author: . BaeKee, J.:

text:
    FELLUS E. FAIRCHILD, Appellant, v. JOHN C. FELTMAN, Respondent.

      Draft — what does not amount to a sufficient written acceptance thereof— 1 JR. 8., 768, seas. 6a.7i.iZ7 — Consideration — what is insufficient to support a promise to pay money to a third person.

    On March 29, 1876, one Orofut being indebted to the plaintiff in the sum of $100 gave him a draft for that amount drawn upon the defendant, who was then indebted to Orofut in a sum larger than that named. Prior to the drawing of the draft the defendant had promised the plaintiff that he would accept it if drawn by Orofut, if he then owed him the amount thereof. After he was notified by the plaintiff that he had the draft he wrote a letter in which he said that it was all right and that he would come up in a few months and pay the draft.

      Held, that the evidence failed to show such a written acceptance of the draft as was required to render the defendant liable thereon.
    Thereafter the defendant made a parol promise to Orofut and the plaintiff that lie would pay to the latter the sum of $100. Orofut credited him with that sum in an account kept against him. The balance which remained due to Orofut was not paid. It was not shown that the defendant had been released by Orofut from his indebtedness, nor that the relation of debtor and creditor existing sbetween the plaintiff and Orofut had been in any way changed.

      Held, that there was no sufficient consideration to support the promise of the defendant to pay the plaintiff, and that the latter could not maintain an action thereon.
    Appeal from a judgment, entered upon an order of the Lewis County Circuit, granting a nonsuit, and from an order of the Special Term denying the plaintiff’s motion for a new trial, made upon the minutes of the justice before whom .the action was tried.

      Walter Ballou, for the appellant.
    • Levi H. Brown, for the respondent.
   . BaeKee, J.:

The action is founded upon the alleged promise of the defendant to pay to the plaintiff the sum of $100 on the 29th day of March, 1816. Levi Orofut was indebted to the plaintiff in the sum of $100, and at the same time the defendant was indebted to Crofut in a larger sum, being for a balance arising out of a mercantile and trading transaction. On that day Crofut drew a bill or check on the defendant in this form:

“JohN C. FeltmaN: Please pay Fellus Fairchild one hundred dollars and charge to my account, and oblige, "

" “LEVI CROFUT.”

The evidence tended to show that the defendant, after the bill was delivered to the plaintiff, made a parol promise, both to the payee and drawer, that he would accept and pay the same. I think the evidence fails to establish that Feltman, at any time, accepted the bill in writing. Previous to drawing the bill the plaintifE had an interview with the defendant and asked him if he, the plaintifE, should procure an order from Crofut for $100, if he would accept the same. The defendant replied, if he owed Crofut $100 he would accept the order. On receipt of the bill, the plaintiff addressed a note to the defendant in reference to the same, to which the defendant replied in writing. The letter being lost the plaintifE was permitted to give the contents, which he stated to be substantially as follows: That he owed Crofut $100, and that money was tight with him; that if plaintiff would wait he would come and see him in July or August, and that it was all right. After-wards the draft was forwarded for collection and the defendant declined to pay it.

The case states that the defendant wrote to the plaintifE on receiving his letter that money was close, but that he would be up and pay him; that it was all right. In my judgment this evidence does not establish an acceptance in writing so as to hold the drawee and make him a party to the bill. An action cannot be maintained against a drawee until he has become a party to the instrument by his written acceptance. A parol acceptance is not valid. It is a provision of the statute relating to bills of exchange that no person shall be charged as an acceptor on a bill of exchange, unless his acceptance shall be in writing signed by himself or his lawful agent. If such acceptance be written on a paper other than the bill, it shall not bind the acceptor except in favor of the person to whom such acceptance shall be shown, and who on the faith thereof shall have received the bill for a valuable consideration. (1 R. S., §§ 6 and 7, p. 768; Duncan et al. v. Berlin et al., 60 N. Y., 151.)

If the letter written by the defendant to the plaintiff can be fairly construed as an unqualified acceptance and promise to pay the draft, then the provision of the statute defeats a recovery thereon, for the reason that the letter was written after the draft was delivered to the payee, who did not receive the same on the strength of the letter and did not advance anything thereon. The plaintiff utterly failed to make out a case for recovery on the instrument, regarding it either as a bill of exchange or a check.

After the first interview between the plaintiff and the defendant, the evidence tends to prove that the defendant continued to be indebted to Crofut in a sum greater than $100, and that Crofut’s debt to the plaintiff remained unpaid, and that the defendant madé a parol promise to Crofut and to the plaintiff that he would pay the plaintiff the sum of $100, being the sum which was due the plaintiff from Crofut. That afterwards Crofut gave the defendant a credit of $100 in his account, as kept by him, by making an entry on his book as follows: “ March twenty-seven, by draft, F. Fair-child, $100.” These parties continued to have business transactions, which were entered in the same account, and some months thereafter the account was brought to a balance on a settlement between the parties, and there was then due a sum from the defendant t*> Crofut. This balance has not been paid, nor has the defendant in any form been released by Crofut from his. liability to pay. the original indebtedness covered.by this credit of $100. The relation of debtor, and creditor which existed between Crofut and plaintiff has in no wise been changed, or their interests affected, so far as the evidence discloses, by reason of the defendant’s promise to pay the $100 to the plaintiff. The plaintiff insists that the defendant’s par.ol promise to pay the plaintiff the sum of $100 is valid, as founded upon a good consideration, and is within the principles laid down and reiterated in Lawrence v. Fox (20 N. Y., 268), where it was held that an action lies upon a promise made to pay a sum of money to a third person named as promisee, although he was not privy to the consideration and was.a stranger to it.

In that case and in all the others of the same class, of which there are many, it will be found on examination that there was a good and valid consideration passing to the promisor at the time of the promise, and that the agreement containing the promise was in the nature of an original agreement between the promisor and the party from whom the consideration moved. In that case one Holly loaned to the defendant Fox a sum of money, and Holly at that time owed a like sum to Lawrence, the plaintiff, and the defendant, in consideration of the loan, promised at the time he received the money to pay a like sum to Lawrence the next day. It was held that Fox’s promise was based upon a good consideration, and that the promisee Lawrence could enforce the same in his own name and for his own benefit.

In Farley v. Cleveland (4 Cow., 432) the facts in all essential particulars were the same. Moore owed the plaintiff Farley a debt; he sold to the defendant Cleveland a quantity of hay, in consideration of which Cleveland promised to pay Moore’s debt to Farley. The court held in favor of Farley’s right to recover upon the ground the hay received by Cleveland from Moore was a valid consideration for Cleveland’s promise to pay Farley, and the subsisting liability of Moore to pay Farley was no objection to the recovery.

In the many cases which have been decided in the several courts of this State since the decision of the cases cited, it will be observed on examination that in each of them there was a good and sufficient consideration passing io the promisor at the time of making the promise sued upon. (Barlow et al. v. Myers, 64 N. Y., 41; Burr v. Beers, 24 id., 178.) The promise made by the defendant to pay to the plaintiff a part of the debt which he owed Orofut was a mere nudum factum. The promise madé by the defendant to Orofut to pay the debt which he owed to the plaintiff was also without any consideration to uphold it. At the time the latter promise was made the relation existing between them was that of debtor and creditor based upon previous and completed transactions; It was nothing more than an executory parol promise without consideration to discharge Crofut’s obligation to the plaintiff. At that time Orofut, the creditor, did not release to the defendant any portion of his then existing indebtedness. The credit given the defendant in his account with Orofut upon the books of the latter did not discharge any part of the defendant’s indebtedness to him. The arrangement amounted to a permission on the part of Orofut that the defendant might discharge that amount of his obligation to him by paying the dike sum to the plaintiff, and if he had done so it would bare been, in legal effect, a discharge of bis indebtedness to that amount, but so long as it remained unexecuted Crofut could maintain an action upon the original indebtedness, notwithstanding the defendant’s promise. The subsequent accounting between the parties and allowing the credit to stand does not, in legal effect, amount to a release or discharge of the defendant’s obligation to Crofut. If then, or any time afterwards, Crofut had executed and delivered to the defendant a release from his obligation, and in consideration of the same the defendant had promised to pay to the plaintiff the amount of the-debt discharged, it would doubtless have constituted a good consideration in support of a promise, but there is not the least evidence that he ever promised or offered to give the defendant a release or discharge in any form. The past consideration, out of which the original indebtedness to Crofut arose, was not sufficient to support his new promise to pay the plaintiff and become a debtor to him.

The case of Kelly v. Roberts (40 N. Y., 432) is an authority in support of these views. In that case Roberts, who had purchased a stock of goods from Everett & Jones, promised, in writing under seal, to pay for the same at an agreed price. After the sale was complete and the goods were delivered, Roberts, the purchaser, agreed with the sellers, Everett & Jones, to pay a part of the purchase money to certain of their creditors, and by the arrangement was to retain in his hands a sufficient portion of the purchase-money for that purpose. Before such payment was made by Roberts, other creditors of Everett & Jones sued out an attachment against their property, and-Roberts’ obligation was seized and levied upon, and Kelly, the sheriff, brought an action upon the original promise of Roberts, as contained in his covenant, and in the litigation the question presented was whether the promise of Roberts made prior to the attachment to pay particular creditors was binding upon him and constituted a defense to the action ? It was held that his promise not being based upon any new consideration, was not valid and obligatory, and the creditors whose debts he had promised to pay had no legal claim against him; that his parol promise vras simply an executory contract without consideration and was not enforceable, and if Everett & Jones had sued the defendant upon his covenant for the price of the goods, he could not defend by proof of such prior parol agreement. It was remarked by the eourt that bad Everett & Jones and the defendant Roberts made it a condition of the sale of the goods of the former to the latter, that the defendant should pay a designated part of the purchase-price to the creditors whose debts Roberts afterwards agreed to pay, then the case would have fallen within the principles laid down in Lawrence v. Fox, viz., where a promise is made upon a valid consideration to one person for the benefit of another, the latter may maintain an action thereon.

