text:
    JOHN GIBSON, Respondent, v. THE NORTHERN CENTRAL RAILWAY COMPANY, Appellant.

      Master — when not liable to servant for injury occasioned by neglect of co-servant —when not guilty of negligence in. appointing subordinate officers.

    This action was brought to recover damages for an injury alleged to have been occasioned by the defendant’s negligence. The plaintiff had, for several years prior to the accident, been employed by the defendant as a yard: switchman, it being his duty to break up the trains coming into the yard, and shift the cars to outgoing trains, or to the repair shop, according to the directions contained on a card furnished to him by the yard dispatcher, whose duty it was to order sent to the repair shop all cars marked as out ■of repair by the car inspector. At about four o’clock in the morning of March 1. the plaintiff, while coupling a coal car to an outgoing train, ■caught his glove upon a piece of iron projecting from the bumper of the •coal car, and had his hand crushed. He claimed that the car inspector was ■negligent in not discovering that the bumper of the coal car was out of repair, and ordering it sent to the shop instead of ordering it sent out with another train.

      Held, that the plaintiff and the car inspector were co-servants, engaged in a common service, and that the defendant was not liable for the neglect of the car inspector to discover this particular defect.
    The car inspector, a man of thirty-four or five years of age, had, prior to his coming to this country, been employed as a common laborer, except for a few months, when he had worked in a railroad yard, putting brasses into freight cars. Upon entering the defendant’s employment, he had no knowl•edge of machinery, and worked in the carpenter’s shop, bolting, putting in ■ brasses and boxes, and assisting in the shop. After so working for from one to two years, he was made car inspector. His sobriety and intelligence were unquestioned.

      Held, that the evidence failed to show that he was incompetent to act as a car inspector, or that the master of the repair shop was guilty of negli- , gence in appointing him to that position.

      Appear from a judgment in favor of the plaintiff, entered upoE 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 personal injuries-sustained by the plaintiff while in the employ of the defendant asa. night switchman.

      G. M. Dwen, for the appellant.

      A. V. Murdoch, for the respondent.
   Follett, J.:

For three or four years prior to the plaintiff’s injury he had been employed by the defendant as a yard switchman at Elmira.

'Upon the arrival of a train it was inspected by a car inspector. Every car found defective was marked with chalk shop,” and the particular defect was also indicated thereon; then an employee called a “ yard dispatcher ” noted on a card the numbers of the defective cars, and wrote the word “ crippled ” after the numbers.

Upon the same card were noted the numbers of the cars to be shifted from the inspected train to the various outgoing trains. This card was given to the plaintiff, who shifted the cars according-to the directions upon the card. The cars marked “crippled” were shifted on to the repair track, to which cars needing repairs were taken. The cars not marked “ crippled ” were shifted to appropriate places for coupling to outgoing trains. The plaintiff, in this service, coupled and uncoupled cars, both perfect and imperfect* as occasion required. This is the plaintiff’s account of his duties. The plaintiff was a night switchman, going on duty about six n. m.„ and leaving the next morning between six and seven, depending on the state of his work.

About four o’clock a. m., March 1, 1871, a freight train brought in to defendant’s yard a car called, by the witnesses, a Shanghai coal dump. The train and ear in question were inspected by Hartigan* the car inspector, and the plaintiff, according to the custom, received a. card directing him to shift the Shanghai coal dump to an outgoing train. While coupling this car to one known as a gondola* the plaintiff’s hand was crushed. He attributes the accident te a. defect in one of the buffers of the Shanghai car. The faces of the, •buffers of this car were originally covered witJi boiler iron ; which.' had been broken, and at the time of the accident was partly gone. The piece remaining was irregular in shape, fastened by a single-bolt, and hung so loosely that when force was applied, it would' revolve around the bolt.

At the time of the accident the plaintiff’s hands were gloved.

• Hanging from a hook in the drawkead of the Shanghai car was a chain of three links. The plaintiff inserted, with his right hand, the end link of the chain within the drawhead of the gondola; inserted with his left hand the coupling pin; and while in the act of withdrawing his right hand, his glove was caught by this irregular piece of iron, and held until crashed by the buffers. The evidence is conflicting as to whether the plaintiff’s hand was injured by the. buffers; but we adopt the statement of the plaintiff, it having been sanctioned by the jury.

The plaintiff claimed that he was entitled to recover: (1) Because the defendant used and required the plaintiff to handle this car with a defective buffer. (2) Because the defendant employed a car inspector who, the plaintiff asserted, was incompetent, and. caused the accident by negligently failing to detect this defect and report the car as crippled; thus depriving the plaintiff of notice, by means of the card, of its condition.

Upon the first ground the plaintiff was not entitled to recover, because he contracted to handle crippled or defective cars. This was a part of the daily service which he undertook, and the ordinary-risks of which he assumed. His case is not like a servant employed in running trains. In that case it is expected the machinery is fit for the use to which it is put; but in this case it was understood by both parties that the plaintiff was employed to handle cars and machinery unfit for use.

The more serious question arises over the second proposition. The plaintiff claims that Mr. Pinney, the foreman of the repair shop, was negligent in employing Iiai’tigan, the car inspector. Tins precise question was not submitted to the jury, but it was assumed'that if the inspector was incompetent, the foreman of the repair. shop was negligent. The defendant did not except to this assumption, nor request that the question of the negligence of the foreman of the repair shop be submitted to the jury.

The only evidence bearing upon the competency of the car inspector, aside from the fact that he failed to discover and note the defect, was given by Hartigan, the inspector. Tie testified that his age was thirty-four or thirty-five years. . Previous to his coming to this country he worked for three or four months in a railroad yard in Ireland, putting brasses into freight cars. Except this, he had been employed as a common laborer; was not a mechanic, and was without knowledge of machinery up to the time of entering the service of the defendant, in May or dune, 1869. Upon entering defendant’s service he worked in the carpenter’s shop, repairing cars, putting in brasses, bolting, and putting in boxes, and assisting in the shop.

Ho was continued in this employment from one to two years, and then made car inspector. His sobriety and intelligence were not questioned. There is no evidence that he had, before or since, failed to detect defects, or had proved incompetent, or had been charged with incompetency.’ His evidence clearly discloses the details of his business, and seems to have been given intelligently.

It is not claimed that the master of the repair shop, or any person in authority, had notice that the car inspector was incompetent, ■or had reason to suspect that he was incompetent. The evidence is insufficient to establish negligence on the part of the master of the repair shop, in emjfioying Hartigan as a car inspector.

Neither can the verdict be sustained upon the ground of the neglect of the car inspector to discover and note this particular defect. The plaintiff and the car inspector had long .labored in the •same yard, and must have been perfectly acquainted with each •other’s fitness for the duties of his employment. Neither had .authority over any other person, and neither was charged with any •duty except the performance of his daily task.

They were co-servants, engaged in a common enterprise, and for the neglect of tlie car inspector to discover this particular defect in .the buffer, the defendant is not liable. (Besel v. New York Central, &c. R. R. Co., 70 N. Y., 171; 2 Thompson on Negligence, 1034.) The plaintiff should have been nonsuited.

Judgment reversed, new trial granted, costs to abide the event. '

Learned, P. J., and Lockes, J., concurred.

Judgment and order reversed, new trial granted, costs to abide event. ,


source: Caselaw Access Project

author: PoLLETT, J. : Learned, P. J.:

license: Public Domain

text:
    ANDREW J. PERRY, Respondent, v. THE ROUND LAKE CAMP MEETING ASSOCIATION, Appellant.

      Order of County Gourt — when it is not appealable to the General Term— Corporation — of what county it is deemed, a resident. . ;
    No appeal lies to the General Term from an order of the County Court denying a motion for a new trial, made in an action originally commenced in a justice’s court. The appeal should be taken from the judgment entered in the County Court.
    The defendant was created a corporation by chapter 617 of 1868, its property and place of business being situated in the county of Saratoga; its shareholders and trustees reside in different counties of the State. Its business has been transacted in Saratoga county, except that its-trustees have met in the counties of Albany and Rensselaer. In an action commenced against it by the plaintiff in the Albany justice’s court, a long summons was served upon its secretary, who resided in Albany county. . .
    Held, that the defendant was a resident of Saratoga county, and that, being a non-resident of Albany county, the justice’s court acquired no jurisdiction over it by the service of til© summons. ' .
    Appeal from a judgment of tbe Comity Court of Albany Gounty, in favor of the plaintiff, entered upon the verdict of a jury,-in an action originally commenced in tbe Albany justice’s court. -..
    Tbe defendant is a corporation, incorporated under chapter 617 of tbe Laws of 1868. Its property and place of business are situated in the county of Saratoga. Its shareholders and officers reside ip different counties in this' State. Its business has been entirely ■transacted in Saratoga county, except that its .trustees have met ins the counties of Albany and Rensselaer. The' plaintiff was an employee of the defendant on its grounds in Saratoga county.

