. Plaintiff was tacking We think the jury had grounds about at this time. He made a for drawing the inference from all tack to the westward, intending the facts that plaintiff was not
negligent, and that defendant had serve a copy of the injunction. invited him to proceed.
Upon the hearing of this motion Judgment affirmed, with costs. the plaintiff's attorney made an
Opinion by Landon, J.; Learn- affidavit in which he stated that ed, P. J., and Bockes, J., concur. he was informed that the plain
tiff's residence then was 317 East
79th St., N. Y. City, and some ATTORNEYS.
dispute having arisen as to his N. Y. SUPREME COURT. GENERAL statement, a reference was ordered TERM. FIRST DEPT.
to take proof of the whereabouts
of the plaintiff. Upon such refWilliam C. Baur, applt., v. erence it appeared that the last John F. Betz, respt.
time the plaintiff was seen in Decided Jan. 9, 1885.
the City of New York was in
company with his attorney, on It is the duty of an attorney, as an officer of
the corner of Forty-sixth street the Court, to state fairly and candidly his knowledge of his client's whereabouts when and Fifth avenue; that he went called upon to do so by the opposite party from that place to a hotel fn Jerto an action to enable him to serve a copy sey City, which he left the follow. of an injunction obtained in such action, ing day, from which time all trace service of which is important for the pro
of bis wbereabouts was lost. tection of his rights, and if such attorney fails to make such statement, he may be
Hamilton Odell, for applt. charged with the costs and expenses of a S. Untermeyer, for respt. reference to ascertain the whereabouts of
Held, That while it might be his client.
true that at the time of his client's Appeal from an order confirm- departure the attorney did not ing the report of a referee and know in what direction he went, charging the costs and expenses and that at the time of his examof the reference upon the plaintiff ination he did not know to what and his attorney.
place his client had gone or where This action was commenced for he was staying, still the relations the dissolution of a co-partnership between the two and the proceedand an accounting. The defend ings between them rendered this ant was appointed receiver of the exceedingly improbable, and juspartnership effects, and an injunc- tified the conclusion that the attion was granted restraining the torney did not respond to the applaintiff and his attorney from in- plication made in reference to the terfering with such effects. An whereabouts of the plaintiff as he order was also procured requiring should have done, and as he was the plaintiff's attorney to show bound to do as an officer of the cause why he should not disclose Court. That the service of the the then present abode or resi- injunction upon plaintiff was very dence of the plaintiff to the attor- important to defendant's interests, ney for the defendant, the object and that it was just as much the of which was to enable him to l duty of plaintiff's attorney to aid