text:
    SILAS D. GIFFORD, as Receiver of J. M. MASTERTON, etc., Respondent, v. JOHN McCLOSKEY, Archbishop of New York, Appellant, Impleaded with the FATHER MATHEW TOTAL ABSTINENCE BENEFIT SOCIETY and Others.

      Assumption of a mortgage by a grantee — an acceptance of ike deed by kirn must be shown— when the party assuming to pay the mortgage cannot question the validity of the deed under which he claims.

    Pursuant to an order of the Supreme Court certain premises owned by a Father Mathew Total Abstinence Benefit Society were sold, subject to a mortgage, now owned by the plaintiff, to one Father John McEvoy who, in the deed, and as a part of the consideration thereof, assumed the payment of the mortage. McEvoy entered into possession of the premises and subsequently conveyed the same to Cardinal McOloskey, by a deed, by the- terms of which the grantee assumed the payment of the said mortgage. The deeds to McEvoy and Cardinal McOloskey were both duly recorded.

      Held, that as McEvoy entered into possession of the premises, and thereafter conveyed the same, and as no interference with the possession by himself or hia grantee was shown, his executors could not resist a judgment for any deficiency that might arise, "on account of any alleged irregularities in the conveyance to him.
    That in the absence of any evidence of the acceptance of the deed by Cardinal McOloskey, other than the record thereof, it was error to hold him liable for any deficiency that might arise upon a sale under a foreclosure of the mortgage.
    Appeal by the defendants Thomas P. O’Connor, as executor of John McEvoy, deceased, and John McOloskey, archbishop, etc., from so much only of the judgment as orders a deficiency judgment against them in a suit to foreclose a mortgage.
    In 1869 the defendant the Father Mathew Total Abstinence Benefit Society, No. 1, the owner of the mortgaged premises, mortgaged the same to John M. Masterton to secure $5,200 and interest, and by general assignment of Masterton, and proceedings thereunder and by virue of an order appointing a receiver in an equity suit to set aside the assignment, the plaintiff obtained title to the bond and mortgage in suit. The Supreme Court, by order dated December 9, 1810, authorized the sale of the mortgaged premises, and the society conveyed by deed to John McEvoy, who in the deed assumed payment of the mortgage debt “ as part of the consideration hereof.” The deed was duly recorded and Father John McEvoy entered into possession of the land. Fáther John McEvoy afterward granted the mortgaged premises, with other land, to Cardinal John McCloskey, archbishop of New York, who in tne deed to him assumed payment of the mortgage debt “ as part of the consideration hereof.” The deeds were both duly recorded in the register’s office, and were read in evidence from the records. The appellants resist the payment of the mortgage, the payment of which they assumed in the deeds under which they claim title. It was shown by testimony that under the deed to Father McEvoy, the mortgagor delivered to M^n possession of the mortgaged premises, and that he took possess!*» thereof, and there is no evidence that it was ever restored to the mortgagor or that the grantees of the mortgagor were ever evicted.
    After the filing: of the complaint and the findings in this action the executor of McEvoy executed an instrument by which he released the defendant McCloskey from the assumption of the debt on the mortgage,

      E. G. Boardman, for J ohn McCloskey, appellant.

      T. G. Barry, for O’Connor, executor, etc., of John McEvoy, appellant.

      Balph, E. Prime, for the respondent.
   Pratt, J.:

One of the issues' in the cause was as to whether defendant McCloskey ever accepted the conveyance to him of the premises foreclosed upon, and upon this issue plaintiff had the burden of proof» ¥e find no evidence in the case upon that subject. It does not appear that the deed was delivered to him or that he ever entered into possession of the premises, exercised dominion or authority over them or made any claim under the conveyance to him placed upon the record. Inserting his name n the deed and placing it upon record would not create a liability on his part. (Best v. Brown, 25 Hun, 224; Day v. Mooney, 6 T. & C., 382.) In some cases a presumption of acceptance might arise where acceptance would be for the benefit of the grantee, but no such argument can be used here, as the incuznbz’ances are shown to be equal to the whole value of the estate. As the answer contained a distinct averment that defendant never accepted nor' knew of the conveyance the-plaintiffs were well apprised of the necessity of evidence upon that, issue.

The defense of defendant O'Connor, as executor of McEvoy,. rests upon the alleged invalidity of the conveyance to his testator, from which it is argued that no consideration existed for his assuming the mortgage.

The case of Parkinson v. Sherman (74 N. Y., 88) decides that where the grantee’s possession under the deed is undisturbed, be cannot resist the claim of the mortgagee to enforce the covenant to assume the mortgage debt. In the case at bar McEvoy entered upon the premises, assumed control and executed a conveyance puz’porting to convey them. No interference with the possession is shown, nor can any be reasonably appz’ehended. The assuming of the mortgage was the consideration upon which the property was conveyed and has been enjoyed. Established legal principles forbid any relief to the estate of McEvoy. As to Archbishop McCloskey, the judgment appealed from should be revez’sed, without costs, with leave to plaintiff to discontinue as against him, without costs. Iu other respects judgment affirmed, with costs.

Barnard, P. J., conczzrred; Dykman, J., not sitting.

Part of judgment appealed from reversed as to McCloskey, without costs, and affirmed in other respects, without costs.


source: Caselaw Access Project

author: Barnard, P. J.: Dtkman, J.

license: Public Domain

text:
    DANIEL WEBBER, Appellant, v. WINFIELD PIPER and Another, Respondents.

      Negligence — a servant cannot recover for an injury caused by a risk incident to the business in which he is employed.

    This action was brought to recover damages sustained by the plaintiff because of an injury to his hand caused by a circular saw at which he was working while in the employment of the defendants. The saw was out of set, and he had so informed the defendants’ foreman, who told him that he could not then attend to it but that it would be attended to at noon, and instructed him to go on with his work. The injury was thereafter occasioned by reason of the saw being out of set.

      Held, that it was proper to nonsuit the plaintiff. (Dykman, J., dissenting.)
    Appeal from a judgment, entered upon the dismissal of the complaint at the circuit.
    The plaintiff sued for damages alleged to have been caused by defendants’ negligence. Plaintiff was a wood sawyer in the defendants’ employ, and was injured while tending a steam saw. The saw was, in the ordinary course of its use, “ set ” or sharpened every day or two by defendants’ foreman. This was part of the ordinary management of the shop. At the time of the accident the saw had not, plaintiff claimed, been “ set ” for over a week; and because of the failure to set it, plaintiff claimed that he was injured. The saw itself and all the machinery, were admitted to be good. Nor was any of it out of repair. It was proved that one Myers was in charge of the machinery and attended to repairing it, and was in the custom of sharpening those saws. The plaintiff testified that when on the morning of the accident he asked Myers for another saw and complained of its being out of set, the latter replied that “ he was too busy to sharpen a saw,” and that Myers “ asked me to hurry up,” and said, “ I will see what I can do for you at twelve o’clock.”

      James 0. Glrnreh, forjthe appellant.

      Edward M. Shepard, for the respondents.
   Barnard, P. J.:

There was no defect in the saw beyond the fact that it was out of set. This is of constant occurrence when the saws are being used. The plaintiff asked that the saw be set and he was told in substance that it would be done at noon or be seen to at noon. The plaintiff with full knowledge that the saw was out of set, used it, and he' testifies that by reason of the saw being out of set he was injured. The risk was one incident to the business.

The judgment should be affirmed, with costs.

Peatt, J., concurred.

Dtkman, J.

(dissenting):

This is an action to recover damages ensuing from a personal injury. The plaintiff was in the employment of the defendants as a wood sawyer, and was injured while tending a saw driven or operated by steam. The complaint was dismissed on the trial at the close of the plaintiff’s case.

It appeared from the testimony introduced that the saw was out of order, and that the plaintiff had knowledge of the fact and requested the foreman on the morning of the accident to furnish a substitute as was the custom when a saw was out of set. The foreman said he was unable to have another saw ready for want of time, and directed him to hurry up and get the peddle out of the way and he would see what he could for the plaintiff at twelve o’clock. Then the plaintiff commenced to operate the saw which was dull and had no set, and he was in consequence obliged to push with greater force on the wood, when as he was doing so the saw caught and knocked the stick away and left the plaintiff’s hand in immediate contact with the teeth which cut off his thumb and forefinger. The binding of the saw or want of setting caused the injury.

The nonsuit seems to have been given on the theory that the injury resulted from the negligence of Myers in failing to sharpen and set the saw and continue the same in order. "Without pausing to determine the position of Myers, our conclusion is that the judgment cannot be sustained. It was the duty of the defendants to furnish safe and adequate machinery for the plaintiff ' and maintain the same in order, and they were bound to perform that duty as masters, and could not delegate its performance so as to exonerate themselves from liability. (Fuller v. Jewett, 80 N. Y., 46.)

Neither do we find the plaintiff chargeable with contributory negligence as a matter of law; while he knew the saw was out of set and likely to bind for that reason, yet he seems to have considered it capable of successful operation, as Myers did also. It does not appear that he knew the danger of injury was imminent, and the extent to which it was unfit or dangerous as bearing upon the negligence of both the plaintiff and the defendants was a ques tion of fact for the jury. Especially was this so in view of the fact that the plaintiff was directed to proceed and operate the saw just as he was doing at the time of the injury. (Hawley v. N. C. R. R. Co., 82 N. Y., 370.) The cause should have been submitted to the jury with proper instructions.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    JEREMIAH V. MESEROLE, Respondent, v. GARRIT FURMAN, Appellant.

