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oil in boxes weighing about two the direction of the gangway men hundred pounds each. To obtain of G. Besides all this, there is power for hoisting, G. leased of de- nothing to show negligence of defendants an engine and boiler, in fendants in his employment, and charge of their engineer. Two of the simple fact charged against G.'s gangway men told the engi- him does not show incompetence. neer when to hoist and when to Defendants performed their conlower, and he obeyed their direc-tract and duty when they furtions. Four of the boxes were nished suitable and safe machinery hoisted at a time in a sling. Plain and a competent engineer. The tiff claimed that his injuries were engine may become unsafe or discaused by lowering the boxes too ordered by use, or the engineer fast and then stopping them sud- may make a mistake in the perdenly, whereby they fell out of formance of his duties, but that was the sling and struck him. This as well known by G. and plaintiff position was controverted by de as to defendants, and for injuries fendants, but the jury found for arising from either of these causes plaintiff.

defendants are not responsible The court charged the jury that when they furnish an article not the defendants stood in the place dangerous in itself, in good order of the engineer, and were respon- and condition and in the possessible to plaintiff for his acts. sion and control of a competent Moore, Low & Sanford, for


Besides all this, defend. applts.

ants owed no duty to plaintiff to A. H. Dailey, for respt.

furnish safe machinery or a safe Held, Error. Plaintiff was not the engineer, because the relation of servant of defendants, and they master and servant was not estabowed him no duty resulting from lished between them. any privity between them. They

King v. The N. Y. C. & H. R. might be liable to him or any other RR. Co., 66 N. Y., 181, and Burke person by directing the commis- v. De Castro, 11 Hun, 354, exsion of an act imminently danger- plained and cited. ous to the lives of others, or which

ch | Judgment reversed and new trial when done would be the creation granted, costs to abide event. of a nuisance. Neither of these

Opinion by Dykman, J.; Barnpositions can be assumed in this ard, P. J., and Pratt, J., concur. case; the machinery here was perfect and in order, and there is no evidence that the engineer was in CHANGE OF VENUE. competent, unless such incompe- N.Y. SUPREME Court. GENERAL tence may be inferred from the

TERM. FIRST DEPT. fact that he allowed the boxes to run down too fast, and that is not In re petition of Elihu J. a legitimate inference, because the Granger, applt., v. Edwin A. hoisting and lowering was under Sheble, respt.

Decided Oct. 31, 1884.

ment of the motion the defendant A motion made under $ 319 of the Code of had signed a stipulation to take

Civ. Pro, to remove a cause from the City evidence out of the State.
Court of New York to the Supreme Court,

0. P. Backus, for applt.
and to change its place of trial is not too
late when made two days after joinder of

W. H. H. Russell, for respt. issue, although between the notice of such

Held, That the application was motion and its argument, defendant signs a stipulation to take evidence out of the not too late. That $ 319 of the State

Code of Civ. Pro. permits it to be Said section of the Code does not require

made at any time after the joinder that any demand should be made for a

of an issue of fact and before the change of place of trial prior to an application therefor made thereunder.

trial thereof, and does not require Whether such an application should be in express terms or by implication granted or not is purely a matter of dis

that any demand should be made cretion. To insure the granting of such an application

for a change of place of trial prior something more is required to be shown

to the notice of application. than the mere fact that the defendant is That whether the order sought not a resident of the New York County. could be granted or not is purely

Appeal from an order denying a matter of discretion. 7 Hun, an application, made under $ 319 299. of the Code of Civ. Pro., to remove

That since the court below did this action from the City Court of

not consider the case upon its New York to the Supreme Court, merits the order should be reversed and to change its place of trial to with leave to renew the motion on Kings Co.

its merits. Edwin A. Sheble, a resident of That it is proper to suggest that St. Louis, Mo., commenced this on this and all similar applications action against Elihu J. Granger, a something more is required to be resident of Kings County, in the shown than the mere fact that the City Court of New York, by the defendant is not a resident of New service of summons upon him, on

York County. March 18, 1884. The defendant

Ordered as above directed. appeared on March 21st, and the Opinion per curiam. complaint was served on March 27th.

