in the city early in the morning; it is com- petent for the defence to show, by the tes- timony of a witness who walked and timed the distance, that the prisoner could not have walked from the place described by the people's witnesses so as to be at the places mentioned in the city at the time testified to by his witnesses.-Id.
MUTUAL BENEFIT SOCIETIES.
1. Defendant was incorporated under Ch. 267, Laws of 1875. It issued a certificate of membership to one H. payable upon death, one fourth to H.'s wife and three-fourths to plaintiff Massey, not a relative. The cer- tificate of incorporation of defendant did not state as an object the payment of moneys upon the death of a member the by-laws, which by the act defendant had power to make, provided for such payments to members' families or their assigns, and for the payment of benefits to beneficiaries designated by deceased members.
Held, That plaintiff Massey, though not a member of H.'s family, could recover, and that the contract was not one beyond the powers of defendant.-Massey et al. v. The Mutual Relief Soc., 280.
2. The by-laws of a mutual benefit associ- ation provided that any person in good health, &c., may become a member upon approval of the executive committee, and upon payment of the prescribed admission fee. An application was approved and certificates were issued and mailed to an agent, who, knowing that the applicant had become seriously ill, delivered them to a third person, B., upon his promise to pay the admission fee, and the latter mailed them to the applicant, who died before the mail arrived. B. forthwith forwarded the amount of the admission fee to the agent, with information of the death, who re- mitted it to the home office. Upon learn- ing these facts, the association tendered back the money. Held, That the agent had no authority to waive the essential conditions requisite to membership, and his acts were not binding on the association, and the applicant was not a member at the time of his death.-The People v. Mutual Benefit Associates, 546.
NATIONAL BANKS.
1. All property and rights held by a State bank before organizing as a National bank continue to be vested in it under its new status. As between it and those who have contracted with it, it retains its identity. Defendants executed to the City Bank a guaranty of payment of advances to be made to one W., which guaranty was re- cognized by defendants after the bank had been converted into a National bank. W., having afterwards failed, Held, That de- fendants were liable on the guaranty.-The City Natl. Bk. of Poughkeepsie v, Phelps, 87,
1. Defendant furnished a team and wagon to one M. under an arrangement that M. was to work them and receive one-fourth of the proceeds, and defendant to receive the balance. Plaintiff was run over and in- jured by the team while M. was driving them. Held, That as to third persons de- fendant and M. each became the agent of the other in the prosecution of the common enterprise and liable for his omissions and faults in regard thereto.-Stroher v. Elt- ing, 1.
2. When a wharf has been maintained in its position for such a length of time and un- der such circumstances as to warrant the imputation of negligence to its owners in failing to remove an unevenness in the bot- tom alongside of such wharf, which causes an injury to a vessel lawfully coming thereto, the owners of the wharf are liable for such injury.—Barber v. Abendroth Bros., 7.
3. It is no error to charge the jury that if the brakeman whose duty it was to notify pas- sengers of the movements of the train as- sured plaintiff it was safe for her to alight she was excused from the negligence of getting off the moving train. And the ad- ditional charge that if plaintiff believed it was imprudent for her to alight, and her judgment was the true one, she should bave remained on the train, was certainly as favorable to defendant as it could properly ask.-Abbey v The N Y. C. & H. RR. Co., 37.
4. Plaintiff, who was employed by one G., was injured by the fall of some boxes while engaged in unloading a vessel. To obtain power, G. leased of defendants an engine and boiler, in charge of their engineer, who worked the same under the direction of two of G.'s men. The machinery was per- fect, and the engineer was not shown to be incompetent. It was claimed that the boxes fell because they were lowered too fast and stopped suddenly. Held, That de- fendants were not liable.-Coyle v. Pierre- pont et al., 91.
5. Plaintiff was riding on the front platform of one of defendant's cars without objec- tion, and on the car stopping stepped down on the step to let some passengers in. He testified that as he was stepping up again the car gave a sudden movement and pulled up and he was thrown out sideways. It was not shown that the driver started his horses in any unusual or negligent manner. Held, That there was no evidence of negli- gence on defendant's part.-Hayes v. The 42d St. & Grand St. Ferry RR. Co., 135.