      The action is upon contract. It was commenced by a long summons issued by a justice of tbe peace of tbe county of Albany, and served upon tbe defendant’s secretary, a resident of Albany county. Befpre joining issue in tbe justice’s court, tbe defendant objected to the-jurisdiction of tbe justice, on tbe ground tbat it was a non-resident of tbat county, and could not be sued by a summons. Various' objections to tbe jurisdiction were taken, but were overruled. Tbe plaintiff recovered a judgment. Tbe defendant appealed to tbe County Court, and moved tbat tbe action be dismissed on tbe ground that tbe justice’s court had not acquired jurisdiction of tbe defendant, which was denied. Tbe action was then retried before a jury, which resulted in a verdict for tbe plaintiff. Tbe defendant moved for a new trial upon tbe minutes in tbe County Court, ■which was denied. Judgment was entered, from which tbe defendant appealed; but be did not appeal from tbe order denying tbe motion for a new trial.

      Isaac la/wson and Wa/rren 8. Kelly, for tbe appellant.

      J. H. Cl/u/te, for tbe respondent.
   PoLLETT, J. :

' The Court of Appeals has held tbat an order of tbe County Court ;made in an action brought in a justice’s court, is not appealable to tbe General Term of tbe Supreme Court. (Andrews v. long, 9 N. Y. W. Dig., 513.)

An appeal from tbe order denying tbe motion for a new trial would have been unavailing. An appeal from tbe judgment is ,proper, and brings up for review tbe judgment roll, and tbe case ,and exceptions. (Fish v. Thrasher, 10 N. Y. W. Dig., 93; S. C. 21 Hun, 15; Code Civ. Pro., § 1340.) Tbe motion to dismiss tbe appeal is denied.

The property of tbe defendant, its sole place of business, and general office being in tbe county of Saratoga, it is a resident of that county, and'a non-resident of Albany county. (Conroe v. National Protection Ins. Co., 10 How., 403; Hubbard v. National Protection Ins. Co., 11 Id., 149; Miner v. Village of Fredonia, 27 N. Y., 160; Angell and Ames on Cor., 9 ed., § 107 ; Dicey on Domicil, 110, Rule 12; Lindley on Partnership and Companies* 3 ed., Appendix No. 1, 1516.)

The domicil of a corporation is entirely distinct from the -personal domicil of its shareholders or officers. (Dicey on Domicil, 110; Angell and Ames on Corporations, 9 ed., § 107; Attorney General v. Alexander, L. R., 10 Exch., 20; Limerick, &c. R. R. Co. v. Fraser, 4 Bing., 394; Kilkenny, &c. R. R. Co. v. Feilden, 6 Exch., 81.)

The defendant, being a non-resident of Albany county, the court ■acquired no jurisdiction by the service of a long summons on its ¿secretary in that county. (Cowen Treatise, 5 ed., § 795 ; L. 1831, Ah. 300, § 33.)

The process issued by a justice of the peace against a corporation, ■may be served on its presiding officer, secretary, cashier, treasurer, ■director or trustee. (L. 1847, ch. 470, § 45.) If, as held by the -County Court, a corporation becomes a resident of the county where .-its secretary resides, it would become a resident of every county in •which any of its officers happen to reside. This is not the law.

, The defendant is authorized to hold camp meetings within the 'bounds of the Troy conference; and the jurisdiction of the justice :is sought to bo sustained on the ground that the county of Albany is within the Troy conference.

■ The jurisdiction of justices’ courts is not regulated by the limits ■of conferences, nor are the domicils of corporations. Nad the statute authorized the defendant to hold camp meetings in any •county in this State, and having fixed its domicil in Saratoga -county, and never having owned property, or had a place of business in any other county, it would not become a resident of every ■county in this State in which one of its officers happen to reside. We think this action cannot be maintained on the merits, and that The verdict ought to have been set aside as against the evidence.

, :The plaintiff commenced work for the defendant in August, 1875, and continued until about the middle of March, 1878, when lie was discharged. During this- time he signed thirty-two receipts, of which the following is a copy :

“ Received from the Round Lake Camp Meeting Association, by the hand of J. D. Rogers, Superintendent, the sums set opposite ouY respective names in full, for services as above specified.”

Seventeen of these receipts specified the kind of service rendered,, the number of days of service performed, the price per day, and the total amount earned during the month. Fifteen of these receipts specified the kind of service rendered, the number of hours of service performed, the price per hour, and the total amount earned during the month. The plaintiff testifies that during liisservice, he made almost daily memorandums of the amount of his-over-work. Notwithstanding this, he made no claim for it when he signed these various receipts, or at the time of his discharge j and not until six months after his discharge. He produced, on the trial, a statement made up from this memorandum book, but not the book; he forgot it, or could not find it.

In the face of the plaintiff’s conduct for nearly three years, and these thirty-two receipts, this is incredible.

Had the plaintiff understood that he was entitled to pay for work done outside of the usual ten hours’ labor we think he would not have signed these fifteen receipts specifying the number of hours’ service rendered, with the further statement that it was in full,, without some suggestion that more was his due.

The plaintiff testified that in Jone, 1875, the defendant’s superintendent told him he was going to make his pay $1.50 per day ~ should pay no more, and make no allowance for over-time ; and that he went on and worked under that agreement.

By continuing in service after this express statement of the terms: upon which he was employed, he is not entitled to recover for overtime.

The judgment of the County Court is reversed, with costs.

Bocees, J., concurred.

Learned, P. J.:

I concur in the result, but as the justice’s court had no jurisdiction, I think the merits are not before us.

Judgment reversed, with costs.


author: Martin, J.:

text:
    ELIAS AYRES, Appellant, v. WATER COMMISSIONERS OF THE CITY OF BINGHAMTON, Respondents.

      Expert — proper form, of question to.

    On the hearing of an issue as to whether an excavation in a city street was properly refilled, an expert witness who had heard the evidence as to such refilling, was asked and allowed to answer the following question: “ How would you fill such an excavation ?”

      Meld, that while it was proper for the witness to state what would have been a proper manner of refilling the excavation, it was an error to allow him to testify how he would have refilled it.
    One who has personal knowledge of the facts of a case may give his opinion as-an expert, but ho cannot give such opinion when he possesses no knowledge of the facts except such as he derives from having heard the testimony of other witnesses.
    Where a witness, offered as an expert, has not personal knowledge as to the-facts, he can only testify in answer to hypothetical questions which assume the existence of the facts claimed by the party conducting the examination to have been proved.
    The fact that one issue existed in the case, which might have been decided in favor of the successful party, does not justify the appellate court in disregarding errors in the admission of testimony bearing upon a different issue, and holding that the evidence so admitted was harmless.
    Exceptions ordered to be beard at tbe General Term, in tbe first instance, after a verdict in favor of tbe defendants at tbe Broome County Circuit.
    Tbis action was brought by tbe plaintiff against tbe defendants., tbe water commissioners of tbe city of Binghamton, for tbe recovery of damages for injuries claimed by tbe plaintiff to have been caused by tbe neglect of tbe defendants in filling an excavation which they had made in one of tbe city streets, for tbe purpose of repairing or relaying tbe water pipes.

      Q. A. /Sessions, for tbe appellant.

      B. G. MiZla/rd, for tbe respondents.
   Martin, J.:

One of tbe principal questions litigated, on the trial, of this action was whether a certain excavation made by the defendants in one of the streets of a city was properly refilled.

