This action was brought to recover damages for the alleged negligent killing of B., plaintiff's intestate. It appeared that B. was killed by a locomotive of defendant at the railroad crossing of Fifth street in the village of Little Falls, between two and three o'clock of October 4, 1883. Defendant's six tracks cross the street upon a curve, but nearly at right angles. It afforded protection by neither flagman nor gate, and upon the occasion in question its train came from the west upon the crossing, out of time, at a speed of thirty miles an hour, sounding neither bell nor whistle, and, so far as appeared, without other warning of its approach. Between Fifth street and the west the view was obstructed by a ledge of rocks separating two of the tracks from the others, and the fences of a cattle yard extending to the west line of the street. On this occasion there were box cars of defendant upon

a side track just west of the crossing, which cut off the view until the wayfarer had reached the main track. The curve at the crossing | was of such a radius that when on the tracks a person could, according to position, see an approaching train at a distance of from 580 to 645 feet, but the track over which it moved could under the most favorable circumstances be identified at but 400 to 440 feet. There was much wind at the time of the accident, and south of the tracks and in the immediate vicinity were mills and factories whose machinery created considerable noise. B. came along Fifth street to the crossing, passed over two tracks and through the intervening space by the box cars to the most northerly of the four tracks, and passing on had reached the most southerly one when she was struck and killed. and killed. A motion was made for a nonsuit, which was granted, the court saying she had no right to go upon the last track with the train in full view coming toward her, and when she did it she did it either from a thought that she could get over in safety before the train struck her, and made a miscalculation, and if she did, that is negligence.

George F. Crumby, for applt.
C. D. Prescott, for respt.

Held, Error; that the case should have been submitted to the jury. 80 N. Y., 218; 34 id., 622; 104 id., 419.

In determining whether in a given case the conduct of a person was consistent with reasonable and ordinary care all the circum

stances surrounding the transaction are to be examined. Usually the question is for the jury and only in exceptional cases can the court answer it. The court may dispose of a case, and it is its duty to do so when there are no facts in dispute or any weighing of testimony necessary.

Judgment of General Term, affirming judgment dismissing complaint, reversed, and new trial granted.

Opinion by Danforth, J. All concur, except Earl, J., taking no part.

RECEIVERS. COSTS. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Aubin G. Locke, admr., applt., v. James W. Covert, recr., respt. The People v. The John D. Locke Co., Limited.

Decided Dec., 1886.

Pending an action against a corporation for loans made to it a receiver was appointed who answered and defended. Plaintiff recovered, the books in the receiver's hands establishing the claim. Held, That the costs were incurred for the benefit of the fund in the receiver's hands and should be paid therefrom, and that the receiver should be directed to pay them.

Appeal from order of Special Term, denying motion to direct the receiver to pay to plaintiff the costs awarded by the judgment recovered against such receiver.

Plaintiff brought action against The John D. Locke Co. to recover certain loans made to it by plaintiff's intestate. Pending such action a judgment was rendered in an action by creditors dissolving

the corporation and appointing Covert receiver, who served an answer in plaintiff's action, denying the material allegations and defended the action. On the trial plaintiff's causes were proved by entries in the corporation books produced by the receiver in obedience to a subpoena duces tecum. Judgment was entered in favor of plaintiff with $670.61 costs.

Subsequently plaintiff moved for an order directing the receiver to pay the costs included in the judgment on affidavit showing the above facts and also that the receiver had $10,000 on deposit, and that all claims having a preference had been paid. The motion was denied. Roger Foster, for applt.

Porter & Kilvert, for respt. Held, Error. The receiver is the custodian of a fund subject to the direction of the court to pay it out to parties establishing claims thereupon. The costs of the action were incurred for the benefit of the fund. It is therefore equitable that the expenses of the effort should be borne by the fund in whose behalf they were incurred.

In the language of Justice Woodruff, this is not giving a preference to a debt as such; it is requiring the fund to pay an expense incurred for its own benefit.

The case of Shields v. Sullivan, 3 Dem., 296, is in point, and to the same effect. It follows that the motion to require the receiver to pay the costs should have been granted. Order reversed, with $10 costs and disbursements.

Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur.

CONTRACT. BIDS.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

The People ex rel. Patrick J. Carlin, applt., v. The Board of Supervisors of Kings Co., respt.

Decided Dec., 1886.