'In no view which,can be taken of the evidence did the plaintiff make a case tending to show that he had a cause of action against the defendant, and the nonsuit was properly granted.

The judgment and order should be affirmed, with costs.

Present — Smith, P. J., Habdin and BabKEE, JJ.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: BARKER, J.: HaediN, J.:

license: Public Domain

text:
    GEORGE B. CARTWRIGHT, Appellant, v. THE CANANDAIGUA GAS-LIGHT COMPANY, Respondent.

      Game law — deposit of deleterious substances in a stream, or lake — when it is ajn, offense —1879, chap. 534, sec. 25.
    The twenty-fifth section of chapter 534 of 1819, entitled “An act for the preservation of moose, wild deer, birds, fish and other game,” provides that “no person, association, company or corporation, shall throw or deposit, or permit to be thrown or deposited, any dye-stuff, coal-tar, refuse from gas-houses, saw-dust, lime or other deleterious substance, or cause the same to run or flow, into or upon any of the rivers, lakes, ponds, streams, or any of the bays or inlets adjoining the Atlantic ocean within the limits of this State. Any person who shall violate this section, or any member of any such company, association or corporation, who shall authorize and direct any such violation, shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of fifty dollars for each offense. But this section shall not apply to streams of flowing or tide-water, which constitute the motive power of the machinery of manufacturing establishments where it is absolutely necessary for the manufacturing purposes carried on in such establishments to run the refuse matter and material thereof into such stream.”

      Held, that the word “person ” included a corporation, and that a corporation is liable, in its corporate capacity, to the penalties prescribed for a violation of the provisions of the act.
    That it was not intended to make the throwing or depositing of any of the substances named in the act into a stream or lake, without regard to its size, or the quantity of water it contained, an offense; but that to constitute a violation of the act, the quantity of the substances so thrown or deposited in the body of water must be such as to have the effect of destroying the lives of the fish, or of disturbing, in 'some degree, their habits.
    Appeal from a judgment of the Ontario County Court, reversing a judgment in the plaintiff’s favor recovered in a Justice’s Court for fifty dollars, being one penalty given by chapter 534 of the Laws of 1879, entitled “ An act for the preservation of moose, wild deer, birds, fish and other game.”
    The only section of the act necessary to be noticed is the twenty-fifth, which is as follows: “No person, association, company or corporation shall throw or deposit, or permit to be thrown or deposited, any dye-stuff, coal-tar, refuse from gas-houses, saw-dust, lime or other deleterious substance, or cause the same to run or flow into or upon any of the rivers, lakes, ponds, streams or any of the bays or inlets adjoining the Atlantic ocean, within the limits of this State. Any person who shall violate this section, or any member of any such company, association or corporation, who shall authorize .and direct any such violation shall be guilty of a misdemeanor, and in addition thereto shall be liable to a penalty of fifty dollars for each offense, But this section shall not apply to streams of flowing or tide-water which constitute the motive power of the machinery of manufacturing establishments where it is absolutely necessary for the manufacturing purposes carried on in such establishments to run the refuse matter and material thereof into such stream.”

      A. S. Baker, for the appellant.

      W. II. Adams, for the respondent.
   BARKER, J.:

The defendant’s gas factory is located on -.the bank of a small stream or brook which flows into Canandaigua lake. The refuse substances resulting from a distillation of coal in generating gas by means of pipes and other conduits is carried to, emptied in and mingled with the waters of this stream. The volume of such refuse matter wbieb has been from time to time cast into this stream cannot be very definitely ascertained from the evidence, but it appears to have varied in quantity and continued for several months prior to the commencement of this action.

This act of the defendant clearly amounts to throwing and depositing in the stream the refuse arising from its manufacture of gas. There has been a literal violation of the restraining clause of the statute. The defendant claims that it is not liable in its corporate capacity for the penalties imposed, for the reason that it is not embraced within the phrase any person,” as used in designating the parties made liable for the payment of the penalties. As corporations, associations and companies are by special designation embraced within the restraining clause, there is no room for doubt that it was the intention of the legislature to impose upon them the pains and penalties of the act if they'should be guilty of a violation of its provisions. It has been frequently adjudged in penal statutes that corporations are included within the word “person” where it is manifest that such was. the intention of the legislature. (People v. Utica Ins. Co., 15 Johns., 358; La Farge v. Exchange Fire Ins. Co., 22 N. Y., 352.)

A more doubtful question arises, whether under all the proofs a case has been made out establishing that the defendant has been guilty of violating the meaning and purpose of the statute so as 'to incur the penalty. There is no evidence, not the least, that the waters of the stream or of Canandaigua lake, into which it flows, have been polluted in such a degree by reason of throwing the refuse matter of the gas factory into the same as to become deleterious and destructive to the life or disturbing to the habits of fish. The proofs presented upon the subject came from the defendant and tended to prove that fish continued to frequent the stream and were not killed or disturbed by reason of permitting the refuse matter to escape therein.

It is manifest that the language of the statute cannot be taken literally, because the throwing or depositing of any of the many substances mentioned into a stream or lake, however small the quantity or large the,body of water, would’be a technical violation of the language of the statute. To constitute a violation of the statute, the quantity of a material thrown into a body of water must bo such as to have the effect of destroying life or disturbing the habits of fish, in some degree, otherwise the statute would be absurd, harsh and absolutely unnecessary. JBy the language of the section it is manifest that it was the intention of the legislature that the acts prohibited must be such as to be deleterious in fact; that is, destructive of the life of fish. The adjective deleterious,” as used at the close of the prohibitory clause, has the effect, and we think such was the intention of the legislature in using the same, to limit and qualify the meaning of the previous general words of the paragraph. The common and generally accepted meaning of the word is, having the power of destroying or extinguishing life; that which is destructive, poisonous, pernicious; as deleterious plant or quality. (Webster.)

There is authority for saying that the phrase, as used, has the effect of qualifying the meaning of the previous parts of the sentence to the extent which we have suggested. In an action on a policy of life insurance, the defense rested on an alleged breach of warranty made by the assured in giving a negative answer to the following questions contained in his application: “Have the applicant’s parents, uncles, aunts, brothers or sisters been afflicted with consumption, scrofula, insanity, epilepsy, disease of the heart, or other hereditary diseases f” It was held that the word hereditary ” had the effect of limiting and qualifying the word “ insanity,” as previously used, so that it should have the same meaning as if the word “hereditary” had been inserted immediately preceding the word “ insanity,” with a view of qualifying and limiting its meaning. (Peasley v. Safety Deposit Life Ins. Co., 15 Hun, 227; Newton v. Mutual Benefit Life Ins. Co., 15 id., 595; Westover v. Ætna Life Ins. Co., Fourth Dept., unreported.) The word “ deleterious ” must have some meaning given to it, for it has been used by the legislature in describing the quality of the material which is prohibited from being thrown or deposited in the lakes or streams of the State. It is a maxim in construing penal statutes when general words are used, to restrain their meaning for the benefit of the person against whom the penalty is inflicted. (Dwarris, 736; Hall v. Siegel, 7 Lans., 206.)

It is the duty of courts to so construe statutes as to meet the mischief which the law was intended to remedy. The object and purpose of this statute is declared in its title; “ for the preservation of fish and other game.” Unless some act be done which has the effect in some degree of destroying fish or game, no penalty can be incurred by any one. In commenting upon a statute, penal in its character, Eabl, J., said: “ It cannot be doubted that the law-makers did not intend that this law should be applied in such cases; and yet they are within the letter of the law. The law-makers cannot always foresee all the possible applications of the general language they use; and it frequently becomes the duty of the courts in construing statutes to limit their operation so that they shall not produce absurd, unjust, or inconvenient results not contemplated or intended. A case may be within the letter of the law and yet not within the intent of the law-makers, and in such a case a limitation or exception must be implied. (L. S. and M. S. R. R. Co. v. Roach, 80 N. Y., 339, 344.)

Yery pertinently these observations are applicable to the construction of this statute and can be properly adopted in disposing of the case before us. The justice’s return states that it contains all the evidence given on the trial, and for the reason it does not appear that the quantity of coal-tar and other refuse material thrown into the stream by the defendant from its factory is destructive to the life or disturbing to habits of fish, we hold that the plaintiff failed to prove a violation of the statute in this instance.

Judgment should be affirmed, with costs.

Smith, P. J., not voting.

HaediN, J.:

I concur in the opinion of brother Baeicer. This being a penal action the plaintiff should present clear and cogent evidence to bring his case clearly and completely within the letter and spirit of the statute. Because he did not make out his case according to such requirements of the rule in penal actions the judgment was properly reversed by the County Court.

Judgment of County Court affirmed.


author: BARKER, J.:

text:
    MERCY T. ROSS-LEWIN, Appellant, v. SARAH JOHNSON, Respondent.

      Sale of merchandise to he used for an illegal purpose — the sale is valid unless the setter aided in doing the wrongful act.

    It is no defense to an action brought to recover the purchase-price of whisky-sold by a dealer therein, to show that the purchaser, an inn-keeper, having no license, intended to sell the same by the glass in violation of the excise law, and that the seller knew that he had no license and intended to so sell the whisky purchased.
    The offense of selling liquor without a license is not a malum in se, but merely a malum prohibitum.