On the trial the defendants called one Dillon as a witness and -expert, and after proving by him that he had' heard the evidence of Belter, who was a witness for the defendants, and who had testified ;as to the manner of refilling the excavation in question, the witness was ashed the following question : How would you fill such an •excavation ?” This question was objected to by the plaintiff as improper; the court overruled the objection and the plaintiff excepted. This exception was, we think, well taken; for although the defendant had the right to prove what was a proper manner of refilling such an excavation, yet it was wholly immaterial how the witness would have refilled it, and the testimony of the supposed .action of the witness was at most a mere conjecture or speculation upon his part as to what he would have done in this particular case, and was inadmissible. (Greenl. on Ev., § 401; Berthon v. Loughman, 2 Starkie, 258; Rich v. Jakway, 18 Barb., 357; Insurance Co. v. Cotheal, 7 Wend., 82; Rawls v. Insurance Co., 27 N. Y., 293; Newell v. Doty, 33 Id., 94; Cowdrey v. Coit, 44 Id., 382; Bank v. Mudgett, 44 Id., 523; Hotchkiss v. Mosher, 48 Id., 478; Sturm v. Williams, 6 J. & S., 348; Dolz v. Morris, 10 Hun, 201.) We are also of the opinion that the court'erred in allowing the witness Mason to testify that in his judgment the excavation in question was properly refilled. This witness had no personal knowledge cf the excavation, nor of the manner in which it was refilled; his cpinion was founded wholly upon the evidence which had been given "by the witnesses for the defendant. Under such circumstances a witness, without previous knowledge as to the manner in which this excavation was refilled, was not competent to testify that it was properly or improperly refilled. That question was for the jury, and was not within the province of this witness. When a witness has personal knowledge of the facts upon which his opinion is founded he may give an opinion as an expért, predicated on such facts. (Bellinger v. New York Central R. R. Co., 23 N. Y., 42; Curtis v. Gano, 26 Id., 426; Conhocton, &c. v. B. N. G. & E. Railroad Co., 3 Hun, 523.) But when he possesses no such knowledge and, as in this-case, has no knowledge of the facts except such, as he derived from the evidence of other witnesses, he cannot properly be allowed to give such direct opinion. It is not in the province of a witness to reconcile and draw inferences from the evidence of other witnesses and to take such facts as he thinks their evidence has established •or as he can recollect, and thus form and express an opinion. If the party desires the opinion of such a witness he may put to him hypothetical questions, assuming some or all of the facts claimed by the party to have been established by the evidence, and thus obtain his opinion. When the question is thus stated the witness gives his opinion on a definite state of facts and the province of the jury is not interfered with. The jury can then determine whether the facts assumed exist, and give to such an opinion such weight as they think it entitled to, with a full knowledge of the facts upon which it is based. (Rogers v. Rhodeback, 5 N. Y. Legal Obs., 334; People v. Lake, 12 N. Y., 358; Crofut v. Ferry Co., 36 Barb., 201; Taylor v. Monnot, 4 Duer, 116; Carpenter v. Blake, 2 Lans., 206; Hoard v. Peck, 56 Barb., 202; Reynolds v. Robinson, 64 N. Y., 589; Freeman v. Lawrence, 11 J. & S., 288.)

The defendant, however, contends that the plaintiff was not injured by the reception of this evidence, and that, therefore, a new trial should not be granted, although the evidence was improperly received. We cannot so hold. This evidence may, and for aught we can see, did influence the jury in rendering a verdict for the defendant. The fact that there was another issue in this case upon which the jury may have found in favor of the defendant, is not sufficient to justify us in holding that the reception of this evidence was harmless. We cannot say that such testimony did, in no way work a prejudice to the plaintiff. “When improper testimony is admitted which may have influenced the minds of a jury, the judgment must be reversed.” (Bennett v. McGuire, 58 Barb., 625; Underhill v. N. Y. & H. R. R. Co., 21 Id., 496; Dresser v. Ainsworth, 9 Id., 619; Starbird v. Barrons, 43 N. Y., 200; Reynolds v. Robinson, 64 Id., 596.)

A new trial in this action must, therefore, be granted, with costs to abide the event.

Present — Learned, P. J., Bookes and Martin, JJ.

New trial granted, costs to abide event.


author: 'Martin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ANNA KINGSLEY v. GEORGE E. PRATT, Recorder of the City of Elmira.

      Arrest for misdemeanor — not proper without process — construction of a city ordinance authorizing such arrest — form of a complaint before a magistrate.

    A police officer is not authorized, without process, to arrest a person as a common prostitute, on the ground that she is a disorderly person, unless the offense was committed in his presence.
    A city ordinance providing that “policemen shall have power * * * to arrest * * * all vagrants, common prostitutes, drunkards and other disorderly persons found in the city,” must be construed as a power to arrest such offenders in the manner required by the general common and statutory law of the State, and not as giving additional power to such officers, not warranted by and not in harmony with such general law.
    A complaint before a police magistrate to tiie effect that the complainant had heard aud believed a person to be a common prostitute, without stating the source of his information, or the grounds of his belief, will not justify the magistrate in proceeding with the trial of the person upon such charge.
    Certiorari to tbe recorder of tbe city- of Elmira, to bring up for review tbe proceedings bad before bim for tbe conviction of tbe relator as a disorderly person.
    Tbe relator was arrested by a policeman in tbe city of Elmira, without any warrant. After sucb j arrest a complaint was made as follows:
    “Chemung County, City of Elmira. ^
    ss''
    “James Kelly, on information and belief, on oatb complains that at said city on tbe 1st day of January, 1879, and on divers days and times between that day and the present time, Anna Kingsley was, and now is a disorderly person, to wit, a common prostitute, and has during tbe time aforesaid, for gain, permitted and procured men to visit her at her rooms in sa^d city and with them committed whoredom and fornication.
    ; JAMES KELLY.
    “ Subscribed and sworn before me, this 18th day of March, 1880.
    “ George E. Pratt,
    “ Recorder of said city.”

      C. A. Poison and Roswell R. Moss, for the relator.

      H. S. Rockwell, for the respondent.
   'Martin, J.:

The relator was arrested by a policeman of the city of Elmira, without any warrant or other process therefor. After such arrest a complaint was made against her by one Kelley, who alleged therein upon his information and belief, that she was a disorderly person in that she was a common prostitute. Upon this complaint the relator was tried, convicted and sentenced by the recorder to six month’s imprisonment in the Monroe county penitentiary.

It is now insisted that such arrest was unauthorized, the complaint upon which she was tried insufficient, and that'the recorder, therefore, never acquired any jurisdiction as to the person of the relator, and that the conviction by him was consequently erroneous '.and void.

At common law an officer has the right without process to arrest •any person who is guilty, or who he has reasonable cause to suspect of being guilty of a- felony, and also to arrest any person engaged in a breach of the peace or other misdemeanor, when ■the offense is committed in view of the officer making the arrest. But in this case, the offense for which the relator was arrested was not committed in the presence of the officer making the arrest, nor had he any process authorizing such arrest; and we have neither been cited to nor been able to find any authority justifying an arrest by an officer without process, for an offense of the grade •of that of which the relator was convicted, unless it was committed in the presence of such officer, and we think no such authority exists, unless in cases where it is expressly given by statute. . (People v. Bush, 1 Wheeler Cr. Cas., 137; Taylor v. Strong, 3 Wend., 384, note a; Com. v. Carey, 12 Cush. 246; Commonwealth v. McLaughlin, Id., 615; Sternack v. Brooks, 7 Daly, 142; Hennessy v. Connolly, 13 Hun, 173; Meyer v. Clark, 9 J. & S., 107, and cases cited.) Moreover, when such arrest is authorized to be made without process, it is at least the better practice, if not indispensable to the regularity of the proceeding, to convey the offender at once before a magistrate, and there make complaint, and cause the issuing of a warrant against the accused for the offense committed. (1 Colby Criminal Law, 140.) We are also unable to find that any statutory authority Existed, giving the 'officer power to make this arrest without, process. The Revised Statutes expressly provide, that a complaint shall be made and a warrant, issued for the arrest of a disorderly person. (1 R. S., 638.) And the charter of. the city of Elmira only provides, that the policemen shall have power to arrest persons found by them violating the-laws and ordinances of the city. (L. 1875, ch. 370, § 103.) By neither of these statutes is power given to an officer to arrest in such, a case as this without a warrant therefor. The respondent, however, contends that this arrest was authorized by an ordinance-of the city, which provides that the chief of police and policemen shall have power, and are hereby required to arrest all persons engaged in the commission of any crime, misdemeanor, or breach of the peace, and in violation of the ordinances of the city of Elmira ; and all vagrants, common prostitutes, drunkards and other disorderly persons found in the city.” We do not think so. Assuming this ordinance to be valid, and the power to arrest mentioned in it must be construed as a power to arrest such offenders-in the manner required by the general, common and statutory law of the State, and not as giving additional power to such officers,, which is unwarranted by and not in harmony with such general law. (Bishop on Statutory Crime, § 22.) We are therefore of the-opinion that the relator’s arrest without process was unwarranted.