6. Where a passenger, in the exercise of ordinary care and observation, was induced to believe, by the announcement of the station and to change cars, and by appear-
ances created by the acts of the employees, that the train had come to a full stop for the discharge of passengers (though it had not, in fact), and proceeded to the platform, in the dark, for the purpose of alighting, but was thrown therefrom by the sudden starting or violent jerking of the train, Held, That the case was properly submitted to the jury, to determine whether negligence existed on the part of defendant, and whether plaintiff was free from negligence under the circumstances of the case.- Bartholomew v. The N. Y. C. & H. R. RR. Co., 166.
7. Plaintiff, who was employed by defendant, started on a dark night with a lantern to go to a privy which projected over a stream and which he was required to and was for a long time accustomed to use. The lan- tern went out and in the darkness he missed the door and fell over the wall, breaking his leg. Held, That he could not recover without proof that he had no knowledge of the dangers and risks attending the use of the privy.-Kesley v. The Sanderson Bros. Steel Co., 192.
8. Where it appears that the whistle was not blown until the train was very near the crossing, and the evidence is conflicting as to whether the bell was rung, the question of defendant's negligence is one for the jury.-Burgess v. The N. Y. C. & H. R. RR. Co., 249.
9. Deceased was riding by invitation with friends, and the driver, on approaching the crossing, looked both ways and saw no train, and while looking in the opposite direction heard the whistle blow and the train was upon them. The view of the track was obstructed from the road for some distance and from a point 30 feet from the crossing it was only visible for about 300 feet. The train was travelling 50 miles an hour. It did not appear what deceased was doing. Held, That the question of contributory negligence was for the jury.—Id.
10. Where snow eight inches deep had lain on the walk two weeks, and then thawed and froze again, and the ice thus resulting con- tinued nearly a week, and plaintiff slipped on it at night and was hurt, Held, That the jury were warranted in finding the vil- lage authorities chargeable with notice, and negligent.-Chapman v. The Village of Silver Creek, 253.
11. P. went to defendant's office to ask the superintendent for work; not finding him he went into another room of the factory, and was there killed by a descending eleva- tor. Held, on suit by P.'s personal repre- sentative, that it was error to leave the question to the jury whether deceased was lawfully in the factory, and it was error to charge the jury that deceased had a right to look for the superintendent wherever he Vol. 20-No. 26b.
could be found so long as he violated no established rule of the company.-Pierce v. The Rawson M'f'g. Co., 256.
12. Plaintiff, with his team, approached de- fendant's tracks in the evening, and stop- ped, but saw or heard no train, and a person standing where defendant usually kept a flagman waved his lantern and called to plaintiff to cross the tracks, and plaintiff in crossing was injured by defendant's engine. Held, That evidence as to the actions of the person with the lantern was proper, although plaintiff could not identify him as an em- ployee of defendant.- Wagner v. The N. Y., L. E. & W. RR. Co., 277.
13. A loaded coal wagon of defendant's was going up a steep icy street in the daytime, when a horse cast a shoe. The driver drew the wagon out to the side of the street, blocked its wheels, went to a blacksmith shop with the team and was gone 15 min- utes. Plaintiff in the meantime drove up the street, saw the coal wagon and also a wagon loaded with iron coming down. Seeing that he could not reach the coal wagon before the iron wagon did he turned out and stopped about 40 feet directly be- hind the coal wagon. The ironworks wagon, on reaching the coal wagon, slid over and struck it; the coal wagon slid down upon plaintiff's coach and team and damaged, them. Held, That defendants were justified in leaving their wagon prop- erly blocked in the street under the circum- stances, and that plaintiff could not re- cover.-Newcomb v. Van Zile et al., 278.
