also an allegation that the contract in ques- tion had been abandoned and a new one substituted therefor and that plaintiffs were paid in full, Held, That an order allowing the answer to stand on payment of costs would be upheld on the ground that the answer ought to stand as it was to fairly carry out the object of the stipulation.- Smith et al., v. Brady, 468.
As to practice on appeal, see APPEAL, 4, 5, 8, 11-13, 17, 18.
As to practice in criminal cases, see BLACK- MAIL, 1, 3; CRIMINAL LAW, 1, 3-5; MUR- DER, 4-8.
As to practice in contempt proceedings, see CONTEMPT, 3.
As to practice in different classes of cases, see those titles, as ATTACHMENT, 12; CERTIO- RARI, 3; CIVIL DAMAGE ACT, 1, 2; COM- MON CARRIER, 2; EMINENT DOMAIN, 2, 6, 7, 9, 10, 12: NEGLIGENCE, 3, 6, 8, 9, 11, 14, 15, 17-19, 22-24, 27-29, 31; NEGOTIABLE PAPER, 9, 13; RAILROADS, 9-11, 17; SLAN- DER, 1.
See also AGENCY, 3, 4; ATTACHMENT, 2; AT- TORNEYS, 13; BANKS, 9; CORPORATIONS, 5; DEPOSITIONS, 6; EVIDENCE, 16, 23, 24, 36-38, 42, 47, 48; FIXTURES; FRAUD, 17, 18; JUDGMENT, 3; MORTGAGE, 15; PLEAD ING, 1, 5, 9; VENUE.
PRINCIPAL AND SURETY. See SURETYSHIP. PUBLICATION. Sce TAXES, 8, 9. PUBLIC HEALTH. See INJUNCTION.
1. The complaint alleged that the corporation in which plaintiffs were stockholders leased their road to the Erie R. Co. for a specified rental, a certain portion of which was to be applied as dividends on the stock; that a receiver was appointed of the Erie Co. to whose rights the other defendants succeed- ed; that the lessee had obtained control of the lessor; and that the officers of both companies are the same persons; that a con- spiracy was entered into by the defendants to depress the price of the lessor's stock, and to accomplish this they refused to pay the rent to be applied to pay dividends and those controlling the lessor refused to de- mand and collect said rent. Held, That an action for an accounting of receipts of the leased road and for payment of said rent
could be maintained by plaintiffs as stock holders and that the allegations of con- spiracy were material and proper.- Barr et al. v. The N. Y., L. E. & W. RR. Co. et al., 3.
2. The intent of 2 of Chap. 513, Laws of 1860, providing for the construction of de- fendant's road, was to authorize the collec- tion of a certain sum for each car, to be fixed by the sum paid by other railroads in the city, and as a majority of those which pay a license pay $50 per car, and only one pays less, it is clear it was intended to in- clude the majority. If there is any ambig- uity as to the amount of the license the greater amount should be taken.-The Mayor, &c., of N. Y. v. The B'way & Seventh Ave. RR. Co., 145.
3. The sum reserved by defendant's charter or prescribed by the city ordinance is neither a tax, penalty nor fine, and the statutes and rules applicable to cases of that character do not apply.—Id.
4. Where a railroad neglects to ascertain and pay its license fees interest thereon is allow- able.-Id.
5. When a passenger on a railroad train has mislaid his ticket, and is in good faith try- ing to find it, he is entitled to a reasonable time to do so, and if in case he fails to find it he is willing and ready to pay his fare the conductor has no right to put him off the train.-Hayes v. The N. Y. C. & H. R. RR. Co., 237.
6. A passenger about to board a train at a station has a right to suppose, in the ab- sence of a notice to the contrary, that the way to the train is safe, and he is not bound to anticipate that an engine will back into the station upon another track, without warning, when the passenger train is mov- ing in the station just before it is to stop.- Pineo v. The N. Y. C. & H. R. RR. Co., 287.