    Appeal from a judgment, entered upon a nonsuit granted at tbe Jefferson Circuit.
    Tbe action was originally commenced in the name of Jarvis Lord and William H. Ross Lewin who were merchants doing business in the name of Jarvis Lord & Co. By an order of the court, made previous to the trial, the appellant was substituted as plaintiff. The action is founded upon the defendant’s written guaranty of payment of all bills of liquor which Jarvis Lord & Co. might sell to John Johnson her husband. Jarvis Lord & Co. were merchants and dealers in liquor at Rochester, N. Y., and sold to Johnson, who resides in Brownville, Jefferson county, six barrels of whisky in three separate sales, two barrels each, and there is unpaid on these several bills the gross sum of $205.81. The defense is interposed that the contract is void, for the reason that Johnson purchased the goods with an intention on his part to sell the same, without license, in violation of the license laws. The facts upon which this defense is based are set forth in a written stipulation which states: “ That upon delivery of the liquor to Johnson, the same was sold and retailed by him in his business as inn-keeper in quantities less than five gallons at a time, the same being sold by the glass to be, and was drank upon his premises without having a license therefor. That the vendors knew at the time the agreement or guaranty was executed by the defendant and at the time of the sales to Johnson that he was engaged in the business of keeping a hotel, and as part of such business sold and retailed intoxicating liquors in quantities less than five gallons at a time, to wit, by the glass, the same to be drank on his premises.
    That the liquors in question were sold and delivered in packages, such as the sellers used when dealing with their regular customers. It was also admitted that the vendors had knowledge at the time of such sale that Johnson had no license to .sell liquors in quantities less than five gallons, to be drank upon his premises, and that the liquors were purchased by J ohnson for the purpose of being used in his business of hotel-keeping.

      Edmund B. Wynn, for the appellant.

      Brien cfc Emerson, for the respondent.
   BARKER, J.:

The contract for the sale of the liquors by Jarvis Lord & Co. to Johnson was lawful in every respect. They were merchants dealing in goods of this character, and in this transaction they did not violate any law of the land. On delivering the goods to the purchaser the contract was completely executed, and the title to the liquors passed from them to Johnson, the .purchaser. It is admitted that the vendors Imew at the time of the sale that it was the purpose of the purchaser to sell the liquors in violation of the excise laws, but it is not pretended that they did any act, in addition to the sale, in aid or furtherance of the unlawful purpose of the purchaser.

Tlie question presented is whether the prior knowledge by a vendor of merchandise that the purchaser intends to make an unlawful use of the articles sold will prevent a recovery of the purchase-price. It is now well settled by the authorities in this State that it will not. The precise question was presented and decided in Tracy v. Talmage (14 N. Y., 162), where the court laid down this proposition : “ That it is no defense to an action brought to recover the price of goods sold that the vendor knew that they were bought for an illegal purpose, provided it is not made a part of the contract, that they shall be used for that purpose, and that provided also, that the vendor has done nothing jn aid or furtherance of the unlawful designs. * *• * I think it clear in reason, as well as upon authority, that in a case like this, where the sale is not necessarily per se a violation of law, unless the unlawful purpose enters into and forms a part at the contract of sale, the vendee cannot set up his own illegal intent in bar of an action for the purchase-money.” This statement of the law remains undisturbed and unquestioned, and has been frequently referred to since by the same court with approval.

In Arnot v. Pittston and Elmira Coal Company (68 N. Y., 558) the rule of law on the question before us was stated to be the same as laid down in Traoy v. Talmage, and substantially in the same language, to wit: “A vendor of goods may recover for their price, notwithstanding that he knows that the vendee intends an improper use of them, so long as he does nothing to aid in such improper use or in the illegal plan of the purchaser.”

An English case, Hodgson v. Temple (5 Taunt., 181), directly in point may he cited, which gives the law in England on the same question. In this case a buyer of spirituous liquors was known to be carrying on a rectifying distillery and a liquor shop at the same time contrary to law. The vendors of the spirits were allowed to recover the price. Sir James Mayfield said: “ The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment, but to effect that it is necessary that the vendor should be a sharer in the illegal transaction.” In other English cases the same rule of law is stated, some of them being cited and commented upon and approved in Tracy v. Talmage (supra).

The learned counsel for .the defendant cites us to the cases of Hull v. Ruggles (56 N. Y., 424) and Arnot v. Pittson and Elmira Coal Company (68 id., 558) in support of his position, that the sellers areparticeps criminis with the purchaser in his illegal purpose and transactions. On a careful examination of these cases it will be observed that in each instance the suit was to recover the contract price of goods sold, the court holding that the contract in terms was to do an unlawful and illegal act. The court at the same time remarking that the cases were distinguishable from Tracy v. Talmage, and the law as there stated approved.

It is also argued in behalf of the defendant that the case before us should be distinguished from the cases cited for the reason that the illegal act contemplated by the vendee was malum in se and not merely malum prohibitum. It is a sufficient reply to be made to this suggestion to say that the offense of selling liquor without a license by an inn-keeper is not malum in se. 'It was not an indictable offense at common law for an inn-beeper to supply his guests with drinks for a price. An offense malum in se, is one which is naturally evil as adjudged by the sense'of civilized communities, such as murder, arson, theft and the like. (Bouv. Dict.; Hanauer v. Doane, 12 Wall., 342). • As the purchaser was liable on his contract to pay the purchase-price to the seller, the defendant as his guarantor is also liable upon her promise.

At the time the plaintiff was substituted as a party in the place of the original plaintiffs the action was at issue, and a written stipulation had been entered into between the parties admitting the sale to Johnson, and that there was unpaid $205.81. The present plaintiff was substituted on her own petition, in which she set forth her title to the cause of action, and upon due notice to the defendant an order was made granting'the substitution.

On the trial the plaintiff gave in evidence the petition and order as evidence of her ownership of the cause of action. There was no amendment of the complaint after the substitution setting forth an assignment of the cause of action to the present plaintiff. In the motion for a nonsuit the point was made that the complaint did not show the cause of action in the plaintiff, and it had not been proved .that she was the assignee and owner of the same. The respondent insists that upon these grounds the nonsuit should be sustained. The petition and order were properly received in.evidence, and in the absence of any proof to the contrary they established that the present plaintiff is the owner of the cause of action sued upon. Smith v. Zalinski, (26 Hun, 225) affirmed in the Court of Appeals January, 1884.

Judgment reversed, nonsuit set aside, new trial granted, with costs to abide the event.

Smith, P. J., and Hardest, J., concurred.

So ordered.


author: Smith, P. J.;

text:
    ELLEN HENDERSON, Respondent, v. JAMES SCOTT, Appellant.
    Judgment— to operate as a bar, it must be pleaded as such.

    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict rendered at the Oswego Circuit, and from an order denying a motion for a new trial on the minutes.
    The action was brought for mesne profits or rental value of real estate, after the recovery of a judgment in an action of ejectment. The complaint alleged that the plaintiff owned in fee and was entitled to the possession of one undivided seventh of certain lots in the city of Oswego described in the complaint; that the defendant without the consent of the plaintiff entered into the possession of the same in April, 1868, and has ever since occupied the same and received the rents and profits thereof, which were of the yearly value of $150 over and above taxes, and that in 1878 the plaintiff commenced an action in this court against the defendant to recover the possession of said premises, in which issue was joined and tried before a referee, and the plaintiff recovered a judgment decreeing that she was the owner and entitled to the possession of said premises, and that she is now in the possession of the same.
    The defendant by his answer denied the complaint and pleaded, first, that if the'plaintiff is the owner and entitled to the possession of said premises she is, and has been for twenty years, such owner as tenant in common with the defendant and those from whom he derives title, his share being six undivided sevenths of said lots; and secondly, in substance, that the defendant, and those under whom he claims, have made permanent improvements on said lots with the consent and acquiescence of the plaintiff, exceeding in value the amount of tbe plaintiffs claim, which they will set off against her claim. Some other defenses were set up which are not material to the questions involved in this appeal. The plaintiff replied denying the alleged counter-claim and pleading the former judgment, and also thp statute of limitations,-in bar tlier-eof.
    At the trial the plaintiff put in evidence the judgment-roll in the former action, which showed that such an action was commenced in January, 1878, and that the plaintiff in her complaint therein alleged, among other things, that the defendant wrongfully occupied the premises about fifteen years, and during that time, without the plaintiff’s consent, received the rents and profits thereof, which were of the yearly value of fifty dollars, and that in her complaint she demanded judgment for the possession of the premises and also for $500 damages for the withholding of the same as above stated. The defendant denied the withholding of the possession and that he had received the rents and profits. The record also showed that the referee found, among other things, that the defendant went into possession of the premises in March, 1868, and had remained in possession ever since, and that the rental value of the premises was $ 120 per year over and abqve taxes; and that the plaintiff was entitled to recover six cents damages for the withholding of the premises, and was not entitled to recover any portion of the value of the use and occupation of the premises because not claimed in the complaint. Judgment was entered accordingly.
    The court at General Term said: “ The defendant’s counsel contended at the trial, and now claims, that whether or not the referee erred in holding that the plaintiff was not entitled, under her complaint, to recover for the value of the use and occupation, the judgment is a bar to her claim to recover theiefor- in this action. That position cannot be taken by the defendant for the reason that he has not pleaded the judgment 'in bar. The defense- of a former recovery may have been admissible, in an action like the- present one, under the general issue prior to the Code. (Young v. Rummell, 2 Hill, 478; Beebe v. Elliott, 4 Barb., 457.) But since the Code it must be specially pleaded. (Old Code, § 149-; New Code, § 500; MeKyring v. Bull, 16 N. Y, 297, 307 ;■ Brazill v. Isham, 1 E. D. Smith’s R., 437; S. C. affirmed, 12 N. Y., 9;: Hendricks v. Decker, 35 Barb., 298.) In Brazill v. Isham the fact of the award of arbitrators, which was claimed by the defendant to be a bar to the action, was set np in tlie complaint, as is the former judgment here, but it not having been pleaded as a bar it was held that the defend-, ■ ant could not insist upon it as such.” * " * *

      B. B. Burt, for the appellant.

      J. A. Hathway, for the respondent.
   Opinion by

Smith, P. J.;

IIaedin and Baekeb, JJ., concurred.

Judgment and order affirmed.


author: Haedin, J.;

text:
    OBADIAH STEPHENS, Appellant, v. PETER CORNELL, Respondent.