      Inability of a party, discontinuing an action, for the costs and expenses incurred — right of a person, rendering services under the employment of a referee, to maintain an action against the plaintiff discontinuing the action for the value of the services so rendered — statute of limitations — when it begins to run.

    In an action brought by the present defendant, to procure the partition or sale of certain lands, a judgment for the sale of the property was entered, which directed the referee appointed to execute the judgment to employ a surveyor to lay the land out in lots, as he should deem for the best interests of all the parties, and to pay from the proceeds of the sale for the services so rendered. After the present plaintiff had, pursuant to the employment of the referee, made the requisite survey and map, the action was, upon the application of the plaintiff in the partition suit, the present defendant, discontinued, upon the condition that the plaintiff therein should pay all costs and expenses.
    In this action, brought by the surveyor against the present defendant, to recover the value of the services rendered by such surveyor:

      Held, that the defendant was liable to him therefor.
    That the plaintiff’s recovery was not limited to the statutory fees, but should be fixed by the jury in accordance with the value of the services rendered.
    That the statute of limitations did not commence to run against the plaintiff’» claim until the entry of the order of discontinuance.
    Appeal from a judgment in favor of the plaintiff, entered upon . the verdict of a jury.

      , Charles W. Blacky for the appellant.

      Jos. A. Burr, Jr., for the respondent.
   Dykman, J.:

In the year 1876 an action was commenced in the Supreme Court, by the defendant in this action, to procure the partition or sale of certain real property owned by him in common with his sisters, which eventuated in a judgment for the sale of the property. The referee appointed to execute the judgment was therein directed to-employ a surveyor and have the land laid out in lots and plots, as his judgment should dictate for the best interests of all the parties, and pay for the same out of the proceeds of the sale therein. Pursuant to this direction the plaintiff was employed to make the survey and lay out the lots, and he performed that service. After that service was completed the plaintiff in that action who is the defendant here, applied to the court for permission to discontinue that suit, and an order was thereupon made appointing a referee to determine the amount of the costs of the action and also what was a fair compensation to be paid by the plaintiff to his attorney therein, and directing further, that upon the payment of the defendant’s costs as reported, and also the costs of the plaintiff’s. attorney, the judgment should be set aside and vacated.

Afterwards an order was made at Special Term permitting the plaintiff to discontinue the action on payment of all costs and expenses, and that order was affirmed, on appeal. (Furman v. Furman, 12 Hun, 441.)

This action is now brought against the plaintiff in that partition suit to recover the value of “ the services of the plaintiff in this action ” in making the survey and laying out the lots under the-direction of the referee in that suit. The action proceeds on the ground of a devolution upon the defendant of the responsibility incurred by the referee, when he made the contract with the plaintiff for the performance of the service contemplated by the judgment in that action. The theory of the plaintiff being that in the procurement of the judgment in partition and the insertion therein of the provision for a survey of the land, the defendant undertook that the surveyor should be paid out of the proceeds of the sale under that judgment, and because he prevented the consummation of that sale which was to provide the fund for the payment of the plaintiff, he became personally liable for the payment of his claim.

The position of the plaintiff is fortified by the order of discontinuance procured by the defendant and used by him, with a provision that he should pay all costs and expenses in the partition suit. By obtaining that order and accepting its beneficial operations and effect, the defendant undertook, in legal view, to abide by and perform its provisions and the obligations it imposed. One of these obligations was to pay the expenses in the action, and the fees of the surveyor was one of the legitimate items of expense requiring payment under the order of discontinuance.

The present plaintiff was properly'employed by the referee and the legal effect of the order of discontinuance of the suit was to prevent the payment of his claim out of the proceeds of the sale under the judgment, and to impose a personal obligation for their payment upon the plaintiff in the partition suit, especially as the order was made on his application for his benefit and was accepted and acted upon by him.

The statute of limitations is not a bar to the action for the reason that no action accrued to the plaintiff against the defendant personally, until the entry of the order of discontinuance, which was less than six years before the commencement of this action.

The plaintiff should not be confined to statutory fees for the reason that he was employed to perform special services by the referee, with no reference to the statute, and the value of his services has been fixed by the jury at a much larger amount.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., for reversal.

Judgment affirmed, with costs.,


author: Barnard, P. J.:

text:
    ANNA MINGST, Appellant, v. HERMAN BLECK, Respondent.

      Answer — when a denial of each and every allegation not admitted is sufficient.

    In tbis action brought to recover damages for seduction under a promise of marriage, the complaint alleged in separate paragraphs, first, the promise of marriage; second, the plaintiff's readiness to marry; third, the defendant’s representation that he was unmarried; fourth, the seduction of the plaintiff under the promise of marriage; and fifth, the defendant’s refusal to marry. The answer first denied "each and every allegation in said complaint contained, except so much thereof as may be hereinafter admitted,” and second, admitted that he had an acquaintance with the plaintiff, but denied “ each and every other part of the fourth allegation in said complaint contained.”

      Held, that the denial was sufficient, and that a motion to have the answer made more definite and certain was properly denied.
    Appeal by tbe plaintiff from an order made at Special Term, denying a motion to make the answer more definite and certain.
    The action was brought to recover the sum of $10,000 damages for breach of promise to marry. The complaint alleges in five separate, but unnumbered paragraphs: the promise of marriage; the plaintiff’s readiness to marry; the defendant’s representation that he was unmarried; the seduction of the plaintiff under the promise of marriage; the defendant’s refusal to marry the plaintiff after the lapse of a reasonable time before the action and after request made. The answer reads as follows: “ First. He denies each and every allegation in said complaint except so much thereof as may be hereinafter admitted.” “ Second. He admits that he had an acquaintance with the plaintiff, but he denies each and every other part of the fourth allegation in said complaint contained.” After the service of the answer plaintiff moved to make the same more definite and certain, which motion was denied. The opinion of Mr. Justice Cullen is reported in 7 Civil Procedure Reports, 314, together with the proceedings had on such motion to make the answer more definite and certain.

      Leonard A. Oiegerioh, for the appellant.

      Thomas F. Magnor, for the respondent.
   Barnard, P. J.:

The case presented is very far removed from the class of cases which have been considered by the courts in respect to the sufficiency of the averments in an answer under section 500 of the Code. A denial of each allegation contrary to or inconsistent with the answer was held insufficient. (Hammond v. Earle, 5 Abbott N. C., 105.) Other cases are cited similar in principle to the above, where the answer in its scope and meaning left a doubt as to what was admitted and what was denied.

There a party had to determine a denial, by a determination whether the fact set up was avoided or was inconsistent with the answer or was expressly admitted by other parts of the pleading. The present answer leaves no room for doubt.

The complaint sets up a breach of promise of a marriage contract accompanied by seduction and the birth of a child. The answer denies each and every allegation of the complaint except such as are subsequently admitted. It then admits an acquaintance with the plaintiff but denies the entire fourth allegation beyond this. This allegation was the part of the complaint which averred the seduction.

The answer is a full and complete one. Except an admission that the defendant had an acquaintance with the plaintiff it denies every other allegation made by her. The order denying a motion to make it more definite and certain should be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concurred.

Order affirmed, with costs and disbursements.


text:
    THOMAS ANDERSON, as Executor, etc., of JOHN ANDERSON, Deceased, Respondent, v. BARBARA GOLDSMIDT, Substituted as Defendant, Appellant.

      Policy of life insurance — assignability of one taken on the life of a husba/nd for the benefit of the wife — 1879, chwp. 248 — the consent of the husband is shown by his joining in the assignment.

    Under chapter 248 of 1879 all policies of insurance issued within this State upon the lives of husbands for the benefit and use of their wives, are, with the written consent of the husband, assignable by the wife, as well when the wife has children as when she has not.
    The law does not provide any form of consent by the husband except that it be in writing, and it is sufficiently shown by his joining with his wife in the assignment of the policy.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe decision of the court, on a trial at Special Term without a jury.
    The action was brought against the Germania Life Insurance Company of New York to recover $1,000, the amount of an endowment policy issued by the defendant upon the life of one Joseph Goldsmidt, for the benefit of his wife Barbara Goldsmidt.
    The policy by its terms became due and payable May 31, 1885. On the 15th day of February, 1881, Joseph Goldsmidt and Barbara Goldsmidt, by an instrument in writing assigned the policy to one John Anderson, plaintiff’s testator, as security for the repayment of a loan of $800 made to the assignors. Before answering, on defendant’s application it was permitted to pay into court the amount claimed, with interest, and Barbara Goldsmidt, one of the assignors of the policy, was duly substituted as defendant in the action. Her answer sets up the defenses that the assignment of the policy is void, and that after February 15, 1881 (the date of the assignment of the policy), and in the lifetime of plaintiff’s testator, the loan of $800 was, with all arrearages of interest thereon, fully repaid.

      James D. Bell, for the appellant.

      Daniel Nemirs, for the respondent.
   Barnard, P. J.:

The Germania Life Insurance Company, on the 31st of May, 1870, issued an endowment policy for $1,000 in favor of Barbara •Goldsmidt, on the life of Joseph Goldsmidt, her husband, payable on May 1,188o, “ for the sole use of the said Barbara Goldsmidt.”

The policy provided further, that in case Barbara Goldsmidt should die before the determination of the policy, the amount insured shoidd be paid to her children. Both husband and wife survived the termination of the policy. Barbara Goldsmidt had children living on the 15th of February, 1881, and on that day, by written assignment, transferred the policy in question to the plaintiff’s testator to secure a loan of $800.