Where an advertisement for bids reserves the right to reject any and all bids, one who makes a bid thereunder cannot complain of the exercise of the right to reject which he so concedes.

Where a contract is required to be let to the lowest bidder and but one bid is made, there is no lowest bidder, and a manda

mus will not be granted to compel the letting of the contract to the one making such bid.

Appeal from order denying motion for a peremptory mandamus. The board of supervisors of Kings Co. advertised, under Chap. 230, Laws of 1884, for proposals for the construction of certain buildings and improvements at the county farm, and reserved the right to reject any and all bids. Relator and others submitted proposals for separate portions of the work, and a portion was awarded to relator; but a number of his bids were rejected, and the board re-advertised for proposals for those portions of the work.

Relator thereupon procured an order to show cause why a peremptory writ of mandamus should not issue against the board requiring it to consider said bids and to award relator the contract. The board made return, showing that relator's bids were the only ones made for the portions of the work to which they related, and

that they were rejected because there had not been proper competition. Relator's motion was denied and he appeals, claiming that the board had no power under the statute to annex to the advertisement a condition of reserving a right to reject any bid, but having once advertised for proposals were bound to award the contract to the lowest responsible bidder.

Wm. N. Dykman, for applt. John B. Meyenborg, for respt. Held, That whether respondent had that power or not, the fact is that it did it, and relator having Imade his bids under such advertisement he cannot complain that it exercised the right he so conceded. It was the plain condition of his bid that the board might reject it, and having given his assent to such rejection he cannot challenge its power lenge its power to exercise the right.

The plain object of the statute was to prevent the supervisors from arbitrarily awarding a contract to any one except the lowest responsible bidder. There is no restriction as to the form or the number of times of advertising, but the statute contemplated that there should be competition and that the contract should, in the end, be awarded to the lowest bidder. If respondents had the power only to make one advertisement and were bound to award a contract if there was only one bid, the county might be subjected to the most glaring fraud. By using the terms the "lowest bidder," the intent of the statute that there should be competition is manifest.

Vol. 25-No. 13.

Plaintiff

the foreclosure sale. claimed title to the property under the following facts: That in February, 1884, it succeeded, through mesne conveyances, to the title of Margaret L. Maxwell in and to the real estate, with the driying power and manufacturing apparatus situated thereon and used therewith, began its use in manufacturing in April of that year, continued such use, adding to the machinery and apparatus, until Dec. 30, 1884, when it executed to S. Blaisdell & Co. a chattel mortgage of all the machinery, gearing, shafting, etc., contained in or connected with the mills, the description of which mortgaged property included that here in controversy. This mortgage was given to secure the payment of certain promissory notes bearing even date there with, made by plaintiff. This mortgage was not foreclosed, nor did the mortgagees take possession of the mortgaged property under it; but in Jan., 1886, they assigned the mortgage to one Warner, who subsequently assigned to plaintiff all his "right, title and interest in and to all shafting, pulleys, hangers, steam and water pipes and fixtures, and all fixtures or personal property occupied by said The Phoenix Mills, said title and interest growing out of a certain chattel mortgage made by said Phoenix Mills to S. Blaisdell, Jr., & Co." On the trial plaintiff claimed to make title under the mortgage made by itself to Blaisdell & Co., and, as above stated, assigned to itself; and the case

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was sent to the jury under an instruction recognizing the claim.

Stover & Nisbet, for applt.
Maxwell Brothers, for respt.

Held, That plaintiff did not get any title to the property mortgaged by it under the assignment or transfer made to itself by the mortgagees of their right, title and interest therein under the mortgage.

On the trial the president of plaintiff's corporation was permitted, against objection and exception, to testify that it was not his intention, in putting the machinery, etc., in the mills, to make it an annexation to the freehold.

Held, That this was error. In general, the intent with which an act is done is to be determined by the jury from the facts and circumstances surrounding the particular case, and the witness should not be allowed to testify to his secret, uncommunicated intention. An exception exists when the legality or illegality of the act is made to depend upon the specified intent with which it was done, as in the case of conveyances declared by statute to be void when made with fraudulent intent; so in case of usury declared illegal by law.

Evidence to the effect that certain machinery, etc., could be removed from the mill without injury to the real estate, and that plaintiff was the owner of the property at the time it was demanded, was received.

Held, Erroneous; those being facts for the jury to determine on consideration of the case upon the proof submitted.