      Bvidence — when a party, seeking to enforce a claim, which originally existed against a person who has since died, is competent to testify as to personal transactions between himself and.such deceased person in respect to such claim — Code of Oivil Procedure, sea. 829.
    Appeal from a judgment of the Steuben County Court reversing a judgment of a Justice’s Court in favor of plaintiff for twenty-three dollars.
    The plaintiff proved an account against the defendant which he had alleged in his complaint. The defendant had set up an account which accrued in his favor against the father of the plaintiff during the lifetime of the latter, and alleged that in consideration of property conveyed to the plaintiff by the other heirs-at-law of the father, the plaintiff had undertaken and agreed to pay the debts of the father, including the debt which the -defendant held against him. Upon the trial the defendant sought to establish such counter-claim. In his efforts to do so he offered himself as a witness as to transactions with the deceased, in order to prove such indebtedness. The plaintiff objected thereto upon the ground that the defendant was not a competent witness under section 829 of the Code of Civil Procedure. The justice refused to receive the evidence.
    The court at General Term said : “ The plaintiff was not a party, as an executor or administrator, or heir-at-law, of his father. ' He sued in his own right. Defendant’s counter-claim was not against the plaintiff as executor or as heir-at-law. But it was against him in bis individual personal capacity. Therefore section 829 had no application. (Hall v. Richardson, 22 Hun, 444; Hatter of Accounting of Frazer, 92 N. Y., 247.) Plaintiff is not made a party deriving title or interest from, through or under a deceased person. If he covenanted to pay a debt held by the defendant, he was liable because of the covenant. (Burr v. Beers, 24 N. T , 178; Lawrence v. Fox, 20 id., 268.) It was not a liability as an heir-at-law. The other heirs-at-law might have made a similar arrangement with a stranger, to the blood of the deceased, and then the indebtedness of the father might have been shown, to which the covenant to pay would attach. Whether the plaintiff was liable to pay the debt held by the defendant depended upon his personal promise, made at the time a fund was put in his hand by the heirs-at-law of the deceased, and 'which the plaintiff agreed to apply in liquidation of the indebtedness of his deceased father. Plaintiff, “ in performing that agreement, would have done nothing more than to pay his own debt in the manner in which he had agreed to pay it.” (Judge Rapallo’s opinion in Garnsey v. Rogers, 47 N. Y., 241.) * * *

      P. J Hallett, for the appellant.

      Burrell c& Robinson, for the respondent.
   Opinion by

Haedin, J.;

Smith, P. J., andBARKER, J., concurred.

Judgment of County Court affirmed.


text:
    MARY POWER and PATRICK HIGGINS, as Administrators, etc., of JOHN POWERS, Plantiffs, v. NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Defendant.

      Negligence — liability of a master for. injuries occasioned to a servant by defective machinery — when the questions as to negligence, and, contributory negligence, should, be left to the jury.

      ■ Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term after a nonsuit directed at the circuit.

      Tbe plaintiffs, as administrators of John Powers, deceased, seek to recover óf tbe defendant tbe damages occasioned by its negligence in causing tbe death of tbe intestate near Dale on tbe 2d day of February, 1882. Tbe deceased was a laborer working in a gang of men in the etnploy of defendant engaged in repairing tbe defendant’s track under tbe supervision of one Kenneday, who for years had been engaged as foreman in repairing a section of the defendant’s track. Kenneday' employed and discharged tbe men and controlled their operations, giving directions as to what tools they should use and when and how they should use the hand-car upon the section. At the time of the injury the hand-car was defective. About two weeks before the accident one of the wooden handles with which the car had been provided' when the deceased commenced work became broken, and remained so up to the time of the accident to the knowledge of Kenneday the foreman. In its place a pick-handle was used part of the time, and part of the time an iron crowbar about five feet and a-half long, to supply the place of the wooden handle. The bar was used when the men were propelling the car along the track. It was smaller in diameter than the socket'of the walking-beam through which it was inserted and played up and down, the force of the men laid out upon the bar being delivered irregularly upon the walking-beam. This beam gave way while the deceased and others were propelling the car, and the deceased being precipitated upon the ground suddenly the car ran over him causing the injuries from which he died.
    The court at General Term said: “Whether the deceased was guilty of contributory negligence or not was a question of fact for the jury. It was the duty of the defendant to furnish and keep in repair suitable machinery, implements and hand-cars which it required the deceased to use. ( Wright v. W. Y. O. R. R. Go., 25 N. Y., 562; Lani/ng v. N. Y. C. R. R. Go., 49 id., 521; Flike v. B. and A. R. R. Go., 53 id., 549; Corooran v. Holbrook,-59 id., 519; Gone v. L>., L. and W. R. Go., -81 id., 208; Kain v. Smith, 25 Hun, 146; affirmed 89 N. Y., 384; Randall v. Baltimore and Ohio R. R. Co., 29 Alb. Law Jour., 150, and cases cited in the opinion of Gray, J.) After the hand-car was broken the defendant’s foreman, with knowledge of its disabled condition, continued it in use and required the men to operate it. It might have been found as a fact that he knew the danger of sucb use, and that the deceased did not know or appreciate the danger from such use of it. {Kain v. Smith, supra.) ‘ The fact that the deceased knew, or ought to have known, that there was some danger does not excuse the master if the danger was greater than the servant in the exercise of due care had reason' to anticipate, and .the amount of the danger and the circumstances that led the servant to incur it are proper questions for the jury.’ (Wood’s Master and Servant, 760; Kai/n v. Smith, 89 N. Y., 385.)
    “ The court ought not to have said as a matter of law that plaintiffs intestate was guilty of contributory negligence. {Staclcus v. The 1Y. Y: G. and II. B. B. B. Go., 79 N. Y., 464; Kain v; Smith, supra.) Whether the injuries were the result of the defendant’s neglect of duty was a question of fact for the jury. {Kain v. Smith, supra ; Gone v. D., L. cmd W. B. Go., supra.)

    “We think both branches of the case should have been submitted, to the jury; and that the learned circuit judge fell into an error when he undertook to decide them, or either of them, as matter of law.”
    The motion for a new trial should be granted.

      M. E. (& E. M. Bartlett, for the plaintiffs.

      E. G. Sprague, for the defendant.
   Opinion by

Haedin, J.;

Smith, P. J., concurred; BARKER, J., dissented.

New trial ordered, costs to abide event.


author: Bareer, J.

text:
    MARY PRITCHARD, Appellant, v. SARAH DRATT and Others, Respondents.

      Partition — the omission of a plaintiff to allege that the pao'ties do not own, any other . land in common in this State is not a ground of demm'rer — General Buie Wo. 65— effect of a failure to comply with it.

    Appbaí from a judgment, entered upon a décision of the Wayne County Court sustaining a demurrer to the plaintiff’s complaint.
    The action was brought for the partition of lands located in the county of Wayne which are described in the complaint as one parcel. All tbe defendants join in a demurrer wbicb is interposed upon tbe grounds that it appears from- tbe face of tbe complaint that tbe same does not state facts sufficient to constitute a cause of action. •
    Tbe court at General Term, after overruling one of tbe grounds upon wbicb the demurrer was interposed, said: “ Tbe complaint alleges that three of tbe defendants who are tbe children of Abram M. Dratt, deceased, are infants. Upon this averment the defendants base another argument in support of their position, that tbe complaint does not state a cause of action, for tbe reason that there is a want of. an averment that tbe parties to tbe action do not own other lands in common as required by tbe last paragraph of the sixty-fifth standing rule of tbe court. Tbe rules of tbe court do not give nor can they take away or abridge a right of action secured to tbe parity by tbe common or statutory law of the land. There is no provision in tbe statute relative to the partition of lands among tenants in common, wbicb requires that all tbe lands owned by tbe parties to tbe action as joint tenants, or tenant in common, shall be embraced in one suit.

      “ Section 1532 provides ‘ where two or more persons bold and are in possession of real’ property as joint tenants or as tenants in common, vin wbicb either of them has an estate of inheritance or for life or for years, any one or more of them may maintain an action for tbe partition of the property according to tbe respective rights of tbe persons interested therein.’
    “ It was not tbe purpose of tbe rule to establish a rule of pleading, or to deny a partition in any case if all tbe lands owned by tbe parties, as tenants in common, were not made tbe subject of partition in tbe pending suit.' If such was tbe aim of tbe rule then tbe court was without power to make it, for tbe reason that it exacts as a condition to granting relief that which tbe statute does not demand. Tbe object of the rule is to protect parties from tbe burden and annoyance of a multiplicity of suits when they are tenants in common of several tracts or parcels of land, lying within this State, and if an action should be brought by one of the tenants in .common for a partition of a separate parcel he might be charged with all tbe costs of tbe suit unless tbe same was with tbe consent of tbe other parties in interest: tbe last paragraph requiring that when infants are interested and made parties, tbe petition shall state whether or not tbe parties owned other lands in common, was inserted for the purpose of having the fact appear on the face of the pleading, and so be less likely to escape the attention of the court when disposing of the question of costs. At most an omission to make an averment in compliance with the rule is a mere irregularity in procedure which cannot be taken advantage of by demurrer.”

      Wm. Roe, for the appellant.

      Goolce dk Ray, for the respondents.
   Opinion by

Bareer, J.

SMith, P. J., and Hardin, J., concurred.

Judgment reversed, demurrer overruled and judgment ordered for the plaintiff on the demurrer, with costs of the demurrer and of this appeal, with leave to the defendant to answer .on payment of costs.


author: Barker, J.

text:
    Lydia Miller, Appellant, v. Thomas McBlain, Executor, etc., Respondent.

   Judgment affirmed. Opinion by

Barker, J.


text:
    Regina Zorn, Respondent, v. Joseph Zorn, Appellant.

   So much of the order as grants the weekly allowance reversed with leave to renew, and the remainder of the order affirmed, without costs to either party. Opinion by

Bareer, J.


author: YanN, J.,

text:
    The People of the State of New York ex rel. Dennison Jones and Roger Williams, Appellants, v. Levy Shaul and others, as Referees, etc., Respondents.