14. Plaintiff, aged 12, was hired by defend- ants, who manufactured a kind of fuel from coal dust and pitch, to carry water to the workmen. One Taylor was foreman, and he directed plaintiff to attend a shoot which brought down pitch. In order to do this plaintiff was compelled to stand on a plat- form about three feet wide, raised twelve feet from the ground, and without any rail- ing. Through the whole length of this platform and about two feet above it ran a shaft which revolved outward. The out- side edge of the platform was not more than ten feet from the shaft. This turned cog-wheels which made a good deal of noise. and which were greasy. The pitch shoot was near the cog wheels and back of them. From time to time it was necessary to open and close the shoot; to open it the boy must lean over the cog-wheels, raise a slide with an iron bar, and put in a peg; and similarly to close it he must lean over and drive down the slide with a hammer. While waiting for orders to open or close it his back must be to the shaft. The cog-wheels had been covered by a box which was not there when the accident occurred. On that day a strong wind was blowing. This wind or the draft made by the revolving cogs drew in plaintiff's coat-tail as he stood with his back to the machinery; he was thrown
twice around the shaft and very seriously injured. Held, That a non-suit was error, and that the questions of negligence and of contributory negligence were for the jury.-Miller v. Coykendall et al., 299.
15. Defendant's passenger car stopped at a regular station on their road, and the an- nouncement of "Ten minutes for refresh- ments was made. While the car was at rest plaintiff rose from her seat to adjust her wrap, when the car was suddenly moved with such violence that she was thrown against the seat and seriously in- jured. Held, That there was sufficient evi- dence of defendant's negligence to send the case to the jury, inasmuch as there could be no imputation of prima facie negligence to plaintiff.-Glidden v. The N. Y. C. & H. R. RR. Co., 313.
16. Plaintiff when about to enter a train at one of defendant's stations was struck and injured by a mail bag thrown from the postal car of the train while in motion. It appeared that the postal clerk had habit- ually so thrown the bags upon the platform of the station for a long time with the knowledge of defendant's employees and without objection being made. * Held, That plaintiff was entitled to recover.-Carpen- ter v. The B. & A. RR. Co., 325.
17. Plaintiff, who wished to see one of the defendants on business, went to his store, and in looking for him saw an open door- way, which showed only the floor of the elevator well, which was like the store floor; he entered, looked through a glass partition into the store, walked on and fell through a hatchway in front of him, and was injured. He testified that he could have seen the hatchway had he looked. There was no notice or sign on the door. Held, That the case should have been sub- mitted to the jury.—McRickard v. Flint et al., 328.
not be held to the most rigid accountability for his actions.-Bucher v. The N. Y. Č. & H. R. RR. Co., 384.
20. 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 lot the lessee acted as an in- dependent contractor and not as the servant or agent of the lessor.- Ferguson v. Hubbell, 386.
21. In an action to recover damages to plain- tiff's real estate, caused by an explosion of defendant's works, the plaintiff should not be required to furnish a bill of particulars. -Muller v. The Bush & Denslow Mƒ`g Co., 390.
22. Where there is any evidence of defend- ant's negligence and of absence of contrib- utory negligence on the part of plaintiff, the case should be submitted to the jury. Pyers v. The N. Y. & N. E. RR. Co., 394.
23. In an action to recover damages for the death of an employee of defendant caused by the latter's negligence, it is not error to refuse to charge that in view of the services the deceased was employed to perform, viz., repairing cars, defendant was not bound to furnish sound or perfect cars, or that plain- tiff could not recover unless deceased was injured through gross carelessness or wilful wrong of defendant, or through some risk not incident to his employment.-Id.
24. Plaintiff, while engaged in uncoupling cars in defendant's employ, caught his foot in a frog, and signalled the engineer to stop, but the engine, being defective, could not be stopped in time, and plaintiff was run over and lost his leg. There was evi- dence that plaintiff's superior had promised that another engine should be furnished to do the work. Held, That the questions of negligence and contributory negligence were properly submitted to the jury, and that the evidence warranted a finding that the injury was caused by the failure of defendant to furnish suitable machinery.- Bajus v. The Syracuse, B. & N. Y. RR. Co., 399
25. In such an action evidence as to the condi- tion of the engine before and about the time of the injury is admissible, but evi- dence as to its subsequent condition is not. -Id.
26. The absence of contributory negligence on plaintiff's part need not be alleged in the complaint; that fact is involved in the alle- gation that the injury was caused by defend- ant's negligence.-Lee v. The Troy Citizens' Gaslight Co., 413.
27. Requests to charge which assume that
there is evidence from which the jury may
infer certain facts, when in fact there is no such evidence, are properly refused.—Id.
