Imágenes de páginas

given by the prosecuting witness of the fal-
sity of the evidence, but all that it requires
is that there should be additional evidence
strongly corroborative of that given by the
prosecuting witness.-Id.

special partner, and that the fact that the
creditors proved their claims and accepted
a dividend in the bankruptcy proceedings
did not estop them from litigating as
against the special partner any fact liti.

gated or involved in such proceedings.-Id.
12. There is nothing in the limited partner-

ship act which prevents the change of an
existing partnership into a limited one, or
which prohibits a limited partnership from
purchasing in good faith the stock of a for-
mer firm, or from paying for it out of cap-
ital contributed by the special partner,
although the latter is thereby placed in
substantially the same position as if he
originally bad put in the stock as capital
instead of money.-The Metropolitan Nat'l

Bk. v. Sirret, 362.
13. The word “annually" in § 15 of the act
has the same meaning as

per annum,”
and the annual interest may be paid
quarterly or at any other stated period.-

14. The act does not prohibit the special part-

ner from assuming his proportion of the

15. The publication of a copy of the certifi-

cate filed, which states all the facts required
by $ 4, is sufficient to satisfy the require-
ments of $ 9, and a change of the name
of a newspaper in which the publication is
directed to be made, after such publication
is commenced, will not affect its validity.


4. Chap. 251 of the Laws of 1875 applies to

the city of New York, and the Board of
Aldermen are empowered thereby to make
the contract provided for therein.-The

People v. Bowe, 515.
5. A jailor who falsely verifics a list or state-

ment of the persons confined in his jail on
civil process who liave made oath of their
inability to support themselves during their
imprisonment, which list or statement is
required by law to be made and verified in
order to entitle the sheriff to recover com.
pensation from the county for their support
and maintenance in accordance with a con-
tract made by him, is guilty of perjury,
and he cannot protect himself against
criminal liability by alleging his incom-
petency to make such verification.-Id.


1. A motion to strike out of a complaint cer-

tain causes of action on account of their
misjoinder with others is not the proper
method of taking advantage of that defect.
The objection should be taken by demurrer.
- Averill v. Barber et al., 11.

2. A count of a complaint which sets forth an

agreement by defendant that a mortgage is
a first licn ; and a breach of that agreement
states a good cause of action, although it
does not aver in terms that the defendant
“warranted " the mortgage to be a first
lien.-Hyde v. Eckler, 31.


See DEEDS, 7.


3. A counterclaim cannot be urged for the

first time on appeal.—Kelly v. Bonesteel, 38.

4. A cause of action against a railroad com-

pany for injuries to plaintiff's land, caused,

as alleged, by defendant's having erected an

embankment which turned the water of a

stream upon said land, cannot be joined

with a cause of action for failure to con-
1. An indictment charging the defendant with

struct a farm crossing.-Thomas v. The U.

& B. R. RR. Co., 273.
having committed the crime of perjury by
giving material evidence in an action be-
tween certain parties for a limited divorce 5. In an action on a promissory note in the
contains a sufficient statement of the nature

usual form made by defendant to plaintiff
of the action in which it is claimed that the

the defendant, among other allegations,

answered that he had made and delivered
perjury was committed. The People v.

the note as trustee for a married woman
Grimshaw, 116.

under the laws of Virginia, all of which
2. A person is guilty of perjury who swears plaintiff knew, and under an arrangement

falsely as to a fact material to a defence set that the note should be paid out of a sum
up in an action, although such defence set apart from the married woman's prop-
would fail without proof of other facts. — erty, as plaintiff also well knew, and that

said note hall been paid to that extent. On

motion the court refused to strike out such
3. In a prosecution for perjury the law does allegations from the answer. Held, No

not exact positive proof in addition to that error.- Thierry v. Crawford, 319.

artistically drawn, and the statements im•
properly made, yet they must be taken as
admitted allegations of fact, and as such
are sufficient; that defendant must show
on the trial that the transactions were void
in Massachusetts ; that though under the
statutes in regard to betting and gaming
plaintiff may recover his money, this he can
do only under the statutes, and by disaffirm-
ing the contracts.-Id.