   Order affirmed on the opinion of

YanN, J.,

at Special Term, with ten dollars costs and. disbursements.


author: Smith, P. J.

text:
    Patrick Crowley, Appellant, v. Robert Miller, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.


author: Hardin, J.

text:
    Adolphus St. Peter, Appellant, v. Silas F. Smith, Respondent.

   Judgment affirmed. Opinion by

Hardin, J.


text:
    Stephen F. Bowling, Appellant, v. Joab L. Clift, as sole Survivor, etc., Respondent.

   Judgment affirmed. Opinion by

Barker, J.


text:
    Daniel O. Salmon, Respondent, v. Philander Fobes, Appellant.

   Judgment reversed and a new trial ordered before another referee, costs to abide event, unless the plaintiff stipulates to reduce the judgment as indicated in the opinion, in which case the judgment as so modified is affirmed, with costs to the respondent. Opinion by

Smith, P. J.


text:
    Mary Oyer and another, Respondents, v. Simon Oyer, Appellants, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    James Robler and others, Respondents, v. Alice L. Gallentine, Appellant, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Smith, P. J.


text:
    In the Matter of the Judicial Settlement of the Account of Gilbert A. Wood, as Executor, etc., of John Wood, Deceased.
   Declined to be considered and parties permitted to withdraw the case with leave to apply to the surrogate to make and file his decision in accordance with section 2545 of the Code. Mem. by

Hardin, J.


author: BarKer, J.

text:
    August Siegrist, Respondent, v. John A. Holloway and Edward W. Everson, Appellants.

   The portion of the order appealed from reversed, with ten dollars costs and disbursements. Opinion by

BarKer, J.


text:
    Eugene F. Benham, Respondent, v. Charles W. Van Clief, Trustee, etc., Appellant.

   Judgment reversed and new trial ordered in Seneca County Court, with costs of this appeal to abide event unless the plaintiff stipulates to reduce the damages by deducting thirty-seven dollars and forty-three cents and interest from March 1, 1878, in which case the judgment as so modified is affirmed, with costs. Opinion by

Smith, P. J.;

Hardin, J., dissenting.


text:
    Henry E. Ripley and Reuben Reeves, as Overseers, etc., Appellants, v. John McCann, Respondent.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Amelia Plopper, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Order affirmed, with costs. Opinion by

Hardin, J.


text:
    Susan A. Smith, Appellant, v. Enos Merritt, Respondent.

   Order affirmed, with costs. Opinion by

Barker, J.


text:
    Rhoda Ann Stokes, Appellant, v. Silas Pease, Respondent.
   Judgment affirmed, with costs. Opinion by

Hardin, J.


text:
    William H. Stack, as Overseer, etc., Respondent, v. Adaline Lansing, Appellant.

   Judgment affirmed on the opinion of the county judge.


text:
    Thomas P. Saunders, Appellant, v. Simon Auyer and others, Respondents.

   Judgment of the County Court reversed and that of the justice affirmed. Opinion by

Barker, J.


text:
    Thomas P. Saunders, Appellant, v. Milton Luther, Respondent.
   Judgment of County Court reversed and that of the justice affirmed. Opinion by

Barker, J.


author: ÍCardin, J.

text:
    Eleazor A. Williams, Respondent, v. Joseph Barton and another, Appellants, Impleaded, etc.

   Judgment affirmed. Opinion by

ÍCardin, J.


author: Barker; J.

text:
    Garrett Ammerman and another, as Overseers, etc., Appellants, v. Clara Kall, Respondent.

   Judgment of the County Court and that of the justice reversed. Opinion by

Barker; J.


text:
    Jesse Barto and another, Respondents, v. Jora G. Stephan, Appellant.

   Judgment affirmed. Opinion by

Smith, P. J.


text:
    Guilford Harris, Respondent, v. Peter W. Lyman and another, Appellants.

   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Smith, P. J.


author: BaeKee, J.;

text:
    Manly Loomis, Appellant, v. Allen E. Kilby, Respondent.
   Judgment affirmed. Opinion by

BaeKee, J.;

HaediN, J., not sitting.


text:
    Arthur B. Guinnip, Plaintiff, v. Hiram Close, Defendant.

   New trial denied 'and judgment ordered for plaintiff on the verdict. Opinion by

Smith, P. J.


author: Babeeb, J.

text:
    VALENTINE Cropsey, Respondent, v. Philetus R. Perry, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Babeeb, J.


text:
    Alice Lake, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   ’Judgment and order affi'rmed. Opinion by

Smith, P. J.;

Babeeb, J., not sitting.


author: Habdin, J.

text:
    Susanna Schomer, Plaintiff, v. The City of Rochester, Defendant.

   -New trial denied and, judgment ordered for plaintiff on the verdict. Opinion by

Habdin, J.


text:
    Edmund Earl, Respondent, v. Porter P. Collins, Appellant.

   Judgment and orders affirmed. Opinion by

Smith, P. J.


text:
    George P. Norton, Appellant, v. Lewis Yerdon, Respondent.
   J udgment of the County Court reversed and that of the justice affirmed. Opinion by

Smith, P. J.


text:
    Frank M. Barnes and others, Respondents, v. Amasa P. Hart, Appellant.

   -Judgment modified as indicated in the opinion, and as modified affirmed, with costs to the respondent. Opinion by

Hardin, J.


text:
    Catherine Murphy, as Administratrix, etc., Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Judgment and order affirmed. Opinion by

Habdin, J.


text:
    James G. McCartney, Respondent, v. The City of Rochester, Appellant.

   Judgment and order affirmed. Opinion by

Habdin, J.


text:
    Henry E. Ripley and another, as Overseers, etc., Appellants, v. John Little, Respondent.

   Judgment of the County Court affirmed. Opinion by

Smith, P. J.


text:
    Elliot L. Gray, Appellant, v. Charles E. Smith, Respondent.

   Judgment affirmed. Opinion by

Habdin, J.


author: BARKER, J.

text:
    Georgiana E. Emery, Respondent, v. Alexander M. Lowry, Appellant.

   Judgment 'affirmed, with costs. Opinion by

BARKER, J.


text:
    Gates Wildman and another, Executors, etc., Appellants, v. Jacob Lucksinger, Respondent.

   Judgment affirmed, with costs.


text:
    James Cunningham and others, Respondents, v. Pauline F. Hoyer, Appellant.

   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Barker, J.


author: Hardest, J.

text:
    Milton Stafford, Appellant, v. Stephen H. Blood, Respondent.

   Judgment affirmed. Opinion by

Hardest, J.


text:
    Frederick Haake, Respondent, v. Frank Reynolds, Appellant, Impleaded, etc.

   Declined to be considered, the papers contained in the appeal book not being certified.


author: MurwiN, J.,

text:
    Mary B. Lyon and others, Respondents, v. George M. Botchford, as Survivor, etc., Appellant.

   Order affirmed on opinion of

MurwiN, J.,

at Special Term, with ten dollars costs.


text:
    William D. Tabor, Appellant, v. The Board of Supervisors of the County of Erie, Respondent.

   Orders denying motion for new trial reversed and new -trial ordered, costs to abide event. Ojfinioü by

Smith, P. J.;

Barker, J., not voting.


text:
    The National Exchange Bank of Auburn, Appellant, v. John Venemans, Respondent, Impleaded, etc.

   Order reversed and new trial granted, costs to abide event. Opinion by

Barker, J.


text:
    Edward F. Adams, Appellant, v. Hiram U. Robeson, Respondent, Impleaded, etc.

   Judgment of County Court affirmed. Opinion by

Hardin, J.


text:
    Harriet C. Knapp, Respondent, v. The Northwestern Mutual Life Insurance Company, Appellant.

   Order reversed, verdict set aside and new trial ordered, costs to abide event; Opinion by

Smith, P. J.;

Barker, J., not sitting.


author: Hardin, J.;

text:
    Charles Fincke and others, as Executors, etc., Plaintiffs, v. The City of Buffalo, Defendant.

   New trial ordered, costs to abide event. Opinion by

Hardin, J.;

Barker, J., not sitting.


author: Smith, P. J.;

text:
    Amelia Smither, Respondent, v. Elias L. Bissell and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Smith, P. J.;

Barker, J., not sitting.


text:
    John Garwood, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Hardin, J.


text:
    Margaret Hertle, Respondent, v. James Holland, Appellant.

   Judgment affirmed. Opinion by

Hardin, J.


text:
    Horace V. Howland v. Jeremiah Krom and others.
   Order affirmed, with ten dollars costs and disbursements.

Barker, J., not voting.


text:
    Mary Zimmer, Appellant, v. Harvey J. Lewis, Respondent.

   Order affirmed with disbursements only.

Smith, P. J., not voting.


text:
    Augusta W. Frary, Appellant, v. The Orleans County National Bank, Respondent.

   Judgment affirmed. Opinion by

Hardin, J.;

Barker, J., not voting.


author: SMITH, P. J., and Hardin, J.;

text:
    Rufus A. Sibley and others, Respondents, v. Lucy T. Killom and another, as Executors, etc., Appellants.

   Judgment and order affirmed. Opinions by

SMITH, P. J., and Hardin, J.;

Barree, J., dissenting.


text:
    The People of the State of New York, Respondent, v. John O’Brien, Appellant.

   Appeal dismissed, order staying proceedings vacated and the judgment appealed from in all things affirmed and directed to be executed.


text:
    The People of the State of New York v. Edward F. Clark.
   Motion to dismiss appeal granted and judgment affirmed and ordered to be executed unless defendant serves printed ■ papers required by the rule on or before the fifteenth of May next, in which case the motion is denied.


text:
    In the Matter of the Probate of the Will of Charlotte E. Hewett, Deceased.