Her husband joined with her in the transfer and gave no other written consent to the assignment of the policy by the wife to Anderson. The policy was assignable. It was held before 1870 that such a policy was non-assignable. Chapter 821, Laws of 1873, permitted a wife who had no children to assign. Chapter 248, Laws of 1879, permitted the assignment of all policies * * * upon the lives of husbands for the benefit and use of their wives ” with the written consent of the husband. This act was designed to put assignability upon the policies as well when the wife had children us when she had none. The words of the act contained no limitation upon the power. It is to be remembered that both these laws were passed to remove what was felt to be a hardship. Poor people with policies which had value could not use this value made by themselves in case of need.

There was no necessity for the law of 1879 if the law of 1870 was not to be enlarged in accordance with its plain language. The written consent is sufficiently proven. The husband joined with his wife in the conveyance, and no stronger consent to the conveyance could be given. The law does not provide any form of consent except that it be in writing.

The other defense, that the loan was paid, was not made out. The proof given tending to establish it lacked precision in date and amount. It was entirely overthrown by proof of promise to pay the interest on the entire debt after the alleged payment; by proof that the part of the payment in groceries was unfounded, and by actual proof of the regular payment of the interest on the entire loan both by husband and wife after the payment as claimed. The finding of the trial court on this point is abundantly sustained.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    ISABELLA CUMMING, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant.

      Negligence — when a failure to comply with a city ordinance is evidence thereof— when the word “ear” in a city oi'dinance includes steam cars — evidence of a surgeon as to the necessity of future operations — when admissible to mha/nce the damages — evidence as to the cirmmstances of the plaintiff’s fa/m/Uy.

    A train of the defendant, consisting of a motor and two cars, while running from Fort Hamilton to Brooklyn, stopped at Twenty-ninth street in that city, so that the rear car overlapped the cross-walk nearest to Fort Hamilton, while it should have stopped at the cross-walk furthest therefrom. The plaintiff’s child, a girl just over five years of age, in attempting to cross the street, reached and passed around the rear end of the car, when she was struck by a train going towards Fort Hamilton and sustained injuries, to recover damages for which this action was brought. An ordinance of the city of Brooklyn provides that “ cars stopping at a street intersection, shall stop at the further walk thereof, so that the cars shall not, when stopped, interfere with travel on the cross streets.”

      Held, that the ordinance was applicable to steam as well as horse cars, and that it was properly received in evidence as tending to establish negligence on the part of the defendant.
    That, although the provisions of the general railroad act requiring the ringing of bells at crossings do not apply to cities, yet the fact that no bell was rung in this case and that the approach of the train was noiseless, was properly received in evidence as showing a failure on the part of the defendant to use due care and diligence in managing the tram.
    The child’s leg was amputated. Hpon the trial a surgeon testified that while the bone would subsequently grow, the flesh, which in the amputation was placed over it would not, and that a subsequent operation would be necessary by which the end of the bone would be again cut off. Signs of the necessity of a second operation were apparent at the time of the trial.

      Held, that the evidence was properly admitted; that it was not objectionable aa tending to establish a speculative and visionary injury.
    That evidence as to the condition and circumstances of the family of the plaintiff was admissible as bearing upon tbe question of tbe negligence of tbe plaintiff's mother, if negligence was to be imputed to her, for permitting so young a child to go into tbe streets.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for $5,500, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for injuries sustained by the plaintiff by reason of her child being injured by one of the defendant’s trains. One of the ordinances of the city of Brooklyn, relative to the running of cars in the city, read as follows : “ Oars stopping at a street intersection shall stop at the further walk thereof, so that the cars shall not, when stopped, interfere with travel on the cross streets.”
    The plaintiff gave evidence, against the defendant’s objection and exception, showing that plaintiff’s mother was in the house on the afternoon of the accident with four children and a sister who was-blind and could not look after the children ; that the mother was-too poor to employ a nurse; that she was engaged in washing clothes and hanging them out to dry, and that the plaintiff was-playing in and out of the kitchen the last the mother saw of her.

      Morris & Pearsall, for the appellant.

      Carpenter & Roderick, for the respondent.
   Barnard, P. J.:

If this case was tried without the admission of improper evidence there is no doubt but that the cause of action was fully made out. The defendant on the day in question was running a train of cars made up of a motor and two cars from Port Hamilton to Brooklyn. At the intersection of Twenty-ninth street the train stopped so that, the rear ear overlapped the cross-walk nearest Port Hamilton. It should have stopped at the furthest cross-walk.

The plaintiff’s child, a girl just over five years of age, attempted to cross the street, reached the car and passed around the rear end of it and at the instant of passing the track, going towards Port Hamilton, was run down by another similar train of the defendant. This train gave no notice of its approach. If it had a bell it was an automatic bell, which was proven to be without value when the-train was going slow which was the case with this train. It was moreover proven to be without value by the fact that it failed to notify grown persons who were there, of the approach of the train.

The street was largely used by those who passed and repassed. The street was closed to the view of those who stood in the position ■of the girl by the standing train, so that she could not see the .approaching train nor be seen by those who were on it and managing it. The jury could not well find this management ■of its trains was either prudent or safe, nor is the finding that the girl was without fault, to be reversed on appeal. The only question of evidence raised upon the negligence of the plaintiff ■consists in the admission of the city ordinance designating the crossing at which the cars shall stop. There are other sections of the •act which speak of conductors and drivers, and the argument is made that the ordinance referred only to horse cars. The ordinance designating the crossing for cars should not have the restricted meaning claimed for it. It was passed for the convenience and .safety of the citizens who use the streets and should be construed to include all cars whatever the motive power may be. The condition of the plaintiff’s family on the day in question was properly admitted. It bore uj>on the question of the negligence of the mother, if negligence was to be imputed to her, for permitting so young a child to go into the streets. The noiseless approach of the train was properly proven. The general railroad law makes the failure to ring the bell negligence in law if the omission cause an accident. It does not apply to cities; but the fact may be proventhat the failure to ring a bell caused the injury. It tended to prove a failure to use proper care and diligence in managing the train and this, if found by the jury, is with other necessary facts actionable at ■common law. The charge excepted to does not fall within the principle established in Leonard v. Collins (70 N. Y., 94). In that •ease the charge was to the effect that the defendant was liable if he omitted to do “anything that could have prevented the accident.”

In Dyer v. Erie Railway Co. (71 N. Y., 228), the charge was to the effect that the railroad company was bound to give other signals than the statute signals at street crossings. The Court of Appeals while admitting that there might be cases when such a duty would rest upon a railroad; held, that the charge in the case was too broad

Another exception is presented to the admission of evidence upon the question of damages. A surgeon testified to the injury. The child’s leg was amputated. The witness testified that the bone would subsequently grow while the flesh which in the amputation was placed over it would not, and that a subsequent operation would be necessary by which the end of the bone would be again cut off. That signs of this necessity were apparent at the time of the trial. The Court of Appeals condemned proof of an injury likely to happen, as speculative and visionary. (Strohm v. N. Y. and Erie R. R. Co., 96 N. Y., 305.) In this case the facts are given and the result premised from the facts with the reasonable certainty that, tbe result would follow from the injury. In the case of Curtis v. Rochester, etc. Railrod Co. (18 N. Y., 534), cited with approval by the Court of Appeals, the charge of the court was sustained, which permitted future damages rendered reasonably certain,, from the evidence to inevitably and necessarily follow from the injury. There is enough proven in this case if credited by the-jury to authorize a finding that a second amputation will be necessary. The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, F. J.:

text:
    EGBERT FOSTER and ELIZABETH FOSTER, his Wife, Respondents, v. SARAH E. FOSTER and Another, Appellants.

      Practice — a tenant in common may join his wife as a co-plaintiff in an action for • pan'tition— Code of Civil Procedure, sec. 1538.
    In this action, brought to procure a partition of real estate among the owners thereof, the plaintiff, a tenant in common, joined with himself as a co-plaintiff his wife, who had an inchoate right of dower in his share.

      Meld, that in so doing he did not violate the provisions of section 1538 of the Code of Civil Procedure, providing that in actions for partition “ no person other than a joint tenant or a tenant in common of the property, shall he a plaintiff,” and that a demurrer interposed upon the ground of a misjoinder of parties plaintiff should be overruled.

      Appeal from an order adjudging the demurrer of Antoinette Booth and Harriet J. Burns, two of the defendants herein, to be frivolous.
    The action was for partition, and it appears upon the face of the complaint that the plaintiff Elizabeth Foster, who is the wife of the plaintiff Egbert Foster, has an inchoate right of dower in that portion of the premises whereof her husband is seized in fee; it also appears that the said plaintiff Elizabeth Foster is neither a joint tenant nor a tenant in common of the premises in question.
    The defendants Antoinette Booth and Harriet J. Burns demurred to the complaint, setting up a misjoinder of parties plaintiff, and a defect of parties defendant; and the demurrer points out specifically the particular misjoinder and defect relied upon.

      Close <& Robertson, for Antoinette Booth and Harriet J. Burns, appellants.

      Wadsworth dk Gott, for the respondents.
   Barnard, F. J.:

The point taken by this demurrer has been the subject of much discussion since section 1588 of the Code was passed. The words of that section so far as material to the question are as follows: But no person other than a joint tenant or a tenant in common of the property shall be a plaintiff in the action.”

The plaintiff Egbert Foster is the owner of the fee, and his wife has an inchoate right of dower therein.