6. The Code of Civ. Pro. does not authorize

a denial in the form “ He denied each and
every allegation not hereinbefore admitted

or denied.”Id.
7. The complaint alleged that the defendant

H. requested the plaintiff's assignor to fill
an order of the defendant V. for certain
merchandise, “he, said H., guaranteeing
or promising payment therefor." Held,
On a motion for that purpose, that the
complaint should be made more definite
and certain by requiring plaintiff to elect to
sue the defendant H. either as a promissor

or as a guarantor.–Partridge v. Fłaley, 320.
8. In an action to recover for injuries to plain-

tiff's wife, caused by her falling into an
excavation in a public street made by de-
fendants and left unguarded, the answer
alleged that the injuries alleged
caused or contributed to by the injured
party ; that defendants had settled said
claim with plaintiff, and then denied “ each
and every other allegation in said com-
plaint contained not hereinbefore specifi-
cally admitted, qualitied or denied.” Held,
That the material allegations of the com-
plaint were excepted from the general
denial. — Clark v. Dillon et al., 329.


13. In an action to recover possession of real

estate where the title relied upon by the
plaintiff is derived from a deceased owner
as heir at law, and the defense set up is
that such owner made a will devising and
disposing of the property in question, a fur-
ther allegation that the said will had been
presented to the Surrogate for probate and
admitted to probate by him with a detailed
statement of the proceedings before him for
that purpose, with copies of the will and
papers used in the probate proceedings an.
nexed as exhibits, will not be stricken out
on motion as irrelevant and redundant.-

Watson v. Phyfe et al., 372.
14. When an answer sets up new matter by

way of affirmative defense of such a char-
acter that the intelligent trial of the action
requires that the defendant should be in-
formed whether the plaintiff intends to
deny such new matter or expected to avoid
its effect in some other way, and that with
out a reply the defendant might very well
be subjected to surprise entiiling him to
avoid a determination of the action which
the facts of the case would require to be
otherwise disposed of, the plaintiff will
be ordered to reply to such new matter.-

9. Power to strike out a defense in actions in

equity for refusal to obey orders of the
Court existed in the Court of Chancery
and now exists. Section 1773 of the Code
does not purport to take it away, but only
to provide a way by which a disobedient
party may be fined or imprisoned for a
contempt for refusing to obey orders for
the payment of alimony.-Brisbane v. Bris-
bane, 343


10. As to whether or not a defendant can

properly plead a denial of knowledge or in-
formation sufficient to form a belief as to
an allegation in the complaint concerning a
matter which must necessarily be within his
knowledge, quære.

Nicholš v. Lumpkin,

15. Where a complaint states a reason for

equitable relief upon the ground of mutual
mistake, and also upon the ground of
fraud, and upon the trial no fraud is shown,
the action may be maintained, provided the
count for mistake is not dependent upon
the allegation of fraud, is sufficient in itself
and is supported by proof.- Russell v.
Brownell, 504.




11. But such questions may not be raised by

12. The answer to a complaint on promis-

sory notes alleged to have been made in
Boston, Mass., set forth that defendant, at
the time of giving them, was engaged in an
illegitimate business in Boston, known as
the "bucket shop" business, consisting of
the purchase and sale of stocks iu fractional
quantities, on margins, without an actual
delivery at any time ; that plaintiff was a
customer of defendant therein, and the
transactions resulting in the giving of the
notes were, to plaintiff's knowledge, gam-
bling transactions therein, and illegal and
void ; that the notes were without other
consideration, and therefore illegal and
void and plaintiff knew it, &c. Held, On
demurrer, that though the defense be in-

1. Sec. 5, of Chap. 100, Laws of 1879, con-

fers authority upon the Commissioners to
determine when the state of the funds or
the public interest require or permit the
suspension of a police officer, and their de
termination involves the exercise of discre-
tion and cannot be interfered with or re-
viewed by this Court.-The People ex rel.
Woods v. Police Com'rs., 552.

1. An attorney's claim for services rendered

in prosecuting a bastardy case is not one
relating to the relief, support or transpor-
tation 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.- Neary
v. Robinson et al., 388.



13; WILLS, 7-10, 12.

1. Relief cannot be granted when it is incon-

sistent with the case made by the com-
plaint.The Third Natl. Bk. of Buffalo. v.