   Motion to dismiss appeal denied, with ten dollars costs and disbursements.


text:
    In the Matter of the Probate of the Will of Albert H. Lapham.
   Motion granted with leave to apply at Special Term for appointment of special guardian for such of the parties ..to be brought in as are infants, and ordered that service of this order be made upon said parties in the mode prescribed by the Code for the service of a summons to commence .an action. The form -of this order to be settled by the presiding justice on five days’ notice.


text:
    Mary J. Combs, Appellant, v. Benjamin F. Bowen, as Administrator, etc., Respondent, Impleaded, etc.

   Motion denied.


text:
    In the Matter of the Petition of D. Cameron Hyde, an Attorney, etc.
   Motion denied.


text:
    Julia A. Carpenter, Respondent, v. Eldred Lott, Sheriff, etc., Appellant.

   Motion for reargument and for leave to appeal to the Court of Appeals denied.


text:
    Horace B. Claflin and others, Respondents, v. Monroe Madison, Appellant, Impleaded, etc.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Byron E. Dodge aud others, Respondents, v. William Herspool, Appellant.

   Order reversed, with ten dollars costs and disbursements. Held, that the answer set up a counter-claim connected with the subject of-the action, within the meaning of section 501 of the Code of Civü Procedure, and as the sum demanded exceeded fifty dollars the appellant was entitled to a new trial in the County Court. (22 Hun, 49; 88 N. Y., 258.)


text:
    Phœbe T. Smith, as Administratrix, Respondent, v. John Ferguson and another, Appellants.

   Order affirmed, without costs.


text:
    Cyrus H. Wilbur and another, Respondents, v. Asa T. Soule, Appellant.

   Order affirmed, with ten dollars costs and disbursements.


text:
    Alexander Hitchcock, Appellant, v. Charles W. Sears, Respondent.

   Order affirmed, with ten dollars costs and disbursements. Held, that as the evidence is conflicting as to whether the assignment to the wife was absolute or collateral the decision of the county judge that it was absolute was conclusive, and she being the absolute owner of the claim is liable for the costs of the proceedings prosecuted for her benefit independently of the statute.


text:
    Ralph T. Wood, Respondent, v. Jane Holmes, as Executrix, etc., Appellant.

   Motion denied, without costs.


text:
    Martin Russell, Appellant, v. Orville Dean, Respondent.
   Motion for leave to appeal to the Court of Appeals denied.


text:
    Phœbe T. Smith, Administratrix, Respondent, v. John Ferguson and another, Appellants.

   Motion to dismiss appeal granted, with ten dollars costs.


text:
    In the Matter of Laying out a Highway through the Orchard, etc., of Helen Allerton.
   Order confirmed.


text:
    Henry Brinker, Appellant, v. William Millbright, Respondent.

   Motion to dismiss appeal denied, without costs.


author: Peatt, J.:

text:
    CHARLES OLSON, Appellant, v. WILLIAM P. CLYDE, Respondent, Impleaded, etc.

      NegKgence — the owner of a ship is not liable for injures occasioned to a sailor through the negligence of the mate.

    The complaint in this action stated that the plaintiff on September 29; 1880, was a common seaman on a steamer owned by the defendants, which was then in charge of the captain and mate; that the plaintiff and another sailor were directed by the mate to pay out a hawser, which could not safely be done by one man; that while engaged in this work the mate directed the sailor assisting the plaintiff to leave the hawser and go to another part of the steamer; that although the plaintiff protested and told the mate that it was impossible for him to manage the hawser alone, and that it would endanger his life to try to do so, the mate persisted in ordering his companion to leave him; that there.after, in despite -of the plaintiff’s exertions, his leg became entangled in the hawser and was torn off; that the accident would not have happened if the fellow servant had not been taken away, and that it was caused wholly by the negligent and wrongful acts of the defendants’ officers.

      Meld, that as it appeared that the plaintiff’s injuries were occasioned by the negligence of a fellow-servant, the' mate, the defendants were not liable for the damages sustained.
    Appeal from a judgment, entered upon an order sustaining a demurrer to the complaint.
    Tbe action was brought by the plaintiff against the defendants, the owners of a line of steamships, to recover damages for an injury sustained by him while in theif employ as a common seaman.

      Tbe complaint alleged, among other things, that on the 29tb ■day of September, 1880, this plaintiff was in their employment as a sailor or common seaman, on one of said steamships known as the ‘‘Benefactor,” which sailed between the cities of New York and 'Wilmington, North Carolina; that as such sailor or seaman, it was his duty, and he was bound to perform any work or service relating to the management or sailing of said ship, which the captain or mate thereof should direct him to perform. That it was also the duty of defendants to employ on board of said ship a captain and mate or masters of the requisite skill or knowledge to direct the seamen in the management or navigation of the said ship. It was also the duty of the defendants to employ a sufficient number of seamen to perform the duties- which fhe masters might lawfully, reasonably, and safely require of them; that on the said 29th day of September, 1880, the said steamship was being moved from one pier in the city of Brooklyn to another about one mile therefrom; that for that purpose it was made fast to a steam-tug’by a line running from said steam-tug to the stem of the steamer; that said steam-tug was in motion towing thé steamer from the dock; that in addition to the said line connecting it rvith the tug a large hawser, known as a ten-inch hawser, was fastened to a spile on the dock and the other end was upon the bow of the steamer near a cleat, the bow being about twenty feet distant from the dock, away from which the steamer was moving. At that time the said steamer was in charge of the captain and first mate, who, with the other officers and sailors, including the plaintiff, were upon the deck of said steamer, .giving orders and directing the sailors what to do in and upon said steamer; that then and there the said first mate directed plaintiff and another sailor named Benson, to go to the bow and take up said hawser and to wind it or take turns of it about the cleat or bit to check the too rapid movement of that end of the steamer, so that the stern might gradually swing around and the steamer get into proper position for being towed in a direct line; that said particular service.could have been easily and safely performed by two sailors assisting each other, but one alone and unaided-’ could not have safely undertaken to perform it; that it required one of said sailors to wind the hawsei*' around the cleat or bit and the other to take hold of that portion of the hawser which lay. loose upon the deck, so as to’prevent-it from twisting and to keep it paying out in a direct line. The said plaintiff and Bensen obeyed the orders of the said mate, the plaintiff winding the said hawser around the cleat or bit, and holding it so as to gradually slacken the movement of the steamer, and the said Bensen assisted the plaintiff by holding on to the said hawser behind him and by also holding and guiding the loose end of the hawser so as to keep it -paying out in a straight line and prevent it from curling around or about the feet of the men. While the plaintiff and said Bensen were so engaged, and the steamer was straining heavily in moving from the dock, and the hawser was gradually slipping or paying out through the plaintiff’s hands, the said mate directed the said Bensen to drop his end of the hawser and go to another part of the steamér. .Thereupon the said plaintiff and the said Bensen ■ protested against the plaintiff being left alone, and called the attention of the said mate to the fact that it was impossible for plaintiff to manage the hawser by himself, and that if plaintiff was compelled to stay there alone it would endanger his life; that thereupon the said mate disregarding the protests of the plaintiff and said Bensen, carelessly, negligently and wrongfully insisted upon said Bensen leaving. That said Bensen, in obedience to the instructions of said mate was forced to leave and did leave and let his end of the hawser fall upon the deck behind plaintiff; that plaintiff thereupon used his utmost strength and skill to keep the hawser from his feet so as not to be entangled by it, but was unable to do so by reason of the force with which the steamer was straining from the dock,_ which required all of plaintiff’s efforts to prevent it from slipping through his hands around the- cleat too rapidly; that by a sudden movement of the steamer the said hawser was drawn more rapidly through his hands, and notwithstanding plaintiff’s strongest efforts to prevent an injury, the other end of the said hawser which had been dropped by said Bensen was forcibly and violently wound and twisted around his right leg. ' Thereupon the said plaintiff used his best efforts’to disentangle himgelf, but in spite of his most strenuous efforts the said hawser was tightly drawn around his leg and plaintiff was drawn against the bit and his leg was entirely torn off; that said accident would- not have happened if said Bensen had been permitted to -assist plaintiff;' that said injury was wholly caused through the negligence and wrongful acts of the defendants’ officers, and that plaintiff was entirely free from and guiltless of any negligence, unskillfulness or wrong whatever.
    The demurrer was interposed upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

      Adolphus D. Pape, for the appellant.

      E. O. Boardman, for the respondent.
   Peatt, J.:

It is argued for the appellant that as the master of the vessel is alleged to have been on deck superintending affairs at the time the negligent order was given, his assent and approval must be assumed and the order be regarded as his own. This by no means follows. It is not alleged that the master had personal knowledge of the order complained of. It is not possible for the officer in charge of the deck of a steamer to personally hear every order given on a distant part of the vessel. If in fact he heard it and ratified the order by his silence, that should have been distinctly alleged by the pleader if deemed material.

It is argued that as plaintiff was a seaman, bound to obey the orders of his superior officers and liable to punishment by law if he refused obedience, he is removed from the operation of the rule that, he cannot recove r for the negligence of a co-employe.

Although the peculiar relations of the common seaman to his superior officers may relieve him from being charged with contributory negligence in obeying an order which 'exposes him to peril, we do not think the effect of these relations extends so far as to enable him to recover for the negligence of a co-employe.

The master of a vessel may be the alter ego of the owners, but the mate, when the master is on board, is not an alter ego. Though of superior grade and with power to compel obedience, he is yet a fellow servant, and for his negligence a co-employe cannot recover. The general rule is still in force and the action must therefore fail. (Wright v. N. Y. Central Railroad, 25 N. Y., 565.)

The judgment should be affirmed.

Present— BaeNAed, P. J., DykmaN and Peatt, JJ.

Order sustaining demurrer to plaintiff’s complaint affirmed, with costs.


text:
    In the Matter of the Probate of the last Will and Testament of DAVID M. CHAUNCEY, Deceased.