The husband and wife together make only one interest in the share. The words of apparent exclusion have no reference to her. There are classes named in this section who cannot be plaintiffs in partition. The wife in this case could not be, but when her husband is within the class who can maintain the action, his wife, who has a contingent interest in his share, may be joined with him. She is a necessary party, and it was not intended by this section to compel a husband to put his wife in a hostile position to himself, unless she refused to join with him and thus cut off her possible estate.

The order should be affirmed, with costs and disbursements.

Dvkman, J., concurred.

Order striking out demurrer affirmed, with costs and disbursements.


text:
    CARL J. HORSTMANN and Others, Appellants, v. HERMANN R. BALTZER and Others, Respondents.

      Principal and agent — the principal must bea/r a loss occasioned by default of the his agent.

    One Meyer, a broker in foreign exchange, purchased from the defendants a bill drawn on Hamburgh for 41,500 marks, to the order of the plaintiffs. Meyer had on many previous occasions purchased drafts of the defendants for the plaintiffs, paying for them with his own check and thereafter receiving the money from the plaintiffs. At the time of the purchase of the draft in question, Meyer owed the plaintiffs about $10,000, and they then paid to him about $2,000, which was more than was required to pay for the bill. The amount of the bill not having been paid to the defendants, by either Meyer or the plaintiffs, they stopped the payment of the bill.

      Held, that they were entitled so to do; that Meyer must be held to be the agent of the plaintiffs and not of the defendants, and that the loss must fall upon his principals.
    Appeal from a judgment; in favor of the defendants, entered upon a verdict directed by the court. The action was brought upon a bill drawn by the defendants to the order of the plaintiffs, which had been delivered by the former to one Meyer, who on the same day delivered the same to the plaintiffs. It was claimed by the plaintiffs that they had purchased the bill for value. This was denied by the defendants.
    _E Louis Lowe, for the appellants.

      Charles M. Da Costa and William D. Guthrie, for the respondents.
   Barnard, P. J.:

We think this case was properly disposed of at the circuit.

On the 1st of July, 1884, one L. Christian Meyer, a broker in foreign exchange, purchased of the defendants a bill on Hamburgh for 41,500 marks, payable to the order of the plaintiffs. The amount of the bill was not paid to the defendants either by the broker or by the plaintiffs. The defendants stopped the payment of the bill. The broker had delivered the bill to the plaintiffs. The broker owed the plaintiffs about $10,000, and they paid him $2,000 more, which made more than sufficient to pay for the bill. The broker failed on the 5th <?f July, 1884. It was proven that Meyer had purchased on many previous occasions, foreign exchange of the defendants for the plaintiffs. As between the parties to the bill there is no consideration for it and the defendants are not parties who have acquired any right under the law merchant.

The sole question is whether the broker was the agent of the defendants in selling the bill. "We think he was not. He offered to purchase in pursuance of a long course of business for the plaintiffs. He was in the habit of paying by his own checks and receiving the money from the plaintiffs in return. As well payment in this way as another, but when payment is not made the loss will fall on the purchasers who authorized the purchase and must see to it that the money they paid their broker got to the sellers of the exchange. The bill of exchange is therefore wholly without consideration, and void in the plaintiffs’ hands. The payment of the $2,000 at the time of the order of purchase does not affect the case. It was not a parting with value upon the faith of the bill. It was paid before the bill was purchased and only increased a balance in the plaintiffs account with the broker. If a bill be purchased by a broker for a party with a direction to pay for the bill out of the balance due from the broker, a purchase without payment furnishes no consideration for the bill as between the buyer and seller. (De Bras v. Forbes, 1 Esp. R., 117.)

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new tidal affirmed, with costs.


author: BabNAbd, P. J.:

text:
    HENRY F. PATCH, Respondent, v. THE TRIBUNE ASSOCIATION, Appellant.

      Practice — action for libel — a demurrer will not lie, if the words can be so construed as to be libelous, although also capable of an innocent meaning.

    Where the words used in an article alleged to be libelous are ambiguous, or the sense in which they are used is doubtful and uncertain, a demurrer to the complaint will be overruled, if they are capable of a construction which would make them actionable, even though an innocent sense could be placed upon them.

      Appeal from an interlocutory judgment, entered upon an order overruling a demurrer interposed to the complaint upon tbe ground that it did not state facts sufficient to constitute a cause of action.
    Tbe action was brought to recover damages for articles published by the defendant in The New York Tribune, which were alleged to be libelous. The article set forth in the first cause of action was as follows:
    “ Chappaqua.
    “ On Thursday Dr. Patch was called to visit a little son of Constable Alexander Lawrence, for whom he prescribed some medicines. Shortly after taking a dose, the child was seized with convulsions. Two other physicians who were sent for remarked that there was something wrong either in the prescription or its preparation.”
    The article set forth in the second cause of action was as follows:

      “ Chappaqua.
    “ The little son of Alexander C. Lawrence, who was seized with convulsions a few days ago, immediately after taking some medicine prescribed by Dr. Patch, died on Sunday. Dr. Miller refused to give a certificate as to the cause of death; then Dr. Patch declined to give one. Finally Dr. Miller consented to give one, but stated that if he did so it would be unfavorable to Dr. Patch, so that a coroner’s investigation will probably be made.”

      Cornelius A. Rwikle, for the appellant.

      W. Harloek, for the respondent.
   BabNAbd, P. J.:

The defendant can only test the actionable quality of the words by the demurrer. If they are ambiguous, or if the sense in which they were used is doubtful and uncertain, but they are capable of a construction which would make them actionable even if an innocent sense could be placed upon them, a question is presented for a jury. Under this rule the demurrer is not well taken.

The plaintiff is a physician. He prescribed for a child of one Alfred Lawrence. The article charges that “ soon after taking the dose the child was seized with convulsions. Two other physicians who were sent for remarked that there was something wrong either in the prescription or its preparation.”

The second cause of action is contained in an article which, states that “ the little son of Alexander C. Lawrence who was seized with convulsions a few days ago, immediately after taking some medicine prescribed by Dr. Patch, died on Sunday. Dr. Miller refused to give a certificate as to the cause of death; then Dr. Patch declined to give one. Finally Dr. Miller consented to give one, but stated that if he did so it would be unfavorable to Dr. Patch, so that a coroner’s investigation will probably be made.”

The tendency of the first article is of such a character as to make possible an inference from it that the plaintiff had either mixed the proper medicines improperly, or had prescribed an improper kind of medicine.

The second publication is so framed that it is possible for a jury to find, that the intent of the article is that the plaintiff caused the death of a child by negligence or lack of skill, and_ that on this • account a physician, Dr. Miller, had refused to give a certificate of the cause of death, stating that it would be unfavorable to the plaintiff, and that as a consequence the cause of death would have to be investigated by a coroner. If so found to be, in spirit and intent, the words are actionable, being spoken of a physician.

The judgment should be affirmed, with costs, with leave to defendant to answer, on payment of costs, in twenty days.

PRATT, J., concurred; DtumaN, J., not sitting.

Judgment overruling demurrer to complaint affirmed, with costs, defendant to have leave to answer, on payment of costs, in twenty days.


author: BarNard, P. J.:

text:
    KATE V. MOEBUS, Respondent, v. HENRY HERMANN, Appellant.

      Negligence — when the question as to the contributory negligence of a child should be left to the jury.

    This action was brought by a mother to recover damages for injuries sustained by her boy, who was run over by a truck driven by one of the defendant’s servants. The boy, who was about six years old, was called as a witness by the defendant and testified that he knew of the danger to be apprehended from teams in the street, and that he looked straight ahead while crossing the street and did not see the truck. The driver oi the truck was, at the time oí the accident, looking behind him and conversing with another driver, who was following on another truck, and did not see the boy.

      Held, that the question of the contributory negligence of the boy was properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was.brought to recover damages for injuries sustained by a son of the plaintiff in being run over by a truck owned by the defendant and driven by one of his servants.

      Morris <& Pearsall, for the appellant.

      Carpenter db Roderick, for the respondent.
   BarNard, P. J.:

The negligence of the defendant’s servant is abundantly made out. He was driving, at the time of the accident the defendant’s truck, on the streets of the city of Brooklyn, on a slow trot. While so driving instead of looking ahead for possible danger to others, he was looking behind him and conversing with another driver on a truck behind him. While so doing his truck ran over a boy in the street. The truck could have been stopped in an instant if he had had his attention fixed upon the duty he was engaged in, and in consequence of this inattention the accident was caused. The boy was about six yeai’s of age at the time. He attempted to cross the street in front of the truck, and was called by the defendant upon the trial, and he testified that he knew of the danger to be apprehended from teams in the street and that he looked straight ahead while crossing the street and did not see the truck. The question is whether the plaintiff, his mother, who is bound by his carelessness if he was careless, should have been non-suited. The case under consideration is very similar to the case of Thurber v. Harlem Bridge, etc., Railroad Company (60 N. Y., 326). A boy crossed in broad daylight in front of a street car. He was seen by the person driving the car team but he surrendered the control of the same to the regular driver too late to prevent the boy being injured. The Court of Appeals held that the fact of the boy’s negligence could not be treated as made out as matter of law.

That the jury were to say, if it was not an error in judgment which would excuse a person of ordinary prudence and discretion. The court cite in the opinion other cases to the same effect, that an attempt to cross the street in front of a team is not per se negligence. The case of Wendell v. New York Central, etc., Railroad (91 N. Y., 420), does not seem to conflict with this. A boy attempted to cross in front of a rapidly moving train of cars. He had before this attempted to do so and had been stopped. He had been warned against it. He was told to stop on the occasion of this injury and he eluded a flagman who had endeavored to intercept him. The Court of Appeals held his conduct to be willfully and persistently reckless.