The complaint in this case was also insufficient. It alleged, upon information and belief only, that the relator was at the times therein mentioned a disorderly person, to wit: a common prostitute, without stating any fact or circumstance showing or tending to show that she was such prostitute. It at most contained an allegation to the effect that the complainant had heard and believed her to be a-common prostitute, without stating the source of his information or the ground of his belief. This was not enough to justify the recorder in proceeding with the trial of the relator upon that charger (1 Colby Criminal Law, 139; Comfort v. Fulton, 13 Abb. Pr., 276; Blodgett v. Race, 18 Hun, 132.)

The relator’s arrest having been unauthorized, and the complaint insufficient, we think that the recorder did not acquire jurisdiction, as to the person of the relator, and that his proceedings and conviction of the relator must be reversed.

This conclusion renders it unnecessary to examine the other questions raised in this case.

Present — Learned, P. J., Bookes and Martin, JJ.

Judgment and conviction reversed.


author: Follett, J. ;

text:
    ANDREW S. COOK, Appellant, v. HORACE B. DARROW, Respondent.

      County court — judgment on a report of a referee in an action commenced in a justice's court and re-tried in a County Court — how remewed — motion for new trial need not he made in county court.

    Appeal from a judgment of the County Court of Broome county, entered upon the report of a referee in favor of the-defendant.
    This action was commenced in a justice’s court, and was brough by an appeal into the County Court for a re-trial.' The case was-re-tried before a referee and a judgment entered upon his report. An appeal was taken to the General Term. The respondent moved to dismiss the appeal upon the ground that a motion for a new trial had not been made in the County Court.
    The court, at General Term, said : “ Under the Code of Civil Procedure a trial by a referee cannot be reviewed by a motion for a. new trial founded upon error in fact or law, except the decision directs an interlocutory judgment to be entered, in which case a, motion for a new trial may be made at General Term. (Code Civ. Pro., §§ 1001, 1002.) These sections apply to and regulate the practice in the County Court. (Temporary act, L. 1876, ch. 449, §§ 4, 7.) The only method, under the new Code, of reviewing the decision of a .referee in an action in the County Court, is by an appeal to the General Term of the Supreme Court. {Kilmer v. O'Brien, 13 Hun,- 224.) The Code makes no distinction between actions brought in the County Court and those begun in a. justice’s court and brought by appeal into the County Court. The method of reviewing the errors of the County Court is the same in both classes of cases, except the Supreme Court cannot review an order of the County Court made in an action brought in a justice’s court. (Andrews v. Long, 9 N. Y. Week. Dig., 513; Fish v. Thrasher, 21 Hun, 15.) When the whole issue is tried by a referee, except as otherwise expressly prescribed by law (which exception does hot include this case), the referee’s report stands as a decision of the court, and judgment may be entered thereon upon filing the report. (§ 1228.) This section is also applicable to County Courts. (Temporary act, L. 1876, cb. 449, § 8.)

      “ The judgment entered upon the report of the referee is the judgment of the County Court, the .same as though the action had been tried by a county judge without a jury.
    “ We do not 'think it can be seriously contended that the judgment entered upon the decision of a County Court, tried without a jury, cannot be reviewed by appeal to the General Term until after a motion for a new trial has been made in the County Court. Such practice is not provided for or contemplated by the Code.”

      W. D. Edmister, for the appellant.

      Soovill <& Ee Witt, for the respondent.
   Opinion by

Follett, J. ;

Learned, P. J., and Bookes, J., concurred.

Judgment reversed; new trial granted; costs to abide event, and reference discharged.


author: per Curiam.

text:
    DANIEL E. DONOVAN, Appellant, v. JAMES H. VANDEMARK, Respondent.

      Costs — taxation of — when the party, finally succeeding, is entitled to the costs of an unsuccessful appeal taken by him.

    Appeal from an order, made at a Special Term, striking'from the costs, as taxed, the sum of $147.50.
    ' This action was brought to recover about eighty acres of land!' The plaintiff’s right to recover depended upon the validity of a trust contained in the will of Andries Schoonmaker, deceased. Upon the first trial at the Circuit, the justice held the trust invalid, and ordered ■ judgment for the defendant. The plaintiff appealed to the" General Term, 'where the judgment given at the Circuit was' affirmed. The plaintiff "then appealed to" the Court of Appeals,' where the judgment appealed from was reversed, and a new trial granted, with costs to abide the event, the Court of Appeals holding the trust to be valid. The judgment of the Court of Appeals was, by an' order, duly made the judgment of the Supreme Court. Upon a second trial at the Circuit the justice, adopting the decision of the Court of Appeals, gave judgment for the plaintiff, with costs. Upon taxing the costs, the defendant objected to the plaintiff’s taxing the costs incurred at General Term, on the ground that the plaintiff had not there, been successful. The clerk, however, allowed those costs. The defendant then moved at Special Term, where an- order was granted disallowing those costs, and from that order the plaintiff now appeals.
    The court, at General Term, said: “ The plaintiff is successful in the action. The action is in ejectment. Hence the plaintiff is entitled to all the costs of the action, including all costs in the progress of the case, excepting costs of special motions which do not go into final costs unless specially ordered.
    “ The order should be reversed, with $10 costs, and disbursements, and the motion to strike out costs denied, with $10 costs.”

      J. E. Van Etten, for the appellant.

      J. N. Fiero, for the respondent.
   Opinion

per Curiam.

Present — Learned, P. J.-, and Bookes, J.; Westbrook, J., taking no part.

Order reversed, with $10 costs, and disbursements, and motion, denied, with $10 costs.


author: Bocices, J.;

text:
    MARTIN LACKIN, Respondent, v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL COMPANY, Appellant.

      liability of d railroad company for an animal killedonits track, through its neglect to maintain cattle-guards and fences — interest on the value of the animal killed, when allowed.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover damages for the loss of the plaintiff’s mare, killed while straying on the defendant’s track. • The court, at General Term, said: “ The referee has found, and, as we think, on sufficient evidence to sustain the finding, that the mare got upon the defendant’s road without the fault of the plaintiff, and was there struck and killed by the defendant’s train, and that the injury was occasioned through the defendant’s omission to construct and maintain cattle-guards at road-crossings, or to maintain a fence along the line of the road, as by law required. The evidence sustains these findings in all reasonable probability. A different finding would be unreasonable, and, as'we think, would be clearly against the preponderance of proof.

      “ Accepting these facts as well found, with those entirely uncontroverted, and the defendant’s liability is beyond peradventure. (iGrcmford v. New York Geni/ral ds Hudson Rimer R. R. Go., 18 ■Hun, 108.) The case cited, with those there referred to, covers every point that can be raised in this, excepting, perhaps, the objection that the referee allowed interest upon the value of the property destroyed in the estimate of damages. • In this he is sustained by the decision in Parrott v. Knickerbocker di: N. Y. Ice Go. (46 N. Y., 361), and in Whitehall Transportation Go. y. New York Steamboat Go. (51 N. Y., 369). These cases have never been questioned as we can learn. They are not referred to in White v. Miller (9 Week. Dig., 153), and cannot therefore be declared tobe overruled by that ease.”

      J. G. Rv/nkle, for the appellant.

      J. F. Crawford, for the respondent.
   Opinion by

Bocices, J.;

Follett, J., concurred; Learned, P. J., taking no part.

Judgment affirmed, with costs.


text:
    THE FIRST NATIONAL BANK OF SAUGERTIES, Respondent, v. AUGUSTA A. HURLBUT, Appellant.

      woman — note given by — when her separate estate is charged by it — when words “personal estate ” construed to mean “ separate estate

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon a promissory note made by the defendant.
    The referee found that on or about December 15, 1876, the defendant, Augusta A. Iiurlbut, applied to the plaintiff, the First National Bank of Saugerties, for a loan of $500; that the defendant requested the plaintiff to discount the note for that amount, and srated that, she had some taxes to pay in Brooklyn, and wanted the money fonthe purpose of paying taxes on her property there; that the plaintiff discounted her note for $500, and thereupon the defendant’s husband, J. M. Iiurlbut, at the defendant’s request, drew •his check against the moneys realized for the sum of $150, which check was certified by the plaintiff, and which the defendant stated was for the purpose of paying the taxes on her property; that on December 20, 1876, defendant requested the plaintiff to discount her note for $700, which was done, and out of the proceeds of such discount the note of December 15, 1876, for $500 was paid, that haring been the agreement under which the said discount was given, and the balance remaining was passed to the credit of the defendant; that on March 20, 1S77, the defendant made the following promissory note in form as follows:

      u $700. . Brooklyn, March 20, 1877.
    “ On demand, I promise to pay to order of the First National Bank of Saugerties seven hundred dollars at First National Bank of .Saugerties, value received, to be paid from my personal estate.
    (Signed) “A. A. HURLBUT.”
    That such note was received by plaintiff in renewal of the note •of December 20, 1876.
    The referee found, as conclusions of law, that defendant was liable on her note so made March 20, 1877, for the payment of the sum •therein mentioned, with interest, and that plaintiff was entitled to ■recover from defendant the sum of $821.65. . . . ■
    The court, at General Term, said: “ The referee properly held that by .the note the defendant charged her separate estate. The word ‘personal was evidently used, not in distinction from •‘real, but in the meaning of ‘private, \ individual, or ‘separate.The note was to be paid out of the estate whieh( belonged' to her personally. All the circumstances show that was the meaning of the words. The previous notes had, in more formal words, charged her separate estate. The money, or at least most of it, had gone to the benefit of her property. The defendant herself wrote the clause in question; and to suppose that she used the word ‘ personal in its peculiar legal meaning is out of- the question. She plainly used it with the-meaning above indicated of ■‘ separate, intending to charge the estate which belonged to her, and her intention should not be thwarted.”