PRACTICE. APPEAL. CER The answer, containing a coun

TIORARI. terclaim, was served on April 4th, and on April 24th issue was joined N. Y. COURT OF APPEALS. by service of a reply. On April

The People ex rel. The Second 26th defendant gave notice of this application and on May 5th the Ave RR. Co., respt., v. The Board

of Commissioners of the Departmotion was argued and on May 15th an order was entered denying of New York, applt.

ment of Public Parks of the City it “as too late." Between the notice of the application and argu Decided Oct. 7, 1884.


The validity of a consent given by a defend

tions as to bridging the Harlem ant corporation to a third person or a body River, and that the bridge procannot be adjudicated upon in a proceeding to which such person or a body is not posed to be constructed would be a party.

no interference with the privilege An order denying a motion to quash a certio granted to the relator by the Act

rari irregularly or improperly issued in a case not reviewable on certiorari is appeal- Suburban Co. was not a party to

of 1855, if it still existed. The able. A common law certiorari lies only to inferior this proceeding.

tribunals or offiéers exercising judicial Burton N. Harrison, for applt. powers.

The fact that a public agent ex Thomas F. Wentworth, for respt. ercises judgment and discretion in performing his duties does not make his

Held, That the validity of the action or powers judicial.

consent given by appellant to The Park Board is not a corporation and build the bridge should not be adthere is no statute authorizing actions judicated in the present proceed against it by its official name.

ing, the Suburban Co. not being a The relator procured a common party. law writ of certiorari, to review Appellant moved to quash the the proceedings of appellant in writ of certiorari several consenting to the construction by grounds, and the motion was dethe Suburban Rapid Transit Co. of nied and an appeal taken from the an elevated railroad bridge across order of denial. It was claimed the Harlem River, near the end of that the order of denial is not Second avenue, and entering into reviewable. a contract with said company for Held, Untenable; an order denythe building of the bridge at its ing a motion to quash a certiorari, own expense under certain regu. irregularly or improperly issued, lations and conditions prescribed in a case not reviewable on certiin the contract. The relator claims orari, is appealable. In such a case that Chapter 373 of the Laws of the Court of Appeals might on its 1855 conferred upon it the privi- own motion direct the writ to be lege of building a railroad bridge quashed. across said river from the end of Jones v. People. 79 N. Y., 45, Second avenue, and that the bridge distinguished. proposed to be built by the Sub One of the grounds of the motion urban Co. will interfere with the to quash is that the proceedings exercise of that privilege. Appel- of the appellant sought to be relant claims that the rights claimed viewed were not of a judicial by the relator under the Act of character and consequently not 1855 have been abandoned and reviewable on writ of certiorari. lost; that the only authority ever Held, Tenable; a common law conferred upon it was to build a certiorari lies only to inferior trisurface railroad bridge connecting bunals or officers exercising juits horse railroad; that such a dicial powers, to correct errors of structure would be impracticable law affecting materially the rights under the present legal restric. I of the parties.

The fact that a public agent ex- | icy of life insurance upon the life ercises judgment and discretion in of one E. By the terms of the performance of his duties does not policy, the death of the insured by make his action or powers judicial suicide was not a risk assumed by in their character. 68 N. Y., 403. the defendant. Upon the cross

The writ was directed to the examination of one of plaintiffs’ Board of Commissioners of the witnesses the proofs of death furDepartment of Public Parks. nished to the company were iden

Held, Error ; that the Park tified and introduced in evidence Board is a mere department of the by the defendant. Attached to city government. Laws 1873, and constituting part of such Chap. 335. It is not a corporation proofs was a record of a coroner's and there is no statute authorizing inquest on the body of the insured actions to be brought against it by in which the verdict of the jury its official name.

was that his death had been caused Order of General Term, denying by suicide. The plaintiffs rested a motion to quash writ, reversed without producing any evidence and writ quashed.

to show that his death was not so Opinion by Rapallo, J. All caused, and the defendant's counconcur.

sel then moved to dismiss the com

plaint because it appeared prima LIFE INSURANCE.