      Praetice — trial of an action at a Special Term in case of the disability of the surrogate— Code of Oiml Procedure, sees. 2545, 2486 — Bequests for findings — power of the justice to allow them to be made after the case has been submitted— General Buie Wo. 82.
    An application to admit the will oí D: M. Chauncey, deceased, to probate was tried before a Justice of the Supreme Court, the surrogate being a subscribing witness to the will and thereby disqualified from hearing and determining the question raised by the contestant. On October 8, 1883, before the case had been finally decided, the parties met before the justice and the respondent stated that he desired to submit certain requ ests to find, and asked for time to do so. The justice then stated, in the presence of the appellant, that the requests might be handed in and that he would pass upon them as of the date of-signing the decree. Judgment was granted on that day and filed on October tenth. On October twenty-fifth requests to find were submitted, and thereafter the same were with the judge’s allowance and disallowance, by an • order dated November 12, 1883, directed to be filed nunc pro tuna as of October eighth.
    Held, that even if the practice was in any respect irregular, the appellant had waived his right to object thereto by acquiescing in the arrangement made by the justice.
    The requirement of Rule 82 of the General Rules of Practice, that “all requests to find facts or conclusions of law must be made in writing to the judge or referee before whom the trial was "had, at or before the time of the submission of the action for decision,” may be waived by the consent of the parties and the approval of the judge who tries the case.

      It seems, that the provisions of section 2545 of the Code of Civil Procedure, authorizing either party upon the settlement of a case in an action tried before a surrogate to request a finding upon any question of fact, or a ruling upon any question of law, are applicable to actions tried before a Special Term of the Supreme Court, as provided in section 2486 of the said Code, in cases where the surrogate is disabled from acting. (Per Pratt, J.)
    Appeal from portions of an order made at a Special Term.
    Tbis was an application to have tbe will of David M. Chauncey admitted to probate. The surrogate of Kings county was a subscribing witness and thereby disqualified from acting. Tbe trial was had before Mr. Justice Brown at Special Term, and concluded on tbe 20th of July, 1883. Judgment was granted October eighth, and filed October tenth. On the 25th of October, 1883, “ requests to find ” were submitted by the respondent, which “ requests to find,” together with the judge’s allowance and disallowance marked thereon, were, by an ex parte order, dated November 12, 1883, directed to be filed nurto pro tuna, as of the eighth of October. The appellant made a motion to vacate said ex parte order, and to have the requests to find stricken from the proceedings herein. . The motion to vacate the said order was granted on the ground that’ after a decision rendered upon the trial of an action by the court the judge had no power to pass upon requests to find; but the motion, to strike the findings from the proceedings was denied, on the ground that in this case the court possessed the powers conferred upon the Surrogate’s Court by section-2486 of the Code of Civil Procedure, ■ and that when the case came to be settled the judge would be governed by the practice in the Surrogate’s Court, and could thus pass upon them, so that there was no necessity of now striking them from the record. This appeal is taken from the denial of the motion to strike the “ requests to find ” from the record.

      Wm. 8. Cogswell, for George W. Chauncey, respondent and appellant.

      John G. Agar and J. Noble Hayes, for the respondents, Libbie ■ Chauncey and others.
   Peatt, J.:

The legislature seems to have considered that in disposing of such controversies as are adjudicated in the Surrogate’s Court, that the magistrate should be allowed, in the preparations of his findings, the benefit of such deliberation as may occur between the time of his decision and the final settlement, of the case upon appeal. ( Code, § 2545.) There is no reason why a judge of the Supreme Court in deciding similar controversies should be denied the same power.

The Code provides (sec. 2486), that the Supreme Court at Special Term performing the surrogate’s duties, shall possess all his powers. Nor does section 2490 of the Code, which provides that the special proceeding must be entitled in that court (i. e., Supreme Court) and the papers therein must be filed or recorded -as the case may be, and issues thereon must be tried as in an action brought in that court,” prevent the judge from exercising the power which a surrogate could exercise in such case, for the reason that the submission of findings is not necessarily a ■ part of the trial. A trial is the examination before á competent tribunal, according to the laws of the land, of the facts put in issue for the purpose of determinihg such issue. The trial ends when the-case is submitted for determination. (Mygatt y. Willcox, 35 How., 410.) But under section 1023. of the Code, it will be observed that the proposed findings may be submitted, after the case is submitted for decision, within such time as the court or referee may allow. Hence, submission of findings is not necessarily a part of the trial, and is not covered or controlled by the words in section 2494, “ must bfe tried as in an action brought in that court,” because these words refer only to the trial.

Aside, however, from any question arising upon a construction of the Code, we think the order should be affirmed upon the ground that in legal contemplation the requests were submitted prior to the decision, and that the appellant is estopped from asserting that they were not so submitted.

It appears that on the 8th of October, 1883, before a final decision of the case, the" parties met before the judge, when the respondent stated that he desired to submit requests to find, and requested time to do so. The justice then stated in the presence of the appellant, that requests might be handed in, and he would pass upon them as of the date of signing the decree. The decree was signed with that understanding. This was binding upon the appellants. They cannot be* heard now to object when it appears that they acquiesced in the arrangement made, by which the contestants were to consent to the signing of the decree, and thereby have the right' to send in requests to find afterwards, and to have them passed upon as of that date. The Rule No. 32, as to time of submitting requests to find, can undoubtedly be waived by consent of parties and the approval of the’judge who tries the case. The proponents were not injured by this order. Had it not been understood that the requests might-be handed to the judge and passed upon as of that day, an adjournment would have been had to allow the contestants to comply with the rule.

The request to adjourn was withdrawn upon the assurance before stated, and tbe proponents availed themselves of the benefits secured thereby, without in any manner objecting to the arrangement. Assuming, therefore, for the purposes of this decision that the practice was irregular, or even that it comes within the prohibition of Rule 32, yet the appellants have waived their right to insist upon the objection.

The order should be affirméd, with costs and disbursements.

Present — BarNARd, P. J., DtKmaN and Pratt, JJ.

Order affirmed, with costs and disbursements.


author: DtKmaN, J.:

text:
    IRENE UNDERHILL, Appellant, v. THE POUGHKEEPSIE SAVINGS BANK, Respondent.

      Sawings bank— liable to a depositor for amounts paid on forged orders — when the bank is not 'entitled to credit for deposits made by the forger in the name of, and subsequently di’awnfrom the bank by the pa/rty whose name was forged.

    The plaintiff having deposited with the defendant, a savings bank, $400, drew therefrom upon her order the sum of $200 and loaned the same to her attorney. Subsequently the attorney drew, out the other $200 upon forged orders and surrendered the plaintiff’s pass-book to the defendant. Thereafter he deposited $150 to the plaintiff’s credit, procured a new pass-book to be issued and delivered it to her. After having drawn out this $150 the plaintiff brought this action against the defendant to recover the $200 drawn out on the forged orders and the accrued interest thereon. The Judge directed that the $150 so drawn out by the plaintiff should be applied as a payment upon the balance due to her upon the first account.

      Held, that this was error.
    .Appeal from an order reducing the amount of a verdict of a jury, and from tlie judgment entered in accordance with the said verdict.

      Franle Hasbrouclc, for the appellant.

      B. E. Taylor, for the respondent.
   DtKmaN, J.:

The plaintiff deposited $400 with the defendant; $200 of this sum was loaned to her lawyer and drawn out on her order. Then he drew the other $200 on forged' orders and surrendered her passbook. After that he deposited with the defendant to the credit of the plaintiff $150 and procured a new pass-book in her name containing the credit which he delivered to her. She drew out this sum of $150 and brought this action for the recovery of the $200 not drawn by her and the accrued interest. The jury rendered a verdict for the full amount, but the trial judge reserved the question as to the application of the $150 deposited by the plaintiff’s lawyer; and subsequently made an order deducting it from the verdict, and judgment was entered accordingly. This order was erroneous. When the plaintiff deposited her money with the defendant their relations was that of debtor and creditor. The bank owed her $400. She drew out $200 and the other $200 remained in the bank. That never was drawn our by her and the bank remained all the time her debtor in that amount. That indebtedness could not be discharged by .a payment to a lawyer on a forged order and a fraudulent surrender of the pass-book. So when afterwards the lawyer deposited $150 to the credit of the plaintiff the bank owed her $350. She drew out $150 of this sum and left the amount for which the jury rendered the verdict.

- When the plaintiff received the $150 from the bank which the lawyer had deposited, it was a payment on the $200 she lent him, and he remained 'her debtor in the sum of fifty dollars, while he still owes the bank $200, for which they can maintain an action now.

The order appealed from should be reversed, with ten dollars 'costs and disbursements, the judgment entered should be vacated and judgment entered on the verdict for the plaintiff, with costs.

BaüNARd, P. J\, and Peatt, J. concurred. .

Order reducing verdict and judgment thereon reversed, with costs and disbursements and judgment ordered upon the verdict.


author: Dyrman, J.:

text:
    In the Matter of the Judicial Settlement of the Account of HARFORD B. KIRK, as Executor, etc., of GEORGE W. RICHARDSON, General Guardian, etc., Appellant, v. ANNIE M. RICHARDSON and LEWIS P. RICHARDSON, Respondents.

      Will — when the devisee takes an estate in fee — tenancy by the curtesy,

    A testator devised to his daughter “all of the remaining property which I may have, after my estate has been settled and all the above legacies complied with, to her and her child, or children. Should the said Ada E. P. Richardson (the daughter) die without leaving any child or children, then the above legacy to be given to Q-. W. Richardson (her husband), to him and his heirs forever." The proceeds of the property received under the will were invested by the ’ daughter in the purchase of a house in which she lived with her children and her husband, both of whom survived her, and in which, after her death, the husband continued to live until his death.

      Held, that under the will the daughter took an estate in fee simple absolute in the property devised to her, and that her husband was entitled to an estate as tenant by the curtesy in the house purchased therewith.
    Appeal from a decree of the surrogate of Westchester county upon the accounting of the executor of the last will of George W. Richardson, deceased.