      Theodore B. Gates, for the appellant.

      P. Gcmtine, for the respondent.
   Opinion

per Curiam.

Present — Learned, P. J., Bookes and Landon, JJ.

Judgment affirmed, with costs.


author: Bookes, J.

text:
    In the Matter of the Assignment of REYNOLDS CARPENTER.
   Order reversed, and to be settled before Bookes, J., in accordance with opinion. .

Opinion by

Bookes, J.


author: Bockes, J. Learned, P. J.

text:
    THE ST. VINCENT’S FEMALE ORPHAN ASYLUM OF THE CITY OF TROY, Appellant, v. THE CITY OF TROY, Respondent.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.

Memorandum by

Learned, P. J.


author: Martin, J.

text:
    WILLIAM C. RANDALL, late Sheriff of the County of Clinton, Appellant, v. JOHN O’BRIEN, Respondent.
   Judgment affirmed, with costs.

Opinion by

Martin, J.


text:
    ROBERT NELSON and JOHN NELSON, Respondents, v. JOHN HEERMANS, Appellant, Impleaded, &c.
   Judgment reversed, new trial granted, costs to abide the event, and reference discharged.

Opinion by

Martin, J.


author: Learned, P. J.

text:
    MARY A. BURNHAM, Respondent, v WILLIAM S. DOUGLASS, Appellant.
   Judgment reversed, new trial granted, costs to abide event.

Opinion by

Learned, P. J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SILAS H. WITHERBEE, Survivor, &c., Respondent, v. THE BOARD OF SUPERVISORS OF THE COUNTY OF ESSEX, Appellant.
   Judgment modified, and as modified affirmed, without costs of appeal to either party.

©pinion by

Learned, P. J.


author: Bocees, J.

text:
    CHARLOTTE TABOR and WILLIAM BRADLEY, Appellants, v. K. EUGENE BUNNELL and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Bocees, J.


author: Follett, J.

text:
    CHARLES F. RIKER, Respondent, v. THE VILLAGE OF ITHACA, Appellant.
   Judgment reversed, new trial granted, costs to abide event; reference discharged.

Opinion by

Follett, J.


text:
    WARREN BEARDSLEY, Appellant, v. JAMES M. BOWKER and JAMES BOWKER, Respondents.
   Judgment reversed, new trial granted, costs to abide event.

Opinion by

Follett, J.


text:
    EDWARD L. BENNETT, Respondent, v. WILLIAM WHITNEY, the Street Commissioner of the City of Binghamton, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Learned, P. J.


text:
    HARRIET A. DEWAREE, Respondent, v. GEORGE E. HATHAWAY and WARREN G. WILLIS, Appellants.
   'Judgment affirmed, with costs.

Opinion by

Bocees, J.


author: Bocees, J.,

text:
    THOMAS DORAN, Respondent, v. THE FRANKLIN FIRE INSURANCE COMPANY, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bocees, J.,

and dissenting one by Learned, P. J.


text:
    JOHN G. FARNSWORTH, as Receiver, &c., Respondent, v. DARIUS S. WOOD and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bocees, J.


author: Bocees, J.;

text:
    JOHN P. WEBBER, Respondent, v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL COMPANY, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bocees, J.;

Learned, P. J., taking no part.


text:
    MARTHA P. ROSA, Appellant, v. FREEBORN CHURCHILL, Respondent.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Follett, J.


text:
    In the Matter of the General Assignment of EDWARD C. KOONZ.
   Order affirmed, with $10 costs and disbursements.

Opinion by

Bocees, J.


text:
    NELSON MIDDAUGH, Appellant, v. ALFRED TABER, Respondent.
   Judgment affirmed, with costs.


text:
    THE FIRST NATIONAL BANK OF AUBURN, Respondent, v. CHARLES BUTTON, Appellant.
   Order affirmed, with costs.

Opinion by

Learned, P. J.


text:
    HENRY M. PARTRIDGE, Respondent, v. THEODORE BARTHOLOMEW, Appellant.
   Judgment reversed, new trial granted, costs to abide event; ref-. erence discharged.

Opinion by

Bocees, J.


text:
    DANIEL W. CLARK, Appellant, v. JOHN BRADY, Respondent.
   Judgment affirmed, with costs.


text:
    In the Matter of THE WORLD MUTUAL LIFE INSURANCE COMPANY.
   Appeal dismissed, with $10 costs.


text:
    In the Matter of SKELLINGER, for Letters of Administration.
   Motion to dismiss appeal denied, with $10 costs.


text:
    JAMES H. WOODFORD v. BENJAMIN J. CHAPMAN.
   Appeal dismissed. (See order.)


text:
    REBECCA TRULL, Respondent, v. WILLIAM WOOD, Appellant.
   Order affirmed, with $10 costs, and disbursements.


text:
    HENRY FLANDER, Appellant, v. HAMILTON GROFF, Respondent.
   Order reversed. (See order on file.)


text:
    AGNES TINKEY, Respondent, v. CHARLES A. LANGDON, Appellant, and HENRY D. LANGDON.
   Appeal dismissed, with $10 costs, and disbursements.


text:
    JEROME MESSINGER as Executor, &c., Respondent, v. I. NEWTON MESSINGER, and others, Appellants.
   Order affirmed, with $10 costs, and disbursements.


text:
    BRIDGET GIBSON, Plaintiff, v. JOHANNA KEATING, as Administratrix, &c., Defendant.
   Motion for new trial denied, and judgment ordered on -nonsuit, with costs.


text:
    SEWARD A. FOOTE, Appellant, v. THE DELAWARE & HUDSON CANAL COMPANY, Respondent.
   Appeal dismissed.

Learned, P. J., taking no part.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY.
   Order affirmed, with $10 costs and disbursements.

Westbrook, J., taking no part.


text:
    GEORGE SIDNEY CAMP, as Executor, &c., Appellant, v. SAMUEL S. WATSON, Respondent.
   Order affirmed, with $10 costs and disbursements.


text:
    CYRUS S. ROBINSON, Respondent, v. JAMES AKIN, Appellant.
   Appeal dismissed, with $10 costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GILBERT GEER, Jr., and others, Appellants, v. THE COMMON COUNCIL OF THE CITY OF TROY, JAMES C. SHANLEY, and others, Respondents.
   Order affirmed, with $10 costs and disbursements.

Learned, P. J., taking no part.


text:
    JESSE A. SHAW, Appellant, v. HARRIET S. HAMILTON, Respondent.
   Decree of surrogate affirmed, with costs against appellant.


text:
    IRENA HULL, Administratrix, &c., and JOHN DENNISON, Administrator, &c., Respondent, v. THE VERMONT CENTRAL RAILROAD COMPANY, Appellant.
   Judgment affirmed, with costs.


text:
    HARRIET E. JOHNSON, Respondent, v. GEORGE SIDNEY CAMP, as Executor, &c., Appellant.
   Order affirmed, with‘costs.


text:
    JOSEPH KRING, as Executor, &c., Respondent, v. ABNER POWELL, Appellant.
   Judgment affirmed, with costs.


text:
    JOHN W. BROWN, Respondent, v. THE CITY OF ELMIRA, Appellant.
   Motion for new trial denied, and judgment ordered for plaintiff-on verdict, with costs.


text:
    JOHN E. WENTZ, Appellant, v. JAMES B. BROWN, Respondent.
   Judgment affirmed, with costs.

