Imágenes de páginas

twice around the shaft and very seriously not be held to the most rigid accountability
injured. Held, That a pon-suit was error, for his actions.-Bucher v. The N. Y. Ć.
and that the questions of negligence and & H. R. RR. Co., 384.
of contributory negligence were for the
jury.- Miller v. Coykendall et al., 299. 20. Where one leased land to another on

shares, with the proviso that the lessor
15. Defendant's passenger car stopped at a would pay the lessee for clearing a part of

regular station on their road, and the an the same, Held, That the lessor was not
nouncement of “Ten minutes for refresh liable for the negligence of the lessee ; that
ments” was made. While the car was at in clearing the lot the lessee acted as an in-
rest plaintiff rose from her seat to adjust dependent contractor and not as the servant
her wrap, when the car was suddenly or agent of the lessor.- Ferguson v. Hubbell,
moved with such violence that she was 386.
thrown against the seat and seriously in-
jured. Held, That there was sufficient evi-

21. In an action to recover damages to plain.
dence of defendant's negligence to send the

tiff's real estate, caused by an explosion of
case to the jury, inasmuch as there could be

defendant's works, the plaintiff should not
no imputation of prima facie negligence to

be required to furnish a bill of particulars.
plaintiff.-Glidden v. The N. Y. . & H.

- Muller v. The Bush & Denslow Mi'g Co.,
R. RR. Co., 313.

16. Plaintiff when about to enter a train at

22. Where there is any evidence of defend-

ant's negligence and of absence of contrib-
one of defendant's stations was struck and
injured by a mail bag thrown from the

utory negligence on the part of plaintiff,

the case should be submitted to the jury. -
postal car of the train while in motion. It

Pyers v. The N. Y. & N. E. RR. Co., 394.
appeared that the postal clerk had habit-
ually so thrown the bags upon the platform 23. In an action to recover damages for the
of the station for a long time with the

death of an employee of defendant caused
knowledge of defendant's employees and

by the latter's negligence, it is not error to
without objection being made. "Held, That
plaintiff was entitled to recover.- Carpen-

refuse to charge ihat in view of the services

the deceased was employed to perform, viz.,
ter v. The B. & A. RR. Co., 325.

repairing cars, defendant was not bound to
17. Plaintiff, who wished to see one of the

furnish sound or perfect cars, or that plain-
defendants on business, went to his store,

tiff could not recover unless deceased was
and in looking for him saw an open door-

injured through gross carelessness or wilful
way, which showed only the floor of the

wrong of defendant, or through some risk

not incident to his employment.-Id.
elevator well, which was like the store
floor ; he entered, looked through a glass 24. Plaintiff, while engaged in uncoupling
partition into the store, walked on and fell

cars in defendant's employ, caught his foot
through a hatehway in front of him, and
was injured. He testified that he could

in a frog, and signalled the engineer to
have seen the hatchway had he looked.

stop, but the engine, being defective, could
There was no notice or sign on the door.

not be stopped in time, and plaintiff was
Held, That the case should have been sub-

run over and lost his leg. There was evi-
mitted to the jury.-McRickard v. Flint et

dence that plaintiff's superior had promised

that another engine should be furnished to
al., 328.

do the work. Held, That the questions of
18. In an action to recover damages for per-

negligence and contributory negligence
sonal injuries sustained by reason of the

were properly submitted to the jury, and
negligence of defendant, it is not error for

that the evidence warranted a finding that
the Court to charge the jury that plaintiff is

the injury was caused by the failure of

defendant to furnish suitable machinery:
entitled to compensation for anything that
increased his suffering, his mental agony,

Bajus v. The Syracuse, B. & N. Y. RR. CO.,

and that they could take into consideration

his situation at that time, how painful, 25. In such an action evidence as to the condi-
how trying it was."-- Quinn v. The L. I.

tion of the engine before and about the
RR. Co., 358.

time of the injury is admissible, but evi-
19. Where plaintiff's evidence tended to show

dence as to its subsequent condition is not.
that the train on which he was a passenger

did not stop at the station, but slowed up, 26. The absence of contributory negligence
that he was induced by the conductor's

on plaintiff's part need not be alleged in the
statements to get off, and that while he

complaint; that fact is involved in the alle-
was doing so, and without warning him,

gation that the injury was caused by defend-
the conductor gave a sigo to start up the ant's negligence. --- Lee v. The Troy Citizens'
train, Held, That a nonsuit was improper; Gaslight Co., 413.
that the evidence tended to show negli-
gence on the part of defendant, and that 27. Requests to charge which assume that
under the circumstances plaintiff should there is evidence from which the jury may

infer certain facts, when in fact there is no and was injured. He recovered in this
such evidence, are properly refused.-Id. action. Held, That the question of con-

tributory _negligence was for the jury.--
28. In an action for the death of a horse caused Reilly v. The Hudson River Bridge Co., 549.