7. It does not bar recovery for causing the death of a child that her father has eman- cipated her or is dead.-Id.
8. Plaintiff, who had been drinking, was ejected from defendant's cars for disturb- ing passengers and for non-payment of fare, as alleged. It did not appear that he was ejected with much force, but after being put out, or as a consequence of being put out, he fell into a ditch about five feet deep by the side of the track and sustained
heavy bruises." He testified that he was a laboring man; that after the occurrence he twice consulted a physician; that he suffered much pain and that he did no work for seven weeks. He offered no medical testimony as to his injuries. He recovered $1,000. Heid, That even conceding that his expulsion was unjustifiable, the dam- ages were excessive.-Reilly v. The D. & H. 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 con- trol over their movements, and the deceased, who was carrying a basket of coal, may have had his attention diverted by the mov- ing 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 cross.- Woodard v. The N. Y., L. E. & W. RR. Co., 435.
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 de- fendant'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. Re- pairs to the walk had 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 charg ed 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.
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 irre- spective of the question whether there are seats in the car or not.-Id.
15. 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 com- pany are liable, and also for causing the
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 un- known 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. -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 negli- gence, so as to render the company liable to a co-employee for injuries directly attribut 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 conse- quence of that condition of the engineer which made it improper to send him in charge of the engine, but was the result of his negligence and want of care, uninflu- enced by that condition; as, by disobeying an order to stop at a certain station, where- by 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.
1. A written instrument, not under seal, ac- knowledging the receipt by one of the par- ties 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 and 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 a
smaller sum, nor as applying only to the note specifically mentioned in it. The fair import of its terms is that the parties had made a mutual settlement of their respective claims, and the payment of $250 was for the balance found in favor of one of them.— Peck v. Peck, 83.
2. The giving of a receipt which specifies a particular claim only, raises no legal pre- sumption against the existence of another claim.-Maxfield v. Terry, 99.
See CORPORATIONS, 11; COSTS, 1; LEASE, 3, 4.
1. A record of the assignment of a written instrument preceded by a memorandum referring to the book and page where such instrument has been previously recorded is a sufficient compliance with the statute and is admissible in evidence.-Putnam v. Stewart, 332.
2. If conveyances are properly recorded memoranda made by the clerk in the proper places, rendering the records intelligible, are within the incidental powers conferred upon the recording officer.-Id.
1. In an action on a draft plaintiff testified that defendant was accustomed to overdraw his account to purchase cheese for R. & S. and would make it good by drafts on said firm; that when he began to draw time- drafts security was demanded and he was distinctly told that he would be held first as drawer, and that after the failure of R. & S. defendant said that he was abundantly able to pay these drafts. Defendant testified that R. & S. gave plaintiff their bond with surety conditioned to pay these drafts, and that defendant told plaintiff's cashier that he could not afford to take any risk on the drafts. Held, That the referee's finding in favor of plaintiff being on evidence both contradictory and admitting of contradic- tory inferences must control.-The Herkimer Co. Nat'l Bk. v. Rust, 149.
2. Where the referee's findings cover all the issues and are sustained by the evidence a refusal to make other or additional findings is correct. The Bank of Attica v. The Metropolitan Nat'l Bk., 156.
3. When a referee makes his report within the statutory time and notifies the attorneys that it is ready and at their disposal and also of the amount of his fees, it is a suthi- cient delivery of such report to prevent the forfeiture of his fees by the termination of the reference under § 1019 of the Code of Civil Procedure, and in such a case it is not necessary for the referee to file his
report with the clerk in order to have it preserve its validity.-Little v. Lynch, 375.
4. Where a referee had made his report, al- though judgment has not been entered upon it, he has no power to make additional findings. So held, where the referee had found the facts in question but, by inad- vertence, had omitted them from his report. The facts were material and necessary to support the conclusions of law.-Gardiner et al. v. Schwab et al., 415.
5. On an appeal from a judgment entered up- on the report of a referee when the evidence is not spread upon the record every pre- sumption is in favor of the referee's report, and the court will, in reviewing the judg. ment, intend that the referee found such facts in favor of the party recovering as are essential to support it.-Talcott v. Smith et al., 562.
See ATTORNEYS, 13; OFFICE, 2.
RELIGIOUS CORPORATIONS.
1. In the absence of any action by the con gregation fixing the salary of a minister, the trustees of a Methodist Church have no power to enter into a contract of employ- ment of a minister at a stated salary.- Landers v. The Frank St. M. E. Ch., 20.