This is not such a case. The boy says he did not look, but under all the evidence of the case the juiy could find the truth to be that it was a misjudgment of danger which would not make out a case of contributory negligence on his part, especially in view of the fact that in such cases reliance is usually had on the attention of those who control the truck. As a witness the boy was in no-different position in respect to his statements than any other witness.. If there was no error in refusing the nonsuit there was none in the refusal to charge. The requests were all based upon the fact that the boy was per se negligent. Assuming that the question of contributory negligence was one for the jury, the charge is without legal exception. The judgment should, therefore, be affirmed, with, costs.

Dykmah and Pkatt, JJ., concurred.

Judgment and order denying new trial affirmed, with costa.


author: BarNArd, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. BACON, Appellant, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF KINGS, Respondent.

      Boa/i'd of supervisors — 1875, chap. 483 — power of, to fix compensation of employees in district attorneys’ offices — when it may be fixed by agreement without an excess resolution.

    August 7, 1877, tlie board of supervisors of tbe county of Kings passed a resolution fixing tbe salary of tbe chief clerk in tbe district attorney’s office at $3,000 a year. On November eigbtb of that year tbe board adopted a resolution to raise for tbe current fiscal year a certain sum for tbe salaries of tbe district attorney, bis clerks, etc., wbicb sum of money was insufficient to pay these officers tbe salaries fixed by the prior resolution. Tbe district attorney, who bad just been elected, made a list of bis clerks, and of tbe salary each was to receive, including bis own, tbe sum of which just equaled tbe amount raised by tbe board. He appointed tbe relator chief clerk, at a salary of $1,500 a year, and tbe relator accepted tbe appointment and drew the salary monthly at that rate, and gave receipts therefor.
    Thereafter tbe relator, claiming to be entitled to tbe difference between the salary as fixed by tbe resolution of August seventh and that actually paid to him, sought to compel tbe board of supervisors to pay this difference to him: Held, that bis application was properly refused.
    That tbe board bad authority to fix tbe number, grade and compensation of tbe employes in tbe office of tbe district attorney, under chapter 483 of 1875.

    That tbe acts of the board, tbe district attorney and tbe relator amounted to a contract as between them, and tbe amounts received by tbe relator thereunder were in full for all services rendered by him.
    Appeal from a judgment in favor of tbe respondent, entered upon a decision of Mr. Justice Cullen, after tbe trial of issues arising upon tbe return to an alternative writ of mandamus.

    Tbe writ commanded tbe respondent to audit and pay relator’s claim for $14,398.31, or show cause wby tbe writ ought not to be obeyed.
    On tbe 7tb day of August, 1877, tbe board of supervisors passed a resolution, of wbicb the sixth section was as follows:
    “ That tbe salary or pay of tbe chief clerk in tbe district attorney’s office be, and tbe same is hereby fixed at tbe sum of three thousand dollars per annum.” Tbe salaries provided for in this resolution to be paid to tbe district attorney, bis deputies, clerks and officers, amounted in the aggregate to over $26,000.

      On. the eighth day of November, in the same year, the board adopted another resolution by which it was determined to raise by taxation in the then current fiscal year the sum of $22,000 for that purpose.
    Isaac S. Oatlin, Esq., who had just been elected district attorney,, thereupon made out a list of his deputies, clerks and officers, and set opposite the name of each the salary he was to receive, the aggregate-of the salaries, including his own, equaling the unexpended balance-of the $22,000 to be raised for that purpose.
    Mr. Gatlin informed the relator that he intended to appoint him chief clerk, at a salary of $1,500, which was the amount set opposite his name. The relator accepted the position on the 1st of January, 1878, at the rate of compensation mentioned.
    The list was sent to the county treasurer, and the salaries marked upon it were paid to the several persons named, relator receiving $1,500, in monthly payments, and giving his receipts therefor.
    On the 24th day of January, 1884, the relator presented a bill to the board of supervisors, in which he claimed that up to August, 1881, he was entitled to receive $5,000 per year, and the amount of such bill was the difference between $5,000 and $1,500 per year, with interest. The claim was rejected, whereupon the alternative writ, was issued. "Relator did not present his bill to the county auditor, and the latter never passed upon it. At the trial only $3,000 was insisted upon as being the rate at which the relator ought to have been paid yearly.
    Judgment was rendered in favor of the respondent, dismissing the writ, with costs.

      Jaynes Troy, for the relator.

      William G. Cooke, for the respondent.

      See People ex rel. Masierson v. Gallup (96 IT. Y., 638). — [Rep.

   BarNArd, P. J.:

No doubt can be entertained, I think, but that the general law (chap. 482 of Laws of 1875) gives the board of supervisors of Kings county power to fix the number, grades and compensation of the employes in the office of the district attorney.

Chapter 544 of the Laws of 1857, limiting the power of appointment in the district attorney to one clerk at a compensation of not exceeding $1,000 per annum, and chapter 111, Laws of 1866, were-both merged in the general law.

The board liad power to fix the compensation of the relator, and in August, 1877, did fix the salary for the office of chief clerk, which relator filled at $3,000 per annum. This wás done by resolution in the usual way, and if nothing has been since done to change it, the compensation is to be made at the rate of $3,000 per year. It seems clear that a change was made by force of the subsequent events in respect thereto. No formal fixing of number of clerks or compensation can be necessary. JBoth a corporation and those who deal with it can be bound by acts done.

In the fall of 1877 there was elected a district attorney for Kings county. Immediately after his election there was by resolution of the board of supervisors a reduction made in the sum which was to be raised for the office for the year beginning January 1, 1878. The case does not show the fact that this reduction was made known to the district attorney, but it does show that the district attorney appointed the relator as chief clerk, at a salary of $1,500 a year. That he so told the relator, and he accepted the appointment at that rate. That the force in the office was all made to conform to the reduction by the supervisors, and that the list of clerks and assistants were returned with the salary to each, as made by the district attorney, and using up just the sum limited by the board. The relator. was on the list at $1,500 per annum. The reduced amount was raised by tax and no more. The relator was paid for his salary after this rate for the three following years without an objection. If this was a transaction between two individuals the proof would be decisive of a new contract. The salary was one which the supervisors could fix. They fixed an entire amount for the office. The chief officer who made the appointment returned the plaintiff as one employed at $1,500 a year, and they raised and paid his salary after that reduced rate. It is not the case where an official charged with the duty of appointment only undertakes to charge the corporation. The supervisors can fix the rate, and the objection is only one of form and not of mistake. It was a new contract as between these parties, and this relator has been paid in full for his services.

Judgment against him should therefore be affirmed, with costs.

Dtkman and Pbatt, JJ., concurred.

Judgment affirmed, with costs.


author: Babnabd, P. J.:

text:
    ALONZO G. PADDOCK, Respondent, v. PETER Z. KIRKHAM, as Executor of JACOB COLE, Deceased, Appellant.

      Practice — a commission to take testimony may issue upon a reference of a disputed clam against an estate — R. 8., pt. 2, chap. 6, tit. 8, cart. 2, secs. 36 and 37— Code of Civil Procedure, secs. 887, 888.
    Where a claim presented against the estate of a deceased person is disputed by the executor, and referred, upon his consent, to a referee, as provided by sections 36 and 37 of article 2 of title 3 of chapter 6 of part 2 of the Revised Statutes, the Supreme Court has power, under sections 887 and 888 of the Code of Civil Procedure, to direct that a commission issue to take the testimony of a non-resident witness.
    Appeal from an order of the Special Term directing, upon the application of the plaintiff therefor, that a commission issue herein, directed to ¥m. W. Woods, counselor a-t law of Salt Lake City, Utah, to take the depositions of the plaintiff’s witnesses residing in that city, and appointing said Woods commissioner.
    The proceeding on which this appeal is taken is a reference under the statute of a disputed claim against the estate of the decedent, to Judge Weight, of JPutnam county, by consent and with the approval of the surrogate. The plaintiff made his motion for a commission upon affidavits and upon due notice to the defendant. The only objection made by the defendant upon the argument of the motion was that the court had no authority to grant the commission, inasmuch as such a reference is, as he claims, a special proceeding and not an action.

      Abram J. Miller, for the appellant.

      Thomas Cantwell, for the respondent.
   Babnabd, P. J.:

The plaintiff asserts a claim against the estate of one Jacob Cole. The defendant, who is the executor representing the estate, disputes the claim.

The parties acting under the general law of the State in such cases, have agreed to submit the question of the claim to a referee. The decision of the referee is an adjudication upon the question, good until reversed, and the failure to refer put the party declining in an unfavorable position, in respect to costs. While tbe proceeding is not perhaps strictly an action (Roe v. Boyle, 81 N. Y., 305), still for the purpose of the trial and judgment it is provided by the statute that upon the trial “ the same proceedings shall be had in all respects, the referees shall have the same powers * * * as in an action in which such court might by law direct a reference.” Under this law the parties have put themselves by legislative permission and it is unreasonable to construe the section so that the important right to have absent testimony taken by commission in a proper case, is left out. The right to a commission is given in all actions with an issue. (Secs. 887, 888.) And an action is defined to include all ordinary prosecution of. a right in a court of justice. (Code, § 3333.) When the legislature enacted that in these references the same proceedings should be had as in a properly referred action, it was designed to give the power to have a commission issued.

The order should therefore be affirmed, with costs and disbursements.

Pratt, J., concurred; Dtkman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    JANE L. W. COMPTON, Appellant, v. HENRY HUGHES, Respondent, Impleaded with Others.