Cornes et al. 30.
2. Relief will be granted, although not asked

for in terms by the complaint, when it is
clearly equitable and within the power of

the Court.-Simson et al. v. Chadwick, 35.
3. A general objection to a question which is

proper in part cannot be sustained.-Id.
4. If a party fails to ask to go to the jury upon

certain questions, he cannot object upon
appeal that there are questions that should
have been submitted to the jury.- Atkinson

v. Stafford, 49.
5. If the Court inadvertently mistakes the

facts in charging, the jury, counsel must

call its attention thereto at the time.-Id.
6. When a plaintiff is taken by surprise by the

production of evidence proving a defence
pleaded, the truth or falsity of which he
might have ascertained by communicating
with a third person in a foreign state, he
should withdraw a juror and thus arrest
the trial, and not proceed and take the
chances of success, and then move for a
new trial on the ground of surprise and
newly discovered evidence.-Soule et al. v.

Oosterhoudt et al., 67.
7. To justify the reversal of the determination

of a trial court upon questions of fact it
must appear that the findings of fact were
against the weight of evidence or that the
proofs so clearly preponderated in favor of
a contrary conclusion that it is reasonably
certain that the trial court erred.-Baird v.

The Mayor, &c., of N. Y., 100.
8. When a plaintiff's complaint is dismissed

at the close of his evidence upon the ground
that such evidence is insufficient to consti-
tute a cause of action, the judgment cannot
be sustained upon appeal if any evidence
material to sustain the issues on the part of
the plaintiff was improperly excluded dur-
ing ihe trial. --Selorer v. Chaffee, 115.

Vol. 20—No. 26c.

9. A justice out of court has no power to make

an order striking exceptions to the findings
and refusals to find of the court in an
equity case from the judgment-roll and

case on appeal as filed. - Petlit v. Pettit, 154.
10. When the judgment-roll and case on ap.

peal has been filed, a motion to correct it
should be made to the Special or General

11. It is proper for the clerk, to whom written

exceptions to the findings and refusals to
find of the court in an equity case are pre-
sented, after the filing of ihe judgment-roll
within the time specified for that purpose
by $ 994 of the Code of Civil Procedure,
to file the same and annex them to the
judgment-roll as part of his return on ap-
peal ; and it is not necessary that such
written exceptions should be made part of
the case to be passed upon on settlement by

the trial judge.-Id.
12. The fact that a complaint alleges facts not
essential for plaintiff to aver or prove,

that the same are denied by the answer,
does not deprive the defendant of the
affirmative if he is otherwise entitled to it.--

Phillips v. Brown, 155.
13. When a party moves for nonsuit, or rests

his defence on certain propositions of law,
and his motion is denied or the law is de-
cided against him, and he does not ask to go
to the jury, he waives bis right to go to the
jury and cannot on appeal urge that there
were questions for the jury.-

King v. The
U. 8. Life Ins. Co., 203.
14. Where there is a question of fact for the

consideration of the court, a motion for
nonsuit should be denied. — Grant v. Keef,

15. The General Term has power to amend its

order or judgment so as to make it declare
the truth, notwithstanding an appeal has
been taken therefrom.The Nati City Bk.

v. The N. Y. Gold Exchange Bk., 311.
16. The Code has not provided for a motion

for a new trial upon a case and exceptions
when the case has been tried by the court.--

Scrymser v. Phelps, 314.
17. County courts are authorized to grant new

trials on their minutes in cases originating
in justices' courts and retried in county

courts.Hinman v. Stilwell, 401.
18. Except in a plain case a motion for a new

trial should be made on a case.-Id.
19. The Supreme Court has no power to set

aside a judgment entered on a remittitur of
the Court of Appeals. —Clark v. Mackin et

al., 461.
20. Where a stipulation provided that defend.

ant might appeal and interpose a general
denial and the answer as served contained

DER, 4-8.

also an allegation that the contract in ques could be maintained by plaintiffs as stock tion had been abandoned and a new one holders and that the allegations of consubstituted therefor and that plaintiffs were spiracy were material and proper. -Barr e paid in full, Held, That an order allowing al. v. The N. Y., L. E. & W. RR. Co, et the answer to stand on payment of costs al., 3. would be upheld on the ground that the answer ought to stand as it was to fairly