facie that the deceased came to

his death by his own hand. The N.Y. SUPREME COURT. GENERAL plaintiffs' counsel then objected to TERM. FIRST DEPT.

the proofs of death as evidence in Adolph Goldschmidt et

et al., chief, and to their admission as applts., v. The Mutual Life Ins. evidence for any other purpose Co., respt.

than as bearing upon the question

of their proper service as required Decided Oct. 8, 1884.

by the rules of the company. The In an action upon a policy of life insurance court overruled the plaintiffs' ob

which by its terms declares that the death jections, and ruled that the proofs of the insured by suicide is not a risk as were in evidence for the purposes sumed by the insurance company, when,

of the motion, and also ruled that upon the cross-examination of one of the plaintiffs' witnesses, the proofs of death

the affirmative was with the plainfurnished to the company are introduced in tiffs to prove the cause of the evidence by it, and such proofs show that death of the insured, and that, the insured was held to have committed

unless they gave such proof, suicide, at a coroner's inquest held upon his body, a prima facie defence is established, that the complaint should be disand the complaint will be dismissed, unless missed. The plaintiffs gave no the plaintiff shows that death resulted from

further proof, and the court theresome other cause.

upon dismissed the complaint and Appeal from a judgment entered the plaintiffs excepted to such on a verdict directed by the court. dismissal and to the various rul

This was an action upon a pol-ings leading to that result.

Subsequently, however, upon upon and operate the road and apply the the offer of defendant to allow

proceeds to the payment of the principal

and interest of the bonds or to exercise a judgment to be entered for the

power of sale with respect to the entire amount of premiums paid upon property covered by the mortgage in case the policy which the company

of a default in payment of principal, or of covenanted to return in such cases,

interest continuing for twelve months ; the court directed a verdict for

and it was also provided after a twelve

months' default in the payment of interest, that amount, and to such direction

the principal should fall due. The comthe plaintiffs excepted.

pany defaulted in the payment of a semiWilliam G. Wilson, for applt.

annual instalment of interest, and after the Robert Sewell, for respt.

expiration of about three months the trustee

brought an action to foreclose the mort. Held, That the proofs of death

gage, asking for a sale of the whole propfurnished the company were pri erty and for the payment of the principal ma facie evidence that the insured

of the debt. Upon demurrer, Held, That

such an action could be maintained. died by suicide, and, if the plaintiffs had desired to overcome the Appeal from an interlocutory prima facie case made out by judgment overruling demurrer to them, they should have shown the complaint. that the insured did not die by his This action was brought to own hand. 22 Wall., 32; 95 U. S., foreclose a mortgage made by 380, 390.

the N. Y. City and Northern Judgment affirmed.

RR. to plaintiff, as trustee, to Opinion by Brady, J.; Davis, secure the payment of the prinP. J., and Daniels, J., concurred. cipal of its bonds and the inter

est upon them payable in semi

annual instalments. By the terms MORTGAGES.

of the mortgage the railroad N. Y. SUPREME Court. GENERAL in possession of the mortgaged

company was entitled to remain TERM. FIRST DEPT.

property until some default in The Central Trust Co. of N Y., the payment of the principal or trustee, respt., v. The N. Y. City & interest of its bonds or of some Northern RR. Co, applt.

part thereof. It was further pro

vided that in case of a default in Decided Oct. 8, 1884.

payment of principal or interest The N. Y. City and Northern RR Co. continuing for twelve months, the

mortgaged its road, franchises, &c., to the trustee might enter upon and opCentral Trust Co. of N. Y., to secure the pay erate the road and apply the net ment of the principal of its bonds and the proceeds to the payment of the interest upon them due semi-annually. The railroad company was entitled by the terms

debt or interest, or that it might of the mortgage to remain in possession of exercise a power of sale with rethe mortgaged property until some default spect to the entire property covshould be made in the payment of the ered by the mortgage, and also, principal or interest on its bonds, or some part thereof; and, by a separate proviso,

that in case of a twelve months' the trustee was given the right to enter 'default in the payment of interest

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