      Improper joinder of causes of action — a decree settling the accounts of an executor cannot be disputed by a party in interest in a collateral action.

    This action was brought by the plaintiff, as one of the two residuary devisees of one Josephine O. B. Webster, deceased, against the executors and trustees of the latter, the other residuary legatee (who refused to join as plaintiff), and a person who was alleged to be indebted to the estate by virtue of a lease given to him by the deceased before her death. The complaint alleged that the executors and trustees had, by a failure to exercise due care and diligence, failed to collect all the rent falling due upon the lease, but had collected only a portion thereof; that their accounts, showing the receipt of a portion of the rent, had been filed and passed by the surrogate; that the plaintiff had employed a competent attorney to file objections thereto, but that the attorney never filed the objections, or if he filed them withdrew them without her consent, and that the plaintiff did not know that the executors had failed to account for all the rent, until after the accounting had been had and the decree had been entered. That the plaintiff had requested the executors and trustees to bring an action, to recover the rent unpaid, but that they had,refused to do so. Judgment was asked against the defendants severally for the recovery of the amount of the rent which had not been paid to the executors.

      Held, that there was an improper joinder of causes of action, one against the executors and trustees for negligence, and one against the lessee upon contract.
    That the complaint failed to state a cause of action as the rent received had been accounted for, and the decree, so long as it stood unreversed, settled that fact.
    Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to tlie complaint.
    The demurrer was interposed by tbe defendant Hughes to the complaint in this action upon the ground: (1.) That several causes of action have been improperly united. (2.) That the complaint does not state facts sufficient to constitute a cause of action against the defendant Hughes.
    The complaint alleged that the plaintiff was a beneficiary under the will of one Josephine O. 13. Webster, and that the defendants McGuire and Webster are testamentary trustees under said will. That prior to the death of the said Josephine 0. B. Webster she leased the property No. 20 Bowery, in the city of New York, of which she was seized in fee simple, for a term of years to the defendant Hughes, ending on the 1st day of May, 1879, for the sum of $4,800 a year; That during the years 1877, 1878 and 1879, the defendant Hughes only paid a part of the said rent to the trustees hereinbefore mentioned, and on the 1st day of May, 1879, when the said lease expired, he was in arrears $1,860, as and for rent of said premises.
    That on or about the 6th day of July, 1883, the said defendants McGuire and Webster, as executors and trustees aforesaid, took proceedings in the Surrogate’s Court of the county of New York for a judicial settlement of their accounts, as such executors and trustees under the said will of the said Josephine O. B. W ebster; that in their said accounts filed in said proceedings, they did not account for all the rent that should have been received under the said lease.
    That, as the plaintiff is informed and believes, the said defendants McGuire and Webster, executors and trustees aforesaid, did not use due care and diligence in regard to reducing said rents to tbeir possession, but so carelessly and negligently conducted themselves in that behalf, that the same were not collected as in duty bound, and thereby placed in great jeopardy if not wholly lost.
    The plaintiff further alleged “that she retained a competent attorney to file objections and conduct said accounting of said executors and trustees in said proceeding in the said Surrogate’s Court for settlement thereof, and for no other purpose, but said objections were never filed, and if filed, were withdrawn by said attorney, as she is informed and believes, without her knowledge and consent, and contrary to her wishes, and she further says, that at the time of the filing of said account by the said executors and trustees, nor at any time thereafter, before the making of said alleged decree of settlement of said accounts, did she know or have any knowledge of the fact that so much of said rents as are referred to in this action and for which the same is brought, had not been collected and accounted for, but on the contrary thereof she has discovered the same since the making of said decree and alleged settlement of said accounts.”
    The plaintiff further alleged “ that before the commencement of this action, she requested in writing the said defendants McGuire and Webster, executors and trustees aforesaid, through the United States mail, prepaying the postage thereon, to collect the said rent so in arrears, or commence an action against the said Hughes therefor ; but they neglected so to do, as she is informed and believes.”
    Judgment was demanded against the defendants severally for the rent claimed to be unpaid.

      M. Gom/pton, for the appellant.

      J. H. Flanders, for the respondent.
   BarNard, P. J.:

The demurrer was properly sustained. The defendant Hughes hired from one Josephine O. B. Webster certain premises in New York at $4,800 per year, and executed to her a covenant to pay that sum. Mrs. Webster died while Hughes was occupying under the lease, and there was rent due. By Mrs. Webster’s will the rents of these premises, during the life of her husband, after paying certain fixed charges thereon, was given to the plaintiff and the defendant Pinto, who is made a defendant because she will not join as a plaintiff. The complaint is therefore in legal effect, brought by the two residuary devisees of the rents, and it avers that the tenant Hughes has not paid his rent. That the executors and trustees have been guilty of neglect in respect to the collection thereof, and refused to sue therefor, and that they have filed their accounts for .settlement, and that the plaintiff had employed a competent attorney to file objections thereto and conduct the accounting, and that this attorney either never filed her objections, or withdrew them after they had been filed without the knowledge or consent of the plaintiff, and that the plaintiff did not know until after the accounting and decree thereon that all the rent had not been accounted for by the executors. The complaint concludes with a prayer that the defendants may severally be adjudged to pay these rents.

No cause of action whatever is shown against the defendant Webster and the defendant McGuire, but they do not object. The defendant Hughes has no interest in the question of the neglect of the executors to possess themselves of the rent and that is the only fact upon which their liability depends. If both of the causes of .action were on contract, one would be such that it would not effectj all the parties, and this defect could be reached by demurrer. (Nichols v. Drew, 94 N. Y., 22.)

But one of the causes of action is for negligence upon the part of •the trustees and executors which is to be classed as a cause of action upon a tort, and as such could not be joined in an action for rent. (Thomas v. Utica and Black River Railroad, 97 N. Y., 245.)

Again the complaint fails to show a cause of action because the rent received has been accounted for. The decree settles the fact so long as it stands. (Adair v. Brimmer, 95 N. Y., 35.) If it does not truly represent the facts proven there should be an appeal or a •motion to open and correct the decree.

The judgment should be affirmed, with costs.

HyKMAN, J., concurred ; Pkatt, J., not sitting.

Order sustaining demurrer to complaint and judgment thereon affirmed, with costs.


author: Cullen, J.:

text:
    In the Matter of the Application of the STATEN ISLAND RAPID TRANSIT RAILROAD COMPANY to Acquire Title to Lands of BODINE and Others.

      Taking of la/nd for railroad purposes — the incorporation of the petitioner may is denied — when a payment by a certified check will be treated as a cash payment.

    In proceedings instituted by a rapid transit company to acquire title to land, it appeared that on April thirt eenth a subscriber delivered a certified check for ten per cent of the amount of his subscription, drawn on that day by himself to the order of one Emmons, one of the directors of the company. Emmons testified that the check was deposited on the fourteenth of April, but it was ' not credited to him on the books of the bank until the fifteenth. The articles of association were filed in the office of the secretary of state on the fourteenth of April:

      Held, that the delivery of the certified check was a good payment in cash, within the meaning of the statute requiring the payment of ten per cent in cash on subscriptions prior to the filing of the articles of association.
    That the fact that the check was drawn to the order of Emmons, as treasurer, before he had been elected to that office, did not affect the validity of the payment.
    That the question as to whether or not there had been an improper issue of capital stock could not be inquired into in this proceeding.
    Appeal from an order made at a Special Term, affirming an order appointing commissioners to ascertain and appraise tbe compensation to be made to the appellants for real estate belonging to tbem, which was to be taken by the petitioner for the purpose of constructing and operating its railroad.

      William M. Mullen, for the New York Dyeing and Printing Establishment and Abraham B. Bodine, appellants.

      Stewart <& Boctrdmcm, for the Staten Island Rapid Transit Railroad Company, respondent.
   Cullen, J.:

This is an appeal from an order condemning lands of the appellant and appointing commissioners of appraisal. The right of the petitioner to the relief sought is challenged on several grounds. It is claimed that the petitioner was not duly incorporated. The first defect in the incorporation is the alleged failure to pay to the directors ten per cent in cash on subscriptions to the amount of $1,000 for each mile of road to be constructed. This by the statute is a prerequisite to filing the articles of incorporation in the office of the secretary of State. In this case the payment was made by the delivery to one Emmons, one of the directors, of a certified check for $900, drawn by Wyman, who had subscribed for $9,000 of,the stock. This check was drawn, certified and delivered on April thirteenth, when the affidavit attached to the articles of association was made. The check Emmons testifies was deposited on the fourteenth of April, but by the books of the bank in winch the deposit was made the cheek is credited to Emmons on the fifteenth. The articles of association were filed in the office of the secretary of state on the fourteenth. That the check was drawn to Emmons, treasurer, does not affect the validity of the payment. True Emmons was not elected treasurer till the subsequent organization of the company. But he was a director of the company, and the payment was made to him as such, for the use of the company and as a payment on the subscription.