2. The intent of $ 2 of Chap. 513, Laws of carry out the object of the stipulation.

1860, providing for the construction of deSmith et al., v. Brady, 468.

fendant's road, was to authorize the collec

tion of a certain sum for each car, to be As to practice on appeal, see APPEAL, 4, 5, 8, fixed by the sum paid by other railroads in 11-13, 17, 18.

the city, and as a majority of those which

pay a license pay $50 per car, and only one As to practice in criminal cases, see BLACK pays less, it is clear it was intended to inMAIL, 1, 3 ; CRIMINAL LAW, 1, 3-5 ; MUR clude the majority. If there is any ambig.

uity as to the amount of the license the

greater As to practice in contempt proceedings, see

amount should be taken.-The

Mayor, &c., of N. Y. v. The B'way & CONTEMPT, 8.

Seventh Ave. RR. Co., 145. As to practice in different classes of cases, see

3. The sum reserved by defendant's charter those titles, as ATTACHMENT, 12; CERTIORARI, 3 ; CIVIL DAMAGE Act, 1, 2 ; Com

or prescribed by the city ordinance is

neither a tax, penalty nor fine, and the MON CARRIER, 2 ; EMINENT DOMAIN, 2, 6, 7, 9, 10, 12 : NEGLIGENCE, 3, 6, 8, 9, 11, 14,

statutes and rules applicable to cases of

that character do not apply.-Id. 15, 17-19, 22-24, 27-29, 31 ; NEGOTIABLE PAPER, 9, 13 ; RAILROADS, 9-11, 17 ; SLAN 4. Where a railroad neglects to ascertain and DER, 1.

pay its license fees interest thereon is allow.

able.-Id. See also AGENCY, 3, 4; ATTACHMENT, 2 ; AT.

TORNEYS, 13; Banks, 9; CORPORATIONS, 5. When a passenger on a railroad train has 5 ; DEPOSITIONS, 6 ; EVIDENCE, 16, 23, 24, mislaid his ticket, and is in good faith try36-38, 42, 47, 48; FIXTURES ; FRAUD, 17, ing to find it, he is entitled to a reasonable 18; JUDGMENT, 3 ; MORTGAGE, 15 ; PLEAD time to do so, and if in case he fails to find ING, 1, 5, 9; VENUE.

it he is willing and ready to pay his fare

the conductor has no right to put him off PRINCIPAL AND AGENT.

the train. -Hayes v. The N. Y. C. & H.

R. RR. Co., 237.

6. A passenger about to board a train at a PRINCIPAL AND SURETY.

station has a right to suppose, in the ab

sence of a notice to the contrary, that the See SURETYSHIP.

way to the train is safe, and he is not bound

to anticipate that an engine will back into PUBLICATION.

the station upon another track, without Sce TAXES, 8, 9.

warning, when the passenger train is mor

ing in the station just before it is to stop.PUBLIC HEALTH.

Pineo v. The N. 'Y. C. & H. R. RR. Co.,


7. It does not bar recovery for causing the

death of a child that her father has emanRAILROADS.

cipated her or is dead.-Id. 1. The complaint alleged that the corporation 8. Plaintiff, who had been drinking, was

in which plaintiffs were stockholders leased ejected from defendant's cars for disturb. their road to the Erie R. Co. for a specified ing passengers and for non-payment of fare, rental, a certain portion of which was to be as alleged. It did not appear that he was applied as dividends on the stock ; that a ejected with much force, but after being receiver was appointed of the Erie Co. to put out, or as a consequence of being put whose rights the other defendants succeed out, he fell into a ditch about five feet deep ed ; that the lessce had obtained control of by the side of the track and sustained the lessor ; and that the officers of both "heavy bruises." He testified that he was companies are the same persons; that a con a laboring man ; that after the occurrence spiracy was entered into by the defendants he twice consulted a physician ; that he to depress the price of the lessor's stock, suffered much pain and that he did no work and to accomplish this they refused to pay for seven weeks. He offered no medical the rent to be applied to pay dividends and testimony as to his injuries. He recovered those controlling the lessor refused to de $1,000. Heid, That even conceding that mand and collect said rent. lleld, That an his expulsion was unjustifiable, the damaction for an accounting of receipts of the ages were excessive.- Reilly v. The D. & H. leased road and for payment of said rent C. Co., 290.