by a gas leak, it appeared that defend-
ant's workmen had stopped a leak there an 32 Where plaintiff drove upon a bridge with
hour or so before ; that plaintiff closed the a heavy load, wider than the bridge, thereby
stable, and noticing a smell of gas exam pushing out braces necessary to its sup-
ined the meter. The Court refused to port, and the bridge fell, Hel, That he
charge that if plaintiff had reason to believe was guilty of negligence, and could not
gas was escaping, knew the danger and left recover for damages sustained by such fall.
the horse there without providing for the -Lawson v. The Town of Woodstock, 570.
danger, thinking the escape of gas was not
sufficient to do any damage, he could not

recover. Held, No error ; that under the RIER, 5; EVIDENCE, 35, 46; MARRIED
circumstances negligence was not an in-

evitable and necessary inference.-Id.


ROADS, 6, 7, 9-11, 18, 19.
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 1. A promissory note made by defendant,
tow path and partly on the retaining wall payable to his wife or bearer, for value re-
built to protect the embankment leading to ceived, Held, To be valid in the hands of a
the canal bridge, and the wheels catching third party; and the wife being dead, the
upon the wall, which rose as it approached husband is incompetent to prove that the
the bridge, the wagon was overturned and note was given without consideration.-
intestate was drowned. No one saw the Benedict v. Driggs, 29.
accident. Deceased was driving on a trot
and it was not shown that he was unskil 2. A promissory note not made payable to
ful, that the horses were unsafe or the the payee's order, or to bearer, is not nego-
wagon and harness out of repair. Held, tiable. -Roe v. Hallett, 34.
That a refusal to nonsuit was proper ; that
whether defendant's failure to maintain a

3. One who signs his name on the back of a
barrier on its own land between the street

non-negotiable note, before delivery, can
and the wall was negligence was a question

be held as a maker of the note or as a
of fact for the jury, and that the facts were

guarantor of its payment.-Id.
sufficient to authorize a finding that de 4. Where a material alteration is apparent
ceased was not guilty of contributory neg.

upon the face of a promissory note, evi-
ligence. — Veeder v. The Village of Lilile
Falls. 445.

dence in explanation thereof must be given

to entitle it to be put in evidence against
30. Defendants conducted a bluestone yard,

defendant's objection Evans v. Deming,

and employed S. He had charge of shift-
ing stone, work in the mill and with the 5. Therefore, where the note (non-negotiable)
derrick. He had not power to hire or dis produced showed an alteration in its date,
charge men, and was not general superin and the insertion of figures in the body of
tendent. Owing to alleged improper orders the note expressing a larger sum than that
given by S. while shifting stone with the expressed in the words immediately follow.
derrick, plaintiff was injured. Held, That ing, and the larger sum was claimed, Held,
plaintiff and S. were co-servants, and that That the alterations were material, and
plaintiff could not recover against defend. should have been explained before receiving
ants, the masters. -Scott v. Sweeney et al., the note in evidence, notwithstanding the

written words would control.-Id.
31. Plaintiff was sailing in a yacht when he
signalled defendants that he wished to pass

6. Plaintiff having claimed payment of the
their draw. He was familiar with the sig.

larger sum and demanded it in her com-

plaint, and thus rendered a trial and judi-
nals given when the draw was about to

cial determination necessary, it was too
open. He heard these signals (although

late to waive that sum and consent to take
they were not addressed to him) when very
near the bridge, but far to the east of the

judgment for the smaller sum.-Id.
draw. Proceeding on a westerly tack 7. An offer by the maker before suit brought
nearly parallel to the bridge, and in a posi. to pay the smaller sum, but without at.
tion where he could not see how far the tention being called to the alteration in the
draw had opened, he found on reaching it date, is no waiver of the alterations made.
that it had moved but a few feet, and that -Id.
passage was impossible. In attempting to
go about he struck a dock which connected 8. The defendant, Eda Rubino, made her
the piers supporting the draw when swung, 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.,

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


See PRACTICE, 6, 16-18; REPLEVIN, 1,

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.-Id.
13. Defendant, sued upon his note, set up a

lack of consideratio 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


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.