The misdescription of Emmons, if such there was, would not vary the actual effect of the transaction. The substantial question is, whether the delivery of the certified check was a good payment in cash, within the meaning of the statute. This court in the Starin case has decided that question adversely to the appellant and held the payment good. It is not necessary to review the opinion delivered by Justice Pratt in that cause, nor to add to the reasons there given for the decision. It is true that a certified check is not a legal tender, and that also it does not operate to transfer the fund itself to the drawee, but it is the common manner in which, by the “assent of parties, payments of large sums of money are made. Where there is no intent to evade the statute or make a colorable or fictitious payment, we think a payment made in good faith in the ordinary business manner in which cash obligations are discharged, should be held a payment in cash. Here the certifying bank was a solvent city bank and the drawer had sufficient funds to pay the check, nor are the authorities in conflict with this view. In Durant v. Abendroth (69 N. Y., 148), it was held that the payment by check of the capital of a special partnership was bad. But in that case the check was post-dated eight days, and uncertified, and, as the court says, could not have been certified until it became due. In the Metropolitan Bank v. Sirret (97 N. Y., 320) a verdict for the defendant was sustained where the payment of the special capital was made by a certified check. In that case the check was deposited on the day the affidavit was made. If, therefore, the deposit was made by Emmons on the fourteenth, the case cited would be decisive in favor of the validity of the payment. But if the check were not deposited till the fifteenth, we think this would not alter the transaction. The appellants claim that such deposit would convert the check into cash. This is true only in a limited sense. It would simply effect the change of a claim against •one bank into a claim against another. The characteristics of the two claims would differ, but still both cases would be simply matters of credit. [Doubtless, if it were shown that there was any understanding that the check should not be drawn or deposited, or the funds not be immediately and absolutely subject to the disposition of the corporation, such an agreement would vitiate the payment, but nothing of that character appears in this case.

The discrepancy between the names signed to the articles of incorporation and those appearing in the acknowledgement seems a clerical error, and should not vitiate the incorporation of the petitioner. There is nothing to show that the subscription of any of the incorporators was conditional. They would be liable absolutely on their subscriptions. No improper issue of stock can be inquired into in these proceedings, if it appears that vah'd subscriptions to the extent of $10,000 a mile have been made and ten per cent thereon paid in ■ cash. This is sufficient under the statute to authorize the company to condemn land.

¥e think, therefore, the petitioner was entitled to maintain these proceedings, and that the order appealed from should be affirmed, with costs and disbursements.

Present — Dykman, Pbatt and Cullen, JJ.

Order appointing commissioners affirmed, with costs.

        Mattes' of Staten Island Bapid Transit Bailroad Company, to acquire Lands of Starin (reported 37 Hun, 433). — [Rep.


author: Pratt, J".: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE PORT CHESTER SAVINGS BANK, Appellant, v. DAVID CROMWELL, Treasurer of the County of Westchester, Respondent.

      Surrender of coupons upon the receipt of a worthless check — when the owner still retains his title to them — a mandamus should not issue when an ample legad remedy exists.

    The relator was the owner of certain coupon bonds issued by the county of Westchester, which were by their terms made payable at a bank in New York city. Subsequently the place of payment was lawfully changed to the private banking-house of J. M. Masterton & Co., at Mount Vernon. On November sixth coupons then due were presented to Masterton & Co. for payment, and were delivered to them, upon the receipt of their check for the amount thereof. The check was worthless, there being no funds in the bank upon which it was drawn to meet it. The county had sufficient money on deposit with Master-ton & Co. on the day the coupons were presented to pay them.

      Held, that the delivery of the worthless check did not discharge the obligation of the county, and that the coupons surrendered by the owner upon the receipt of the check remained his property and might be recovered by him in an action at law against the county to which they had been delivered by Masterton & Co.

      Semble, that as he had an ample and complete remedy at law, it was not a proper case in which to issue a mandamus requiring the county treasurer to pay the amount of the coupons to him.
    Appeal from an order denying a motion for a mandamus to compel the county treasurer of Westchester county to pay to the relator certain coupons upon bonds issued by the county of "Westchester.

      Isaac W. Mills, for the appellant.

      Wilson Brown, Jr., for the respondent.
   Pratt, J".:

On the 1st day of November last, the relator was, and for some time had been, the owner and holder of certain coupon bonds of the county of Westchester, certain coupons upon which matured and became payable upon that date. By their terms those coupons were payable at a certain bank in New York city, but pursuant to due legislative authority the proper county authorities had lately changed the place of payment from such bank to the private banking house of J. M. Masterton & Go., at Mount Yernon, and had given to the relator due notice of such change.

The county had sufficient money on deposit with Masterton & Co., on the said day to pay such coupons. On the sixth day of. November, the coupons were presented to Masterton & Go., and a check given therefor and the coupons delivered to Masterton & Co., and by them afterwards returned to the county treasurer, the defendant herein. In fact the check given by Masterton & Co. was worthless, there being no funds in the bank to meet it; Masterton & Co’s, account being overdrawn. The plaintiff thereupon demanded the coupons of the county treasurer and on refusal made a motion for a peremptory writ of mandamus, which was denied. This appeal is from that order.

It is to be observed that the check was worthless at the time it was delivered to the relator, it therefore did not pay the obligation of the county and the retaining of the coupons by the defendant after demand was wrongful. There could under the circumstances be no question of laches on the part of the relator. It is perfectly clear that if the relator had presented the coupons to the county treasurer and received a worthless check therefor it would have been no payment of the debt. (Syracuse, etc., R. R. Co. v. Collins, 1 Abb.N.C., 49; Hill v. Beebe, 13 N. Y., 562.) But how can it be said that receiving the check of Masterton & Co. would operate as an extinguish ment of the debt, when Masterton & Co. were the agents of the county treasurer to perform that service.

Assuming, however, that Masterton & Co. were not agents, but must be regarded as a third party, the defendant is in no better position for the cheek was not received upon any express agreement that it should extinguish the debt and the check was worthless at the time. (Noel v. Murray, 13 N. Y., 169-172; Turner v. Bank of Fox Lake, 3 Keyes, 425.)

We are of opinion that the giving of the check by Masterton & Co. did not constitute a payment of the coupons, and that they remained and now are the property of the relator and unjustly withheld by the defendant. The relator, however, had an ample and complete remedy at law without seeking the aid of a writ of mandamus.

It is well settled by a long line of adjudications tbat'tbe writ of mandamus will not be awarded where the party has an adequate remedy -by action at law. (Boyee v. Russell, 2 Cow., 444; People ex rel. Merritt v. Lawrence, 6 Hill, 244; Matter of Shipley, 10 Johns., 484.) It is too plain to require comment that the relator had a plain right of action against the defendant, and that a ma/ndamus was not the proper remedy. This point however was not raised below and is not now urged, the parties desiring a decision upon the merits. Such being the case, the order must be reversed and the motion granted, without costs of this appeal.

Barnard, P. J.:

The relations between the relator and the county of Westchester were not changed by the transactions between the relator and J. M. Masterton & Co., on the 6th of November, 1884. The relator on that day held the coupons in question for the payment of some annual interest on bonds of the county. The banking house of Masterton & Co. were the depositories of the county, and the county had money on deposit with Masterton with which to pay the amount of the coupons. It is a matter of dispute whether Master-ton & Co. gave their draft at the request of the relator or gave it without anything being said by relator. It is very clear that the relator wanted payment, and the draft was only a means of payment. If the draft had been paid, the coupons would have been paid; otherwise not. (Bradford v. Fox, 38 N. Y., 289; Noel v. Murray, 13 id., 167; Indig v. Nat. Cily Bank, 80 id., 107.)

The argument of the learned counsel for the respondent in the light of these cases has no foundation. The firm of Masterton & Co. gave a draft which was not good and received the coupons which were not paid for, and the charge of the amount by the Mastertons against the county is a mere matter of book-keeping, and has no relevancy as against the relator. Even as against the county it was no payment, even with the aid of the books and the return of the coupons to the county treasurer. The securities belonged to the relator notwithstanding. There was no laches. The coupons were to be paid on their presentation, and the delay in presentment from the 1st of November, 1884, when they were due, the 6th of November, 1884, when they were in fact presented, did not even tend to sbow neglect. Tbe deposit must be kept good by the debtor. (Indig v. Nat. City Bank, 80 N. Y., 107.)

The draft was given on the redeeming bank of Masterton & Go. on the 6th of November, 1884, and on the seventh Masterton failed, and on the eighth the draft was presented in New York and was dishonored and protested, and soon thereafter notice thereof was given to the county treasurer. The coupons were in the possession of Masterton & Co. when they failed. The case therefore shows a good debt against the county. There was no laches, which in law is in some cases held to be payment in effect. These cases do not include such a state of facts as are presented on this appeal.

The order refusing a mandamus should be reversed, with costs, and the order granting a mandamus, as asked for, should be granted, with costs.

Present — Barnard, P. J., and Pratt, J.; Dykxcan, J., not sitting.

Order denying mandamus reversed, with costs and disbursements, and motion granted.


author: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NATHANIEL MILLER, Respondent, v. DE FOREST HULSE and Others, Commissioners of Highways of the Town of Brookhaven, Appellants.

      Befusal of highway commissioners to hme, what is claimed, to he a public road, ascertained and recorded— an error in their decision cannot he reviewed hy mandamus.
    Appeal from an order made at Special Term, directing tbe issuance of an alternative writ of mandamus against tbe defendants,, commanding them to proceed forthwith to ascertain, describe and record a certain highway in their town described in the papers in this proceeding.
    The court at General Term said: “ There is much confusion and contradiction in the papers contained in the appeal book, but in the view we take of the case we shall not be required to examine the facts.
    “ It appears that in March, 1884, a petition was signed by the taxpayers of Brookhaven, intended to request the commissioners of highways of that town to ascertain and record an old road which it was claimed existed therein. It also appears that in November, 1884, an order was made and signed by two of the commissioners refusing the application.