28. In an action for the death of a horse caused by a gas leak, it appeared that defend- ant's workmen had stopped a leak there an hour or so before; that plaintiff closed the stable, and noticing a smell of gas exam- ined the meter. The Court refused to charge that if plaintiff had reason to believe gas was escaping, knew the danger and left the horse there without providing for the danger, thinking the escape of gas was not sufficient to do any damage, he could not recover. Held, No error; that under the circumstances negligence was not an in- evitable and necessary inference.—Id.
29. Plaintiff's intestate, while driving on a dark night on a street alongside of the tow- ing path of the canal, drove too far to the south so that the wagon was partly on the tow path and partly on the retaining wall built to protect the embankment leading to the canal bridge, and the wheels catching upon the wall, which rose as it approached the bridge, the wagon was overturned and intestate was drowned. No one saw the accident. Deceased was driving on a trot and it was not shown that he was unskil- ful, that the horses were unsafe or the wagon and harness out of repair. Held, That a refusal to nonsuit was proper; that whether defendant's failure to maintain a barrier on its own land between the street and the wall was negligence was a question of fact for the jury, and that the facts were sufficient to authorize a finding that de- ceased was not guilty of contributory neg- ligence. Veeder v. The Village of Little Falls, 445.
30. Defendants conducted a bluestone yard, and employed S. He had charge of shift- ing stone, work in the mill and with the derrick. He had not power to hire or dis- charge men, and was not general superin- tendent. Owing to alleged improper orders given by S. while shifting stone with the derrick, plaintiff was injured. Held, That plaintiff and S. were co-servants, and that plaintiff could not recover against defend- ants, the masters.-Scott v. Sweeney et al., 520.
31. Plaintiff was sailing in a yacht when he signalled defendants that he wished to pass their draw. He was familiar with the sig- nals given when the draw was about to open. He heard these signals (although they were not addressed to him) when very near the bridge, but far to the east of the draw. Proceeding on a westerly tack nearly parallel to the bridge, and in a posi- tion where he could not see how far the draw had opened, he found on reaching it that it had moved but a few feet, and that passage was impossible. In attempting to go about he struck a dock which connected the piers supporting the draw when swung,
and was injured. He recovered in this action. Held, That the question of con- tributory negligence was for the jury.- Reilly v. The Hudson River Bridge Co., 549.
32 Where plaintiff drove upon a bridge with a heavy load, wider than the bridge, thereby pushing out braces necessary to its sup- port, and the bridge fell, Held, That he was guilty of negligence, and could not recover for damages sustained by such fall. -Lawson v. The Town of Woodstock, 570. See ABATEMENT; AGENCY, 1; COMMON CAR- RIER, 5; EVIDENCE, 35, 46; MARRIED WOMEN; MASTER AND SERVANT; MUNI- CIPAL CORPORATIONS; PLEADING, 8; RAIL ROADS, 6, 7, 9-11, 18, 19.
1. A promissory note made by defendant, payable to his wife or bearer, for value re- ceived, Held, To be valid in the hands of a third party; and the wife being dead, the husband is incompetent to prove that the note was given without consideration.- Benedict v. Driggs, 29.
2. A promissory note not made payable to the payee's order, or to bearer, is not nego- tiable.-Roe v. Hallett, 34.
3. One who signs his name on the back of a non-negotiable note, before delivery, can be held as a maker of the note or as a guarantor of its payment.-Id.
4. Where a material alteration is apparent upon the face of a promissory note, evi- dence in explanation thereof must be given to entitle it to be put in evidence against defendant's objection -Evans v. Deming,
5. Therefore, where the note (non-negotiable) produced showed an alteration in its date, and the insertion of figures in the body of the note expressing a larger sum than that expressed in the words immediately follow- ing, and the larger sum was claimed, Held, That the alterations were material, and should have been explained before receiving the note in evidence, notwithstanding the written words would control.-Id.
6. Plaintiff having claimed payment of the larger sum and demanded it in her com- plaint, and thus rendered a trial and judi- cial determination necessary, it was too late to waive that sum and consent to take judgment for the smaller sum.-Id.
7. An offer by the maker before suit brought to pay the smaller sum, but without at- tention being called to the alteration in the date, is no waiver of the alterations made. -Id.