      George W. Miller, for Kirk, executor, appellant.

      M. G. Hart, for the respondents.
   Dyrman, J.:

This proceeding was instituted before the surrogate of Westches-ter. county, by David Cromwell as the general guardian of Annie M. Richardson and Lewis P. Richardson, minors, to compel Harford B. Kirk, the executor of George W. Richardson, deceased, who was the former general guardian of these two minors, to give an accounting of the proceedings of the former guardian, and to compel the payment of the money in the hand of the deceased, at the time of his death, belonging to these two minors.

The rights of these two infants depend on the construction of one of the provisions of the last will and testament of Lewis Perry. They are these: “ Second. I give and bequeath to Ada E. P. Richardson, wife of G. W. Richardson, all of the remaining property which I may have after my estate has been settled and all the above legacies complied with, to her and her child or children. Should the said Ada E. P. Richardson die without leaving any child or children, then the above legacy to be given to G. "W. Richardson, to him and his heirs forever.” These minors are children of G. W. and Ada E. P. Richardson. The testator died in 1866; one of these children was born before his death and one after. Mrs. Richardson died in 1870.

The language employed to create a life estate is not found in this will, and such an estate cannot be implied from the absence of the words heirs or assigns, because such words are no longer requisite to the conveyance of an estate in fee. (2 R. S. [6th ed.], 1130.) By the common law Mrs Richardson, under this will, would have taken a fee tail, and now by our statute that is adjudged a fee simple, and as no remainder was limited on it, it became a fee simple absolute. (2 R. S. [6th ed.], 1100.)

Mrs. Richardson invested the proceeds of the property received under the will in a house and lot in Morrisania, the title to which she took in her own name. Here she resided until the time of her death with her husband and these two children. He acted as the guardian of these children and continued to occupy the same premises until his death in 1881.

The claim now is that the estate of the father is largely indebted to these children, and among other' things for the use and occupation of these premises, and the surrogate in the decree appealed from has charged the estate of the father with the rent of , the premises from the death of his wife until his death in May, 1881. This finding excludes the rights of the husband as tenant by the curtesy, and the principal question involved is whether he became such tenant.

The facts on which the solution of this question is dependent are beyond dispute. They were husband and wife, and she was seized in fee of the premises. She had children born alive and she died intestate seized of the premises, and left her husband surviving. No other factors are necessary under our law to constitute tenancy by the curtesy. It follows that the estate of Richardson is not chargeable with the rent of these premises, as he had the right to their use as tenant by the curtesy, and the decree should be reversed and the proceedings remitted to the surrogate to proceed with the accOuntii on these principles; no costs.

Barnard, P. J., and Pratt, J., concurred.

Decree of surrogate reversed, with costs.


author: TEMAN, J:

text:
    JOHN JACOBSON, as Stockholder, etc., Appellant, v. TH DOTY PLASTER MANUFACTURING COMPANY, LE M. BATES and Others, Respondents.

      Supplementary proceedings — they need not be instituted in the judicial district in wfo the action was tried.

    It is not necessary that proceedings supplementary to execution should he pro cuted in the judicial district in which the action was tried and the judgmc entered. They may he instituted before a justice of the Supreme Court another district, and an order appointing a receiver may he there made hy hi
    Appeal from an order made by the court at Special Term, in t first judicial district in the above entitled action, and entered in Kin county on November 27, 1883, appointing a receiver of the .app lant, a judgment-debtor, in proceedings supplementary to executio
    The judgment upon which the supplementary proceedings we instituted was recovered in Kings county. An order to exami: the judgment-debtor was made by the Hon. Charles Donohue, o of the justices of the Supreme Court, in New York county, and t judgment-debtor was examined in the said county before a refer pursuant to the said order. After the termination of the pi ceedings before the referee he made his report, and the attorney f the judgment-creditors thereupon served upon the attorneys for t judgment-debtor a notice of motion to be made to the court at Special Term for the appointment of a receiver of the said jud ment-debtor, and on the day noticed for the motion the ord appealed from was made by the court at a Special Term and directi to be entered in Kings county.

      Carpenter <& Roderick, for the appellant.
    ' S. F. Kneelcmd, for the respondents.
   TEMAN, J:

This is an appeal from an order appointing a receiver in proceed-gs supplementary to execution. The odjection is that tbe order ,n only be made in the judicial district where the action was tried hich was the second, and this order was made in the first district. This objection is invalid. The supplementary proceedings in ds case were instituted and concluded before a judge of the Supreme ourt in the first judicial district, and it was proper for him to ipoint the receiver.

The order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Order appointing receiver affirmed, with costs and disbursements.


author: DyKmapt, J.: . BarNakd, P. J:

text:
    WILLIAM H. STOOTHOFF, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      'ight of town auffurrities to appoint flagmen at railroad crossings — -1871, chap. 609, sea. 4 — liability of the company foi' the wages of the flagmen — right of an assignee to enforce the liability — when the company cannot object that there was no proof as to the value of the services.

    ection 4 of chapter 609 of 1871 requires every railway corporation operating a railway by steam power to station flagmen at all places where the railway crosses a public highway on the grade thereof, when required so to do by the supervisor and highway commissioners of the town. In case the company neglects to station flagmen at such crossings the highway commissioners are required to appoint them, and the wages of such flagmen, “ not exceeding three dollars per day,” are to be recovered from the company in an action brought by the supervisor, or his successor in office, or by such flagman, in any court of this State.

      Teld, that the right of action conferred by the statute upon a flagman so appointed was assignable, and that the assignee might maintain an action against the company thereon.
    Jpon the trial of an action, brought to recover wages for services rendered by a flagman so appointed, proof of the contract between him and the highway commissioners was offered, but subsequently excluded or withdrawn upon the defendant’s objection. No proof of- the value of the services rendered was given. In charging the jury the judge said that they could fix the rate of the daily compensation at any sum, not more than three dollars per day. To this no exception was taken.

      Reid, that the failure of the defendant to except was a waiver of his right to question the finding of the jury as to the value of the services upon the ground ’that no evidence as to such value had been given. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of the justice before whom tbe action was tried.
    Tbe action was brought to recover the value of tbe services' rendered by flagmen, appointed by tbe commissioners of highways of tbe town of New Lots to be stationed at places where the line of tbe defendant’s road crossed highways upon tbe grade, within said town.
    Upon the trial the plaintiff was called as a witness and was aslredy among other questions, the following: “ Did anybody tell you how much a day you were to have? [Objected to by defendant as immaterial.] The Court — Q. Does not the statute fix the amount ? Counsel for the defendant said he thought it did not. Counsel for plaintiff said he was not sure whether the statute meant actually to fix three dollars per day as the amount, and it might be safe to-recover on quantum meruit. Question waived for the present.”' No proof of the value of the services was subsequently given. When the evidence was closed the defendant moved to dismiss the complaint upon the ground, among others, “ that there was no evidence of the value of the services.” The motion was denied. The court said, in its charge, “ these men are entitled to recover their wages, to use the language of the statute, not exceeding three dollars a day, that is, you cannot allow them more than three dollars a day. * * * You are to determine, as a question of fact, what were the fair wages. You can fix any sum, either the amount, named or less than that.”

      E. O. Sprague, for the appellant.

      W. J. Q-aynor, for the respondent.
   DyKmapt, J.: .

Section 4 of chapter 609 of the Laws of 1871 reads as follows . “It shall be the duty of every railway corporation operating a railway by steam power in the county of Kings, to station a flag-man by day, or signal-man by night, at all places where such railway crosses a public highway on the same grade thereof, whenever so reqiiired by the supervisor and highway commissioners or a majority of them, of the town where such crossing is located. And in case of the neglect or refusal of said railway corporation to station a flag-man or signal-man at any crossing within ten days after such requisition, it shall be the duty of such highway commissioners to appoint such flag-man or signal-manand the wages of such flag-man or signal-man so appointed by said commissioners, not exceeding three dollars per day, may be recovered from said railway corporation in an action brought by such supervisor, or his successor in office, or by such flag-man or signal-man, in any court of this State.”

Following this law the supervisor and commissioners of highways of the town of New Lots in Kings county served a notice in writing on the defendant requiring it to station flag-men by day and signalmen by night at all places where its railway crosses a public highway in that town, on the same grade as such highway, and designating New Jersey avenue, Yermont avenue, Schenck avenue, Smith avenue, Cypress avenue and Eldert avenue as such highways. The defendant failed to comply with the requirement and the commissioners of highways appointed the plaintiff and three others to serve as flag-men and signal-men at these crossings. ■ They all served six days each, and this action is brought to recover for such service. Two of the men assigned their claims to the plaintiff. The jury has found the value of the services, and if the law is to be executed there seems to be no other manner of doing so. The statute provides for the action in the name of the flag-man or signal-man, and as the claim is for services there is no reason why it may not be assigned. The value of the services was properly left to the jury.

The judgment should be affirmed, with costs.

BarNakd, P. J:

A right of action carries with it the right to assign. The statute gave the right to recover for services rendered, upon the appointment of the highway commissioners, against the defendant upon its neglect to appoint. The only serious question in the case is the failure by the plaintiff to prove the value of the services. The statute provides that it shall not exceed three dollars per day. The offer to prove a contract was overruled or withdrawn upon the objection of the defendant. The defendant moved for a nonsuit upon the ground that there was no such proof given, but when the judge charged the jury that they could fix the rate of the daily compensation at any sum, not .more than three dollars per day, no exception • was taken. This was a waiver of the question and the finding concludes the defendant.

In the case of Leeds v. The Metropolitan Gas-Light Company (90 N. Y., 26) there was an excejition to the charge which left the question to the jury to assess the value of time without proof of its value. The judgment should be affirmed, with costs.

Peatt, J., dissented on the ground that “ by some oversight there is no proof whatever of value or any contract proved.”

Judgment and order denying new trial affirmed, with costs.