Memorandum by

Learned, P. J.


text:
    JOHANNA KEATING, Administratrix, &c., Respondent, v. ST. MARY’S CHURCH, HUDSON, N. Y., Appellant, Impleaded with THE HUDSON CITY SAVINGS INSTITUTION.
   Judgment affirmed, with costs.


text:
    WILLIAM RUTHERFORD, as Treasurer of the Madrid Cheese Factory, Respondent, v. THOMAS BAMBER and others, Appellants.
   Judgment armed, with costs.


text:
    THE BANK OF WHITEHALL v. MARIA TISDALL, and others, Administrators.
   Judgment affimmed, with costs.


text:
    In the Matter of the SURROGATESHIP OF ST. LAWRENCE COUNTY.
   Motion granted.


text:
    RENSSELAER RILEY v. JOHN C. HULBERT.
   Motion to dismiss appeal denied, with $10 costs.

Bookes, J., taking no part.


text:
    ALSTON W. HULBERT, and another, as Executors, &c., of MARY BRAINARD, deceased, Appellants, v. ADAM NICHOL, Respondent.
   Motion for reargument, and for leave to go to the Court of Appeals denied, with $10 costs.


text:
    WILLIAM A. NYE v. THE NORTHERN CENTRAL RAILROAD COMPANY.
   . Motion to dismiss appeal denied, with $10 costs.


text:
    THE ST. LAWRENCE UNIVERSITY, Appellant, v. STEPHEN ROOD and MARY E. ROOD, his wife, Respondents.
   , Order affirmed, with $10 costs, and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. HENRY D. DENISON and others, Appellants.
   Order affirmed, with $10 costs, and disbursements.


text:
    DAVID H. CARVER, as Receiver, &c., Respondent, v. KATE C. HALL and others, Appellants.
   Order reversed, with $10 costs, and disbursements, and motion panted, with $10 costs.


text:
    EDWARD J. CHAPIN, Appellant, v. JOSEPH THOMPSON, Respondent, Impleaded, &c.
   ■Order affirmed, with $10 costs, and disbursements.


text:
    HERMAN VEEDER, Respondent, v. BENJAMIN M. BAKER, Appellant.
   Order affirmed, with $10 costs, and disbursements.-

Memorandum by

Learned, P. J.


text:
    JAMES H. VAN GELDER, Respondent, v. DAVID H. VAN GELDER and others, Appellants.
   Order reversed, with $10 costs, and disbursements, and motion denied, with $10 costs.


text:
    GEORGE S. MISNER, Respondent, v. THE ULSTER & DELAWARE RAILROAD COMPANY, Appellant.
   Affirmed, with costs.


text:
    FEIST LEWALD, Respondent, v. HENRY G. BURLEIGH and BRACKETT W. BURLEIGH, Appellants.
   Judgment affirmed, with costs.


text:
    CHAUNCEY R. N. CHAMPLIN, Appellant, v. GEORGE W. NICKERSON and ANDREW M. LOW, Respondents.
   Judgment affirmed, with costs.


text:
    JACOB LEPPER and FREDERICK LEPPER, Respondents, v. REBECCA LEPPER, Appellant.
   Judgment affirmed, with costs.


text:
    CHARLES T. LELAND, Respondent, v. THE GLEN’S FALLS, LAKE GEORGE & CHESTER STAGE COMPANY, Appellant.
   Judgment affirmed, with costs.


text:
    HARVEY J. KING, Respondent, v. OSCAR B. ARNOLD, Appellant.
   Order affirmed, with $10 costs and disbursements.


text:
    JOHN ROHRBACH, Appellant, v. THE GERMANIA FIRE INSURANCE COMPANY, Respondent.
   Order affirmed, with $10 costs, and disbursements and printing.


text:
    STEWART WILSON, Respondent, v. MICHAEL DONAHUE, Appellant.
   Judgment affirmed, with costs.


author: Talcott, P. J.:

text:
    THE COMMERCIAL BANK OF KEOKUK, IOWA, Appellant, v. CHRISTIAN PFEIFFER and others, Respondents.

      Condition, upon which a promise to accept a draft is made, must be proved— One who discounts a draft, with a bill of lading attached, acquires title to the property shipped— What allegations do not show damages to have been caused by the default of the other ■party — The failure of the plaintiff to separately state and number different causes of action is not a ground for a nonsuit — When the lorn will imply a contract, though an express one has been made — When a party dealing with a de facto corporation cannot deny its existence.

    ‘The complaint herein alleged that prior to January 11, 1877, the defendants had agreed with the plaintiff, that if one Quick should purchase cattle and hogs, and draw a sight draft upon’them, for -the cost thereof, less the sum of §50 for each car load, and attach thereto bills of lading showing that such cattle and hogs were shipped to them, that then, upon' being notified ■of the shipment and of the amount of the draft, the defendants would pay the same on sight; that on January 11, 1877, the said Quick shipped to the defendants eighty-six cattle and one hundred and thirty-five hogs, and attached the bills of' lading therefor to a sight draft for $5,778, drawn by him upon the defendants to the order of the* plaintiff’s cashier; that the plaintiff advanced the money to Quick for the purchase of the cattle and hogs, and that, as it'believed, the amount of the draft was less than their cost by at least $50 on each car load; that at the time of making such advance Quick sold arid delivered the said cattle and hogs to the plaintiff and agreed that it should be and continue the owner thereof until repaid the money advanced by it; that upon presentation of the draft the defendants refused to pay the same; that they subsequently paid to the plaintiff from the proceeds of the shipment the sum of $5,249.47, and converted the balance of such proceeds to their own use, and the plaintiff prayed judgment for the damages thereby sustained.
    Upon the trial the defendants claimed that the amount for which the draft was drawn was the full cost of the cattle and hogs'shipped, and that the sum of $50 for each car load thereof had not been deducted therefrom as. agreed upon.

      Held, that to render the defendants liable upon their promise to accept and pay the draft., performance of the conditions'upon which the promise was made must be proved by the plaintiff, and that, having failed so to do, no recovery upon the draft could be had by it.
    That the plaintiff, by discounting the draft, with the bill of lading thereto attached, acquired title to the cattle to the extent of the amount so advanced by it, and that the defendants were bound to account to it for the proceeds of the property shipped, after deducting therefrom their expenses and commission.
    That Iho allegations of the complaint were sufficient to entitle the plaintiff to-recover the proceeds of the property in this action.
    The defendants, by their answer, after denying certain of the allegations of the complaint, set up, “as a second answer, defense and counter-claim,” the making of the said conditional agreement to pay the drafts for the price of the cattle, and that on the 12th day of December, 1876, the plaintiff notified the defendants that it had discounted a draft, accompanied by a bill of hiding drawn by Quick, under the said arrangement, for $5,025; that the defendants, relying on the good faith of the plaintiff in seeing that the draft was drawn only for the actual cost price of the said cattle, less $50 per car load, and believing the same to have been so drawn, paid the draft; that the cattle realized only $4,644.65, and the defendants sought to set off the $380.35 so lost on that shipment.

      Held, that the facts stated did not constitute a counter-claim, as they did not. Show that the damages, if any, sustained by the defendants, were caused by the failure of the plaintiff to see that the $50 per car load was deducted from the price of the cattle.
    When a complaint contains a statement of the facts necessary to constitute two distinct causes of action, the failure of the plaintiff to separately state and number them, cannot be urged as a ground for a nonsuit at the trial; if there be any doubt as to which cause of action the plaintiff intends to rely upon, the remedy of the defendant is by a motion to make the complaint, more definite and certain.

      The rule that where there is an express contract the law will not imply one,is only applicable to those cases in which the express contract and that implied by law relate to the same subject matter, and where the provisions of the express contract are intended to control and supersede those which would otherwise be raised by implication.
    A party who has assumed to contract with a de facto corporation by its corporate ñame, cannot afterwards, in an action brought by it upon such contract, deny its legal existence.
    Appeal from a judgment in favor of the defendants entered upon the trial of this action by the court without a jury.

      Sprague, Müburn db Sprague, for the appellant.