8. The defendant, Eda Rubino, made her note for $5,000 chargeable upon her sepa-
rate estate, and delivered the same to her husband, Eugene Rubino, solely for his accommodation and without any other consideration. Her husband endorsed said note and delivered the same to plaintiffs, who were stock brokers and who agreed to hold the same as margin or security, and to purchase, sell and carry stocks, &c., for said Eugene Rubino until said security or margin should be exhausted, and not to dispose of same until after they had de- manded increased security, or that said Rubino should take the stocks held for him at their market price. Subsequently plain- tiffs sold the stocks, &c., held by them for Rubino without waiting for the security thus given to be exhausted, or giving him notice to increase it, and closed his account, and brought this suit upon the note to col- lect a balance alleged to be due them. Held, That there was a failure of consideration of the note and the action could not be maintained. --Raven et al. v. Rubino et al., 124.
9. The question whether a note was paid and extinguished, or merely extended, by the giving of other and successive notes, the preceding one being given up in each in- stance, Held, Under the particular facts of the case to depend upon the intention of the parties and to be a question for the jury.-The Bank of Hamilton v. Mudgett,
10. It seems that the certification of a check will not operate as an appropriation of the funds by the person procuring such certifi- cation when, by so doing, he does not in- tend to make the check his property, but only to place funds upon which it is drawn in such a condition that they would be subordinate to the result of a pending action.-Zapp v. Miller, 321.
11. An administrator transferred notes be- longing to the estate to plaintiffs to secure them as sureties on his bond and also for a judgment against the estate which they paid. Held, That the transfer in no man-
worked a devastavit, and therefore that plaintiffs' title was good; that defend- ant, who defends solely as maker of the note, could not raise the question of mis- application.-Rogers et al. v. Squires, 499. 12. Defendant, who was one of the heirs, transferred to the administrator by deed all his interest in the real estate and also all his right to the personal property, includ- ing his distributive share. Held, That this did not discharge him from liability on his notes, in the absence of an assumption by the administrator of their payment.―ld. 13. Defendant, sued upon his note, set up a lack of consideration. He testified that he hired certain premises for a certain sum, a further sum to be paid if he made any money during his occupation. That he made no money. That, at the end of the
term, defendant threatened to injure his credit with a friend unless he gave a note for the further amount; that under these circumstances the note was given. Held, That the note was not given in settlement of a disputed claim, and that the question of consideration should have been sub- mitted to the jury.-Farnham et al. v. Connors, 502.
14. Where a husband, before the married woman's statute of 1848, borrowed money from his wife and gave her a nogotiable promissory note for its payment, and in 1866, in consideration of its surrender, he executed a negotiable note to his daughter for the same amount, and afterwards gave her another in exchange therefor, Held, That the husband had waived his previous marital right to the money, and the note was founded on a sufficient consideration.- Smith v. Stanton, 523.
See ATTACHMENT, 10; BANKS, 1-5; CON- TRACT, 18; EVIDENCE, 1, 2, 51; JOINT DEBTORS; PLEADING, 5, 12.
See PRACTICE, 6, 16–18; REPLEVIN, 1,
1. The number of water meters required by the city was discretionary with the Com- missioner of Public Works under Ch. 383, Laws of 1870, and he had authority to bind the city by accepting those delivered under the Navarro contract.-Baird v. The Mayor, &c., of N. Y., 100.
2. Under a contract between the city and a con tractor, which provides that the latter shall furnish satisfactory proof that all persons who have done work or furnished materials, and have given notice to the Commissioner of Public Works before or within ten days after completion of the work that a balance is due them, have been fully paid or secured, and in the absence of such proof that a sufficient sum shall be retained to pay such claims, the notices of lien may be given before the completion of the con- tract, and no other proof is necessary to accompany them except as to the amount due the claimants.-The Mechanics Traders' Nat'l Bk. v. The Mayor, &c., of N. Y., et al., 247.
3. Upon such a contract the city holds the money only as a trustee and is not liable to pay interest until after judgment is render- ed against it.-Id.
See CORPORATIONS, 6; DEEDS, 3-6; ME- CHANICS' LIEN, 2; OFFICE, 5-8; PER- JURY, 4.
1. The owner of a city lot may fill up his lot and build upon it, and the surface water
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