2. Under the laws and regulations of the Methodist Church the minister renders ser- vice, not on an agreed salary, but on an allowance for support to be raised by vol- untary contributions. The entire policy of the church is opposed to the existence of a contract relation between the minister and the society. Id.
1. Where in an action brought in a justice's court to recover the possession of a chattel, the value as fixed by the pleadings exceeds fifty dollars, the appellant is entitled to a new trial in the county court, although no value was fixed or assessed by the justice in the judgment rendered.-Reynolds v. Swick, 476.
2. A defendant who, in an action to recover a chattel, obtains a verdict for the return of a portion of the goods replevied, ex- ceeding $50 in value, as assessed by the jury, is entitled to costs under § 3234 of the Code, although the plaintiff may also be entitled to costs, and although there was but one count in the complaint and but one
cause of action set forth.-Ackerman et al. v. De Lude, 544.
See SALE, 10, 11; SURETYSHIP, 1.
RESCISSION.
See CONTRACT, 19.
1. Under the charter of the city of Rochester the common council may increase the sal- ary of the police justice for the remaining portion of a partly expired fiscal year.- Truesdale v. The City of Rochester, 218.
1. Where a farmer is unable to deliver all the barley raised upon his farm according to the contract, but agrees to purchase and deliver barley of the same quality to make up the deficiency, it will be presumed that a delivery in the mode and manner as under the original contract was contem- plated by the parties, and when a delivery by the wagon load was acquiesced in, the seller cannot be required to deliver the whole of the deficiency in bulk.- Van Sickle v. Nester, 46.
2. If the seller tender a load of barley corre- sponding in all respects with that required by the contract, and the buyer refuses to accept, such refusal dispenses with the necessity of any further tender of other barley.-Id.
3. Where a seller tenders three loads of barley and the buyer examines them, and one load is of the quality required by the contract, but the buyer refuses to accept it except upon a condition that he has no right to impose, the seller is excused from making a separate tender of that load. -Id. 4. Under such a contract the seller is not required to have the whole amount of barley on hand ready for delivery, and the wrongful refusal absolves him from pur- chasing any further.-Id.
5. Where plaintiffs purchased certain barrels of sugar of defendant at a specified price per pound, to be weighed and taken the following morning, and during the night the same were damaged by rain, Held, That defendant continued to be the owner and the loss by rain fell on him; that plaintiffs could refuse to receive the sugar and recover the amount paid by them on the contract.-Fogerty et al. v. The Conti- nental Ins. Co., 61.
6. The sale, by written agreement not under seal, of standing timber, with the intention that the vendee should cut and remove the same, is sufficient to pass title to the grow- ing trees, and changes them from real to personal property as between the parties.— Lyon v. Wing et al., 144.
7. Where plaintiff's possession of a lot of land was such only as was necessary to enable him to take off the standing trees, Held, That such possession was not notice of plaintiff's rights to a subsequent pur- chaser of the lot.-Id.
9. Upon a contract for the purchase of a horse, it was agreed that the purchaser should take and use the horse, and if it drove to suit him he was to keep her and pay therefor a certain sum. Before the purchaser had signified, or expressed, to the seller, his satisfaction with the horse and his determination to keep it, the horse became sick and died. Held, That no property in the horse had passed to the intended purchaser, and he was not liable for the price.-Carter v. Wallace, 539.
10. Where a vendor has brought action of replevin on the ground that the goods were obtained from him by fraud, and while such action is pending he cannot divide his action and sue upon contract to recover the value of the goods not taken in the replevin proceedings.- Wile et al. v. Brown- stein, 559.
11. Section 1719, Code Civ. Pro., furnishes no authority for such procedure.—Id. See BAILMENT; FRAUD, 4, 14; WARRANTY.
1. The Board of Education of a school dis- trict organized under Title 9, Chap. 555, Laws of 1864, has power to employ legal counsel.-Gould v. The Board of Education of Union Free School Dist. No. 9, 133. See TAXES, 5, 6.
1. Proof which merely shows discrepancy in the othicer's return of service of a summons, which discrepancy does not invalidate the service but shows that it was properly made, is no impeachment of the service.- Huntley v. Baker, 226.