JURY, 4.

1. The owner of a city lot may fill up his lot

and build upon it, and the surface water




may be thrown from it upon adjoining lots vacancy in any office, prevented the crea-
and made to flow upon them in a different tion of a vacancy in the office of Mayor of
way and larger quantities than before, the city of New York, by reason of the fix.
without being liable in damages therefor. ing by said act of the hour at which the
He may not collect such water into a chan term of the mayor of said city elected
nel and cast it upon his neighbor's lot, but

under such act should commence.-Id.
he is not bound, for his neighbor's protec-
tion,' to collect the surface water which 7. The only vacancy in the office of Mayor
falls upon his lot and lead it into a sewer. -

of the city of New York which the presi-
Saal et al. v. Abeles, 528.

dent of the board of aldermen is em-

powered to fill by $ 32 of Chap. 410, Laws

of 1882, is one ihat occurs during an un-

expired term by death, resignation, or the

other causes which produce a vacancy

according to the statute defining vacancies.
1. Defendant had been elected in 1881 excise -Id.

commissioner of a town for three years,
but failed to file his bond. He was after-

8. Section 32, of Chap. 410, Laws of 1882,
ward, in 1882, appointed such commis empowering the president of the board of
sioner, until the next election, by the

aldermen of New York City to fill a vacan-
justices of the peace, in an instrument

cy in the office of mayor does not in any
which recited that a vacancy existed, and

event constitute him the mayor of the city.
defendant gave a bond thereupon, which

but, at most only empowers him to act as
recited that his appointment was to fill a

mayor; and the power given to the mayor
vacancy. At the next election, in 1883,

by Chap. 43, Laws of 1884, of appointment
defendant and relator were candidates for

to office without confirmation by the alder-
the office and relator was elected. De-

men cannot be exercised by a president of
fendant now claims to hold under his

the board of aldermen, elected before the
election in 1881. Held, That if defend passage of said act, while acting
ant's failure to file a bond did not create a

vacancy it was still ground for this action
by the people in the nature of a quo_war-

See EXCISE, 6, 7.
ranto and to oust defendant. The People
ex rel. Cowles v. Ferguson, 276.

2. The fine fixed by $ 1956 of the Code to 1. The prohibition contained in § 6 of Chap.
be imposed on one who usurps an office

202, Laws of 1884, is not confined to cases
can ouly be imposed by the court; a re-

of deception in the manufacture and sale
feree has no power.— Id.

of the article prohibited, but is absolute.-

The People v. McGann, 420.
3. Where the term of an executive or ad-
ministrative office is declared by statute to

2. Said section is not unconstitutional.-Id.
be for one or more years from a designated
day the language must be construed to

mean until the hour of the same day at
which the successor becomes duly qualified 1. In a suit by the trustees to foreclose a
to assume its powers.The People ex rel.

mortgage given to secure railway bonds
Wood v. Lacombe, 353.

issued for the construction of the road,

petitioner made application to be made a
4. When the term of an officer is declared by

party. Petition stated that the construc-
statute to be two years, commencing on

tion contract was made with T. on behalf
the first day of January next after his elec-

of himself and petitioner ; that petitioner
tion, and a subsequent statute is passed

sold $50,000 worth of the bonds, personally
declaring that the term of his successor guaranteed their payment, and expended
shall commence at noon on the first day of

the proceeds in the enterprise. That T. &
January succeeding the latter's election, B. conspired to defraud to him. T. trans-
this subsequent statute has the effect of de ferred the contract to B., who completed a
fining the hour of the expiration of the portion of the road, got possession of all
term of the existing officer as well as the

the bonds, including the bonds guaranteed
commencement of that of his successor. by petitioner, and also 3,000 shares of the

stock. That petitioner is now being pur-

sued at law by sub-contractors with whom
5. The provisions of 1 R. S., Chap. V., Title he and T. had made contracts. That T.