      II. C. Dap, for the respondents.
   Talcott, P. J.:

The complaint in this case alleges that prior to January 11, 1877, the defendants, under the copartnership name of “ Pfeiffer & Windsor Brothers,” agreed with the plaintiff, that if one 0. Quick should draw on them at sight for the cost of cattle and. hogs, to be purchased by him, less the sum of $50 to each car load of such cattle and hogs, and should attach to each draft a bill of lading, showing that said cattle and hogs were shipped to them, the defendants,, the said defendants, on being notified of the shipment and the amount of such draft, would pay the same at sight. That on the said 11th day of January, 1877, the said 0. Quick drew and delivered to the plaintiff a sight draft on the defendants, requiring them to pay to the order of the plaintiff’s cashier, the sum of $5,778, and charge the same to the account of eighty-six cattle and one hundred and thirty-five hogs, and that at the time said draft was drawn the said cattle and hogs were. duly shipped, to be forwarded to the defendants, and a bill of lading showing such shipment was attached to the draft, and the defendants were duly notified of such shipment and the amount thereof. That the plaintiff advanced the money to said Quick for the purchase of eighty-six cattle and one hundred and thirty-five hogs, and that; as the plaintiffs believe the amount of the draft was less' than the-cost of such cattle and hogs by the amount of $50 or more to each, car load thereof.

That at the time of such advance to Quick he sold and delivered the said cattle and hogs to the plaintiff, and agreed that the said plaintiff should be and continue the owner thereof, and that the same should continue the property of the plaintiff until the payment to it of the money so advanced by it; and that the said ■draft was afterwards duly presented to the defendants for acceptance and payment, but they refused to pay the same, except that on January 20, 1877, they paid from the proceeds of the said shipment the sum of $5,249.47, and converted the balance of such jiroceeds to their own use; and that by reason of the premises the plaintiff has been damaged in the sum of $1,000, and prays judgment for the damage sustained, with costs.

The defendants answer, denying all the allegations of the complaint, except as therein admitted, and then they admit the partnership of the defendants.

They then allege in substance as a second answer, defense <md •coimter-claim,” the agreement by which defendants agreed to pay Quick’s sight drafts, and that under said agreement, certain cattle and hogs were shipped to the defendants for sale from time to time, and drafts drawn upon the same which were paid by the defendants, and as the defendants believe such drafts were, at least, for the whole cost of such cattle and hogs without any deduction •of $50 per ear load, and that the defendants relied upon the honesty, good faith and care of the plaintiff, to see that the drafts •should be and were drawn only for the actual cost of the said cattle to Quick, less the sum of $50 per car load, and “ on the 11th •day of December, 1876, the defendants were notified that the said ■Quick had drawn a draft upon said defendants for $5,025, which the plaintiff had discounted, and that the same was accompanied by a bill of lading of three hundred and thirty-four hogs and sixty-seven sheep, consigned to the defendants under said arrangement, by which said draft was to be drawn at the actual cost price of said hogs and sheep less $50 per car load. That relying on the good ..faith and honesty of the plaintiffs in seeing that said draft was drawn only for the actual cost of said hogs and sheep less $50 per car load, and believing the same to have been so drawn under said arrangement or agreement aforesaid, the said defendants paid the same, the said hogs and sheep realizing only the sum of $4,644.65, by which these defendants were out the sum of $141.18 on said transaction.”

They then allege the making and delivery to the plaintiff of the said draft for $5,ll8 on January 11, 1811, that the same was accompanied by a bill of lading of eighty-six cattle and one hundred and thirty-five hogs; that the said plaintiff claimed and pretended that the same was drawn under the said agreement for the purchase price of said cattle and hogs, less $50 per car load; and, relying on the good faith of the plaintiff in drawing and discounting said draft under the agreement, the defendants received said cattle and hogs and sold the same, realizing therefor the sum of $5,631.82, but that both the said drafts were not drawn under the said agreement, but were in fact, drawn for the full price of said hogs, sheep and cattle, and that defendants have paid to the plaintiff the sum of $5,249.41, being the proceeds of said cattle [and hogs] less the sum of $380.35, the loss on the December shipment aforesaid.

The action was tried before the Hon. Albert Haight, one of the justices of this court, at the Erie Circuit, without a jury. The plaintiff gave in evidence a letter from the defendants, as follows, viz.:

“ East Buffalo, N. Y., April 25, 1816
“ Edmund Jaeger,
“ Ca. Commercial Bank, Keokuk, la.
u Dear Sir: We will pay 0. Quick’s drafts at sight with bill of lading attached, and $100 deducted from the cost as margin, cattle consigned to our care here, and we to be notified of shipment and amount of draft by telegraph. The above will insure your drafts prompt payment to the amount of cost of ten cars a week.
“Your truly,
“ PFEÍEEER & WINDSOR BROS.”

Also another letter from the defendants to the plaintiff as follows:

“East Buffalo, N.T., November 8, 1876.
“ Commercial Bank, Keokuk, Iowa.
“ Please suggest a $50 margin a car to Mr. O. Quick. Our letter of credit calls for more, but we will be content with above.
“Yours truly,
“PEEIFFER & WINDSOR BROS.”

Also the draft ’described in the complaint, on which was indorsed, a payment under date January 28, 1877, for $5,249.47.

The plaintiff then read in evidence portions of the answers of the defendants, to wit, that portion setting up the said arrangement to-pay 0. Quick’s drafts at sight for the cost of cattle and hogs to be-shipped to the defendants for sale, less the sum of $100 per car for each car load of cattle and hogs so shipped, and that portion of said answer in which the defendants alleged the making of said draft for $5,778 as described in the complaint, and stating that the same was accompanied by a bill of lading for eighty-six cattle and one hundred and thirty-five hogs, and that the plaintiff, pretended that the same was drawn under the said agreement for the cost of cattle and hogs to be shipped to the defendant for sale, less the sum of $100 per car for each car load of cattle and hogs so shipped, and that portion of said answer in which the defendants alleged the making of said draft for $5,778 as described in the complaint, and stating that the same was accompanied by a bill of lading for eiglitysix cattle and one hundred-and thirty-five hogs, and that the plaintiff pretended that the same was under the said agreement and that the draft was drawn for the purchase price of said cattle and hogs, less $50 per car load, and which furthermore stated that the defendants received the said cattle and hogs and sold the same, realizing therefor the sum of $5,631.82. And the plaintiff proved that the amount unpaid on the said draft with interest to the day of trial was $581.67, and rested.

The defendants then moved for a nonsuit and stated the following grounds for such motion.

1st. That the plaintiff has failed to made out a cause of action.

2d. The plaintiff has failed to prove its incorporation, or to show it has a right to maintain the action.

3d. Tbe plaintiff lias failed to show that tbé terms and conditions upon which the defendants agreed to accept said draft have •ever been performed. That the plaintiff has failed to show that the amount of said draft was less than the cost of said cattle and .hogs, by the amount of $50 for each car load thereof.

The motion for a nonsuit was denied, the court stating that it •was satisfied that the plaintiff had not made out a cause of action •on the draft, for the reason that it had not shown that it was drawn i'or $50 less upon each car load than the purchase price of the cat-tle, but intimated its opinion that the cattle having been received by the plaintiff and sold by the defendants as commission agents, "they were liable to the plaintiff for the net proceeds of such salo up to the amount of the draft which had been discounted by the plaintiff. The defendants then called as a witness Millard F. Wind:sor, one of the defendants, and proved by him that the defendants received the’eighty-six cattle and one hundred and thirty-five hogs, .and that there were six ear loads thereof — and that said cattle and hogs were received under the arrangement specified in the two letters of the defendants, one dated on April 25, 1816, the other November 8, 1816, and that.the defendants received on the sale •of said eighty-six cattle and one hundred and thirty-five hogs •$5,631.82 over and above all charges and commissions. The defendants also proved that on the shipment of December 12, 1816, under the same arrangement, there were three hundred and thirty-four hogs and sixty-seven sheep received by the defendants, shipped by Quick, and a draft drawn against them for $5,025, and that the .amount for which the sheep and hogs shipped December 12, netted at the sale by defendants, was $4^644.65, the difference being .$382.35.

The defendants’ counsel then renewed the motion for a nonsuit, .and the trial judge delivering a written opinion in the case, but without any findings of fact, otherwise than the following, to wit, ■“I find from the admitted facts in the complaint and answer in •this cause, as a conclusion of law therefrom, that the defendants ¿are entitled to a judgment against the plaintiff dismissing said «omplaint, with costs.” A judgment was accordingly entered.

We think the disposition of the case at the Circuit was correot, so far as the objection taken on the motion for a nonsuit, on the ground that the plaintiff had not shown itself to be a corporation is concerned.

It is well settled that the parties who have assumed to contract with a corporation de facto, as such, cannot afterward, in an action upon such contract, deny the legal existence of the corporation. (White v. Ross, 15 Abb. Pr., 66; White v. Coventry, 29 Barb., 305; Congregational Society v. Perry, 6 N. H., 164; Williams v. Cheney, 3 Gray, 215.) The defendants assumed to contract with the plaintiff by its corporate name.