      “ It is now claimed on one part that this order was clandestinely made and filed, and on the other side that it was regularly signed as the result of due deliberation. Our view is that the writ of mmdamus is not the proper remedy for the difficulty into which the proceedings have been plunged. The commissioners have taken action on the petition, and if such action has been erroneous the errors must be reached by a review of their proceedings.
    “The commissioners of highways constitute the tribunal upon which the legislature has imposed the duty to cause such of the roads used as highways for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk’s office. . In the performance of their duties under this law the commissioners must decide, first, whether the road brought to their consideration has been used as a public highway for twenty years, and it is beyond the competence of any court to dictate their decision. The Supreme Court, in the exercise of its supervisory power over all inferior tribunals, may command the commissioners to proceed in the discharge of their duty, and after they have taken their action their proceedings may be reviewed in some appropriate way, but orderly and regular administration of law requires no more.”

      Wilmqt M. Smith, for the appellant.

      Strong <6 Spear, for the respondent.
   Opinion by

DykmaN, J.; Babnabd, P. J., concurred.

Pratt, J.:

I do not think the commissioners “acted” upon the matter, and hence mandamus was an appropriate remedy to make them act as a board. I am for affirmance.

Order granting alternative mandamus reversed, with costs and disbursements, and motion denied, with costs.


author: Pratt, J.

text:
    GEORGE F. WELLMAN, Appellant, v. MARSHALL S. FROST, Respondent.

      Practice — right to issue a precept to collect the costs of a motion— Code of Civil Procedv/re, sec. 779 — when the order is served by mail the pa/rby has twenty days within which to pay them — costs of a motion ca/nnot be set-ojf against other motion costs, after the latter hme been assigned by the pa/rty.

    Appeal from an order made herein, by Hon. E. M. Cullen, dated July 27, 1885, setting aside and vacating, with ten dollars costs, a precept issued by plaintiff’s counsel to collect ten dollars costs of a motion awarded to plaintiff (on a motion made by him to strike out portions of defendant’s answer), and setting off such costs given by the order appealed from against the ten dollars, to collect which the precept was issued. A copy of the order was served by mail on the defendant’s attorney on July 2, 1885. A precept for the collection of the costs was issued on July third; the ten dollars costs awarded plaintiff, and for which the precept was issued, had, before the motion to set aside the precept was made, been assigned for a valuable consideration to A. J. Moore, the counsel for plaintiff, and a preliminary objection was made to said motion, that no notice of said motion had been given the assignee, which objection was overruled by the court.
    The court at General Term said: “ The act of 1847, which provided for the collection of motion costs by a precept, was repealed by chapter 417 of Laws of 1877; but section 779 of the Code of Civil Procedure was amended by chapter 397 of Laws of 1882, so that the substance of the law of 1847 upon this subject was re-enacted and embodied in section 779. That section now allows an execution to issue for the collection of motion costs. (Laws of 1882, p. 563.) The precept was set aside upon t'he ground that it was unauthorized. This was error. But the order awarding costa having been served by mail, the respondent had twenty days in which to pay and the precept was prematurely issued, and upon this ground the precept was properly set aside.
    “ The amendment to section 779 of Code, passed in 1882, before referred to, provides for the issuing of the execution only in case the costs are not paid within the time fixed by the order, and if no time is fixed by the order then in ten days. The order setting aside the precept was therefore right. The costs of the previous order, however, had been assigned to one A. J. Moore, and the costs imposed by the order setting aside the precept could not be set-off against them after such assignment.

      “ Order modified by reversing so much of the order appealed from as provided for the set-off, without costs.”

      Moore c6 Moore, for the appellant.

      Edward L. Erost, for the respondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order reversed, as to so much as provided for a set-off; that part of order that set aside precept, affirmed; no costs.


text:
    ENGELHART WANDELL, Appellant, v. AUSTIN CORBIN, as Receiver of the Long Island Railroad Company, Respondent.

      Negligence — when it is negligent to run a train rapidly overa track lying between an apparent station and an excursion train— when it is not negligent for a passenger to leave a train, at a switch station resembling a passenger station.

    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit ordered at the circuit.
    The court at General Term said: “ This case carries before the court plaintiff’s motion for a new trial, which is deemed to have been made when the judge at circuit directed the entry of an order that the exceptions should be heard in the first instance at the General Term. (Code of Civil Pro., § 1000.) The defendant moved to dismiss the complaint on the ground that no negligence was shown on its part, and that the plaintiff was clearly guilty of contributory negligence. The main question, therefore, is whether or not the evidence justified this disposition of the cause at circuit. I think that both questions should have been submitted to the jury.
    “ The plaintiff was injured by one of defendant’s locomotives at a place called Rockaway Junction on the line of defendant’s railroad.

      “ The plaintiff’s evidence tended to show the following facts: That plaintiff, a member of a regiment, boarded a special train at Long Island city, with his company bound for Creedmoor. The train stopped at Rockaway Junction and there remained fifteen or twenty minutes to permit a westward bound train to pass on its way to Long Island city. Wo camtion was given, nor was there any a/nnowncement of the object for the stop. The morning was hot and sultry and plaintiff became ill from thirst and the excessive heat of the day. He sought for water on the train and found that none had been provided for the passengers. Looking out from his car he could see a long platform which appeared like a passenger platform. He asked one of his comrades to get him a drink of water, and an effort was made to that end, but the comrade returned from the platform and a switch house which was connected therewith and told him that, while there was water in that house, there was no cup, and he would have to go to the place to quench his thirst. He thereupon left the waiting train, crossed an intervening trade and entered the switch house by a door opening through a side of the building which ran at right angles to the track and faced westward. The door was only eight or ten feet from the track. While in the house and before he had time to drink he heard the bell of his train begin to ring. It seems to be conceded that this was the signal for the waiting train to start on its way eastward. Plaintiff immediately left the water and hurried westward through the door, turned to his left and attempted to cross the track and board his train. Of course his back, at first, was eastward, so that he could not then see the approaching train even if there had been an unobstructed view. When he turned on his way toward the track his view for a few feet was obstructed by the building, and he could not then see the coming train. Indeed, he could have seen it only while passing over a space of four or five feet after he crossed the prolongation of the southerly line of the switch house, and then he was hurrying, running, and there was but little opportunity to look or see and scarcely time for reflection, even if he had thought of it. As he approached the track he was struck by the locomotive of the westward bound train, which was running at the rate of thirty-five to forty miles per hour.
    “ The first question|naturally suggested is this: Was it prudent and safe management for the railway agents, who knew that the westward bound train was expected to pass without stopping, at a rapid rate of speed, to place and leave the special train upon the southerly track while the other train was passing, without giving the passengers some warning, that a train was expected to pass over the track which intervened between the special train and the platform, and without caution against the danger of leaving the train and crossing that track.
    “ I cannnot resist the conviction that under the circumstances disclosed,- the omission to give the warning was a fact from which the jury might infer negligence on the part of the railway managers. There was a party of soldiers, not in an ordinary passenger car, but in an open car, from the sides of which twenty of them might leap at once, prompted by motives of necessity, pleasure or comfort, «specially on a hot day like this July morning. It may be assumed that these passengers were like all other people when on an outing on such a day, naturally inclined to leave their crowded seats when the train was standing and seek relief upon the ground. There was that which had the appearance of a passenger platform, with the natural suggestion or inference that a passenger depot was near at hand, although there was none in fact. There was a hotel just beyond the switch-house. .It seems to me that the act of running a train over an intervening track thus situated without wa/rmng was -a dangerous thing to do; that to attempt to run the train over such a place at a, rapid rate was an aggravation of the danger; that to attempt to even pass a train over such a place without stopping, whistling or some such signal from the coming train, was clearly an act proper for the jury to consider and pass upon, and that the act •of ringing the bell upon the waiting train, and thus summoning the passengers to resume their places when the westward train was coming over that track at that rate of speed was clearly another act from which negligence might have been inferred by the jury. Indeed a jury would be quite justified in saying that there was negligence in placing and leaviug the eastward train upon the southerly track at all under the circumstances disclosed. The switch by which the approaching train was let upon the intervening track was only about 300 feet from this switch-house and was not noticeable. The westward train was only about eight seconds in passing from this switch across the point where plaintiff was injured and the space for observation was very narrow. The coming train was on a straight line with the track on which the waiting train was standing and simply veered off at the switch.
    “ Taking all these circumstances into account along with others which were disclosed by the evidence, I think it is clear that the question of defendant’s negligence should have been submitted to the jury. It also seems to me that it was for the jury to determine whether or not plaintiff was guilty of neglect. We must take men as we find them with their ordinary experiences in reference to the danger of leaving trains at stations, sometimes to send telegrams, get lunches, speak to friends or answer necessary calls, especially when conveniences are not provided in the cars. Have such acts generally been attended with danger ? Was it not for the jury to apply their common sense and judgment to such a question ? True, this was not a regular station, but what of that ? Did it look like one ? Was the plaintiff misled by the sign “ Rockaway Junction ” and the platform appearances which defendant had erected or suffered to remain ? It would have been proper for the jury to take all these considerations into account in determining whether or not this sick and suffering passenger, who failed to find ordinary traveling conveniences on board his car, was- guilty of negligence in leaving his train for the purpose named. I certainly will not hold, as matter of lamo, that he was even imprudent, much less negligent.”
    An order should be entered sustaining the exceptions and directing a new trial, with the costs of this appeal to the plaintiff to abide the event.

      George W. Roderick, for the appellant.

      Hinsdale do Sprague, for the respondent.
   Opinion by

Pratt, J.

Present — Barnard, P. J., Dvkman and Pratt, JJ.

Exceptions sustained and new trial granted, costs to abide event.