6, Art. 1, Sec. 9, familiarly known as the & B. have been and now are operating the
Holding Over Act," apply to the office of railway, and have made sufficient money
Mayor of the city of New York, and con to pay the interest on said bonds; that there
sequently no vacancy would accrue in that is no necessity for the foreclosure, but that
office by the expiration of a term.- Id. T. & B. are causing the foreclosure with a

view of defrauding petitioner of his interest
6. Section 2143 of Chap. 410, Laws of 1882, in the contract and bonds, and in effect to

declaring that said act should not create a make him liable upon his guaranty of said

bonds. Held, That petitioner should be for debts of the company in the absence of
made a party for the protection of his in proof that plaintiffs or other dealers with
terests. The Mercantile Trust Co. v. The the company saw or knew of this sign, or
Rochester & Ont. Belt R. Co., 508.

that any reliance was placed on it when

the debt was incurred.--[d.
See Contract, 22; DISCOVERY, 3 ; EASE-

MENT, 5; EXCISE, 8; MORTGAGE, 6, 14; 3. Entries in the books of a firm made years

after the retirement of a former partner

have no more force or weight against such

partner than the verbal declarations of the
1. A widow to whom the premises had been

members of the new firm.- Pringle v. Let-
devised for her life or while she remained

erich, 90.
single brought action for partition against 4. Mere naked declarations of the remaining
the remainder-men and partition was de members of a firm, not connected with any
creed. Held, That if she was not author-

dealings upon which a dealer with the firm
ized to maintain the action because not a

takes action, and in which he reposes no
joint tenant or tenant in common the de-

confidence, cannot be used against a part-
fect was not jurisdictional, and that the

ner who has retired from the firm.-Id.
error in awarding a decree, if any, should
have been corrected on appeal and could 5. Defendant, to prove the proceedings in
not be questioned or the decree impeached bankruptcy of the remaining members of
collaterally.- Cromwell v. Hull et al., 53. the firm, put in evidence their petition,

with schedule attached. Held, That this
2. When one of several tenants in common is

did not make the schedule evidence against
in actual possession his possession will, in him of the facts contained therein.-Id.
the absence of any act of ouster on his part,
inure to the benefit of all, and any one of 6. A partnership debt, although evidenced by
them can maintain an action for partition. the individual note of a member of the
Consequently, it is not necessary to allege firm, is equitably payable out of the part-
that the plaintiff was or had ever been in nership property. - McCarthy et al. v. Fitts
possession.- Wainman v. Hampton et al., et al., 225.

7. Where one partner sells his interest to the
3. In an action of partition under the Re other, who continues the business in the

vised Statutes the mere putting in of an firm name, debts contracted for goods sold
answer claiming title to the whole premises to the house afterwards are, as against
did not prevent the Court from ascertaining other creditors, individual debts of the
whether any such title existed, or from remaining partner.-Id.
determining whether there was a subsist-
ing adverse possession. So held of a claim 8. A mortgage given by a special partner to
that plaintiff contracted to convey his in raise money with which to pay his indi.
terest to defendant.-Id.

vidual debts when either he or the firm is

insolvent is not void as preferential, under
4. The security required by statute to be 1 R. S., 767, § 21.-George et al. v. Grant
given by guardians of minors in partition et al., 265.

cannot be dispensed with even
where the clerk of the court is appointed 9. As to whether an assignment, transfer or
such guardian.-- Fisher et al. v. Lyon et al.,

mortgage by a general or special partner of

his individual property to secure his in.

dividual debts made at a time when either

he or the firm is insolvent is prohibited

under that section, quære.-Id.
1. Defendants, in contemplation of assuming

control of a corporation, entered into a 10. On the formation of a limited partner
written contract with it, which provided ship the usual certificate was filed, but the
that they should make advances on orders special partner paid in his share of the
for goods manufactured by it and for a capital by check, which was afterwards
percentage to be paid them on said orders, paid. Held, That the misstatement ren-
such advances to be secured by mortgage. dered the special partner liable as a general
Held, That this did not constitute a co one for the firm debts, but that the part-
partnership.—Cassidy et al. v. Hall et al., nership was in form a limited one and

liable for the firm debts.-Durant v. Abend-

roth, 356.
2. The fact that defendants endeavored to

improve the financial condition of the 11. One of the general partners instituted
company by giving directions to its em proceedings for voluntary bankruptcy of the
ployees, soliciting orders and trying to es firm, to which the special partner was not a
tablish its credit, is not sufficient to create party, and the firm was duly adjudged
a partnership ; nor will the fact that the bankrupt. Held, That the decree was not
company's factory sign contained defend conclusive as to any fact in a subsequent
ants' names render them liable as partners proceeding between the creditors and the


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