9. Where defendant was guilty of gross neg.

ligence in shunting its cars across the street of a populous village, without any person upon them to give warning or exercise control over their movements, and the deceased, who was carrying a basket of coal, may have had his attention diverted by the moving trains upon the further tracks, &c., Held, a proper case for the jury to deter. mine whether plaintiff was chargeable with contributory negligence in not observing the approaching cars before attempting to

Woodard v. The N. Y., L. E. & W. RR. Co., 435.

arrest of such passenger.- White v. The

23d St. RR. Co., 510. 16. A passenger who surrenders his ticket

and receives a stop over check permitting him to stop over only at certain stations designated, cannot, after stopping at a place not specified, resume his journey on another train and insist upon being carried, upon the face of the check, to the place of original destination.- Loomis v. Jewett, 511.


17. 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 passenger 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. -Id.

10. Where, in such cases, the Court charged

that defendant's negligence was established as a matter of law, but no exception thereto was taken, nor did the defendant ask the Court to submit the question to the jury, Held, That error in the charge in reference to sounding the whistle, &c., or as to defendant's negligence, was not available on

appeal.-Id. 11. Plaintiff was injured by falling from a

sidewalk crossing a ditch on a dark night. There was no guard to the sidewalk and the ditch was constructed by defendant's predecessor to carry off surface water. Repairs to the walk bad always been made by defendant and it did not appear that the village ever exercised any control over it. The question of defendant's liability to maintain the crossing over the ditch was submitted to the jury and they were charged that from the evidence they had a right to find that defendant agreed to do so. Held, No error. - Babcock v. The N. Y. C. & H. R.

RR. Co., 477. 12. Evidence as to the manner in which side

walks were built across similar ditches in adjoining cities is inadmissible.- Id.

18. Whether the sending of an engineer in the

night time in charge of a locomotive engine when he was suffering from over-work and loss of sleep, and refusing his request to be allowed to go home and rest, was negligence, so as to render the company liable to a co-employee for injuries directly alıribut. able to his condition, is a question for the jury.-Bauer v. The N. Y., L. E. & W.

RR Co., 532. 19. But the company is not responsible for

such injury if it was not the result or consequence of that condition of the engineer which made it improper to send bim in charge of the engine, but was the result of his negligence and want of care, uninfluenced by that condition ; as, by disobeying an order to stop at a certain station, whereby a collision occurred, killing plaintiff's intestate; who was a fireman upon the other train. The jury cannot be permitted to infer that his mere forgetfulness of the order was attributable to his condition

under the circumstances of this case.-Id. See ASSESSMENTS, 3 ; COMMON CARRIER, 1-3 ;

EMINENT DOMAIN ; EVIDENCE, 22, 25, 32 ; NEGLIGENCE, 3, 5, 6, 8, 9, 12, 15, 16, 19 ; PLEADING, 4.

13. The regulation of an elevated railway

company forbidding passengers to stand upon the platform is a reasonable and proper one, and if there is room inside the cars which can conveniently be reached, and a passenger refuses a request to leave the platform, the servants of the company may properly and lawfully eject him at the nearest station. -Graville v. The Manhattan R. Co., 483.

14. But where, on refusal, the conductor un

dertakes to compel the passenger by phy. sical force to obey the regulation and to go into the car, there being no exigency which requires immediate action, the company is liable for his unjustifiable assault; this irrespective of the question whether there are seats in the car or not.-Id.

RECEIPT. 1. A written instrument, not under seal, ac

knowledging the receipt by one of the parties of $250 in full payment of all claims and demands which he had against the other party by reason of a certain note for that amount (not at present at hand) and also in full payment of any and all claims und demands that he had against the other in any way, they having made a settlement, is not a release, but is in the nature of a receipt, and should not be construed as evidencing the payment of a larger by it

15. If a passenger on a street railroad is

ejected from the car and assanlted 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

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