See CONTRACT, 24; EVIDENCE, 26.
1. In ascertaining the amount to be paid to the assignee of all the interest of a legatee under a will, the claim of the executor against the legatee on a note made to the testatrix by a partnership of which said legatee is survivor may be set-off or re- tained against the legacy, the note, at the time of the assignment, being in the exec- utor's hand and past due.-Ferris v. Bur- rows et al., 296.
2. Where an answer sets up facts which are not available as a defense but establish an equitable right of set-off, defendant is en- titled to the benefit of such facts so far as to discharge plaintiff's claim, although the same are not alleged as a counterclaim.- Baker et al. v. Hotchkiss, 449.
3. Whoever takes an assignment of an over- due debt or obligation takes it subject to all the equities of the person who makes the assignment, and the debtor has against him the same equities as against the as- signor. Littlefield v. The Albany Co. Bk., impld., 489.
4. Plaintiff on buying out his partner J.'s interest in the firm gave him certain prom- issory notes in payment, on the agreement that plaintiff should attend to the prosecu- tion of an appeal from a judgment against the firm, and that J. would pay half the expenses and of the judgment if affirmed. J. became insolvent and assigned the notes to defendant after maturity and judgment was recovered upon them. Plaintiff was compelled to pay the judgment against the firm. Held, That he was entitled to have half of the amount paid by him on the judgment and for expenses thereon set off against the judgment recovered on the notes.-Id.
1. Ordinarily a sheriff who is sued for taking, on process, a stock of goods from the pos- session of an assignee for the benefit of creditors, and removing them from his pos- session, is not entitled to demand a bill of particulars of the items of the stock of goods so seized and taken; but if, after the commencement of the suit a portion of the goods remaining undisposed of in the hands of the sheriff is returned by him to such as- signee, the latter may be ordered to furnish the sheriff with a bill of particulars of the goods so returned.— Hayes v. Davidson, 38. 2. The authority given by Chap. 462, Laws of 1884, to a judge adjusting the fees of a sheriff upon an attachment to order the payment of such fees is prospective in its character and does not give authority to
order the payment of fees previously ad- justed.-Hall et al. v. The U. S. Reflector Co., 425.
3. When the plaintiff in an action in which an attachment has been issued has served notice upon the sheriff releasing the attach- ment from the property seized, he is not liable for the fees and expenses of the sheriff incurred while retaining the prop- erty for the purpose of maintaining lien upon it for fees previously accrued.―ld.
4. A sheriff who has commenced an action to foreclose a lien upon property attached for fees upon the attachment under which he seized it, on which he has made the plain- tiff in the attachment a party for the pur- pose of holding him liable for any defi- ciency, cannot avail himself of the remedy provided by Chap. 462, Laws of 1884, and procure an order directing such fees to be paid.-Id.
5. To authorize the granting of an order under SS 1421-1427 of the Code, substituting the indemnitors in place of the sheriff, it must affirmatively appear in the motion papers that the applicants became indemnitors be- fore the commencement of the action.- Hayes v. Davidson, 467.
6. As to whether an order can be granted where the property taken was seized under separate and distinct levies at different times, as to some of which only indemnity has been given, and where the indemnity refers to different seizures, the penalties vary largely in amount and some of the in- demnitors do not apply, quære.—Id.
See ATTACHMENT, 5-7; CONVERSION, 1, 2 INDEMNITY, 2; PERJURY, 5.
1. The defendant, who was a partner in bus- iness of plaintiff, said of the latter to a third person: He is a thief. When I came down town this morning my book- keeper reported to me that he had gutted the drawer." In an action for slander, Held, That the words first uttered imputed a crime, and that whether the qualification added so reduced the charge as not to in- clude the crime of theft, was properly sub- mitted to the jury.-McGibbon v. Young,
2. It is slanderous per se to falsely assert that a person has scuttled a ship to get the in- surance -Id.
3. In an action for slander consisting in the two charges above referred to a verdict for $3,000 damages is not excessive.-Id.
4. The husband is a proper party defendant with his wife in an action for slander spoken by the wife.-Fitzgerald v. Quann, 138.
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