The plaintiff was not entitled to recover upon the promise to-accept Quick’s drafts at sight, contained in the defendants’ letter of April 25, 1876, supplemented by the letter of November 8. The statute on the subject is: An unconditional promise in writing to accept a bill before it is drawn, shall be deemed an actual acceptance in favor of every person who, upon the - faith thereof shall have received the bill for a valuable consideration.” (1 P. S., 768, § 8.)

The performance of the condition is a condition precedent to the liability. (Mulhall v. Keenan, 18 Wall., 342; Bank, &c. v. Gibson, 5 Duer, 574; Nixon v. Palmer, 4 Selden, 398; Merchants’ Bank of Canada v. Griswold, 72 N. Y., 472.)

In order, therefore, t<5 charge the defendants with liability under the statute as an actual acceptor of the bill, it was necessary to establish that it had been drawn within the conditions prescribed by the defendant’s letters, and there was no proof showing that the amount of the bill was drawn for $50 less than the purchase price at which Quick, the drawer,-had bought the cattle and hogs shipped to the defendants. There was no evidence that the draft accorded with the conditions. But the delivery of a bill of lading, with the intent to pass the title to the goods mentioned therein, has the effect to pass such title.

The ordinary mercantile transaction of getting a draft on the consignees named in a bill of lading discounted, and attaching the bill of hiding to the draft, in the- absence of any further explanation,.affords prima-facie-evidence of such intention to pass.the tide to the goods mentioned in the bill Of lading to the’ extent of the amount called for by the draft. (City Bank v. R. W. & O. R. R., 44 N. Y., 136; Bank of Rochester v. Jones, 4 Id., 497; First National Bank of Cincinnati v. Kelly, 57 Id., 34.)

Therefore, it would seem that the defendants were accountable to the plaintiffs for the proceeds of the cattle and hogs received at East Buffalo by the defendants, and sold by them, less the expenses and commissions, in a proper form of action; but the learned judge at the Circuit held in regard to this, that the general rule of law is, that where an express contract is alleged, the law will not imply a contract.

This is true, but it can be applicable only to a case where the express contract and that implied by law relate to the same subject matter, and where the provisions of the express contract were intended to control and supersede those which would otherwise be raised by implication.

An implied contract is one which reason and justice dictate, and which the law therefore presumes that every man undertakes to perform, and in implied contracts the law implies from the antecedent acts of persons, and from general usage and custom, what the obligations of such persons are to be; whereas, if an express contract is made, the parties themselves thereby assume to define what their obligations are to be.

In implied contracts it is held that particular acts or existing facts give rise to particular duties or liabilities. “ The idea of a contract implied by law is a legal fiction, invented and used for the sake of the remedy, to enforce the performance of a legal duty.”

Where one has received and assumed to sell, as agent of the owner, the personal property belonging to another, the law l’aises an implied contract, that he will account to the owner for the proceeds.

Though it is probable that the defendants would have looked to the proceeds of the shipment of cattle and hogs to reimburse themselves for the payment of Quick’s draft, if it had been accepted and paid, yet that was not a part of the express agreement between the plaintiff and defendants. The defendants themselves, by their refusal to accept the draft, have declared- that it was not drawn within the purview of the arrangement. They therefore stand in the same position as if no draft had been drawn by Quick against the shipment. They have received and undertaken to sell the cattle and hogs of the plaintiff, and it would be most inequitable to allow them not only to refuse to accept the draft, but to receive and sell, and convert to their own use, the proceeds of the shipment against which it was drawn.

.The complaint is somewhat ambiguous in its character, and leaves it to a certain extent uncertain whether the action was brought to recover the amount of the draft as upon an acceptance thereof under the statute, or to recover for the proceeds of the cattle and hogs received and sold by the defendants; but it nevertheless avers that the cattle and hogs “were sold arid delivered to the plaintiff ” by Quick, and that he agreed “ that the plaintiff should be and continue the owner thereof, and that the same should be and continue the property of the plaintiff, until the payment to the plaintiff of the money advanced by it ” to Quick for the purchase thereof, and that the said cattle and hogs were received by the 'defendants and sold as the cattle and hogs belonging to the plaintiff.

The defendants apparently so understood it, and undertook to account for the proceeds, as they say, by deducting the loss on the December shipment and paying up the balance.

The plaintiff also alleges the drawing of the draft, and that defendants refused to accept or pay the same, but does not claim, in express terms, the payment of the draft} but' damages “ by reason of the premises.”.

It might be doubtful under the complaint whether the plaintiff intended to proceed on the draft, or for the proceeds of the sale of the cattle, but we cannot say that it does not contain a statement of the facts constituting a cause of action, which averments were wholly immaterial to an action to recover on the draft as an acceptance. In fact the complaint appears to contain the statement of the facts necessary to sustain two distinct causes of action, but we do not think that the failure to state them separately and by number, is a matter which can be taken advantage of on the trial; but if there can be any doubt as to which cause of action the plaintiff intends to rely upon, the-remedy is by a motion to make the complaint more definite and certain.

There remains to be considered the effect of a portion of the •statement in the answer of the defendants, which they set np as “a second answer, defense and counter-claim to said complaint,” which, not having been replied .to, it is claimed must be taken to be true. This answer is obnoxious to the same objection which the learned justice at the Circuit suggests as to the •complaint, viz., that the counter-claim alleged to be contained in it and the defense, are not separately stated, and moreover the form of the answer is such that the fact that it contained any allegations which were set up as a counter-claim was likely for this reason to be overlooked; still, we think that the remedy is, like a similar objection to the complaint, to be remedied by a special motion.

What is insisted on as a counter-claim consists in this : after the statement of the conditional agreement by which the defendants bound themselves td the plaintiff to pay Quick’s sight drafts, for the purchase price of cattle less $50 per car load, &c., of the allegations in substance, that on December 12, 1876, the plaintiffs notified the defendants that they had discounted a draft drawn by O.' Qui«k under the said arrangement, for $5,025, and that the same was accompanied by a bill of lading for two hundred and thirty-four hogs and sixty-seven sheep consigned to the defendants, and that the defendants, relying on the good faith of the plaintiff in seeing that the draft was drawn only for the actual cost price of said hogs and sheep less $50 per car load, and believing the same to have been so drawn, accepted and paid said draft, the •said hogs and sheep realizing only the sum of $4,644.65, “ by which the defendants were out the sum of $147.18.” The sum last named is evidently a misprint or a mistake, as appears by the following .■statement in said answer : “ That said defendants paid to the said plaintiff the sum of $5,249.47, being the proceeds of said cattle {and hogs) less the sum of $380.35 loss on the December shipment before mentioned.”

We do not think the said allegations which are claimed to set np a counter-claim, contain sufficient allegations for a cause of action. Conceding that in point of fact the said draft for $5,025 was <lrawn for the full cost price of the said shipment of December 12, 1876, there is no allegation that by reason of such fact the-defendants suffered any damage, nor elements stated from which damage may be inferred. To put the most liberal construction on the language of the defendant’s answer it amounts to an allegation,, that having paid the said draft for §5,025, believing it have been drawn in accordance with the agreement, they only realized upon a sale of the sheep and hogs against which it was drawn, the sum of $1,611.65. To say that the difference between these two sums-was the damage sustained fiy the plaintiff, in consequence of the plaintiff discounting the draft in question is clearly a non seqtoitivr. The result might have arisen from a deterioration in the price or value of the animals shipped, or from negligence of the defendants themselves. And there is no express averment, and it does not appeal how the plaintiff sustained any damage resulting from the fact that the plaintiff had discounted, and the defendant had paid a, draft drawn for the actual cost of the of the hogs and sheep without any deduction, of $50 from each car load thereof; and the pretended cause of action which the defendants set up in their answer appears to be a mere denunciation of the plaintiff for having permitted Quick to overdraw, without stating what particular sum was overdrawn, whether $1 or $1,000, or showing in what manner the defendants had or might have suffered damage thereby. For this reason, even if the defendants were not estopped by the acceptance and payment of the draft to make any such reclamation, we think the defendants were not, upon the pleadings, entitled to-recover of the plaintiff, the fum of $380.35 by way of offset to the plaintiff’s claim for the net proceeds of the cattle and hogs shipped on January 11, 1877, which is the result of the disposition of the case at the Circuit.

The findings of facts are wholly insufficient to authorize the judgment, and besides they are not separately stated and in detail, as required by the statute.

Judgment reversed and a new trial ordered, costs to abide the ■event.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.