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gence, it is proper to direct a non-suit.-
Van Horne v. The B., H. T. & W. RR.
Co., 268.

15. What is not sufficient evidence to charge

a railroad company with negligence in an
action against it for causing the death of

an employee.-Id.
16. The question of contributory negligence

is usually for the jury, and only in excep-
tional cases can the court answer it.
Sherry v. The N. Y. C. & H. R. RR. Co.,
287.

7. Plaintiff's intestate was found on defend-

ant's track under a bridge in a dying con-
dition, and it appeared that he was suf-
fering from a shock which might have
occurred from a fall from the bridge, from
a car or from a blow. It did not appear
that he was seen at the bridge or upon it
or how he got to the place where he was.
Evidence was given to show that defend-
ant had not restored the highway so as to
make the bridge safe for the public.
Held, That as there was no evidence that
be was on the bridge or was seen going
in that direction the condition of the
bridge was unimportant.-Gardiner v.

N, Y. C. & H. R. RR. Co., 53.
8. Where the rules of a company require

engineers to approach and pass all sta-
tions with caution,

whether they are to
stop or not, Held, That the court could
not say as matter of law that a speed of
fifteen miles per hour for a freight train

was excessive.-Albert v. Sweet et al., 96.
9. The fact that plaintiff, an engineer,

deeming a collision inevitable, jumped
from his engine and was injured will not
prevent a recovery by him if otherwise
free from negligence, although had be
remained in his place he would not have

been hurt.-Id.
10. In an action for damages for personal

injuries, there can be no recovery for
profits which plaintiff would have made,
if uninjured, in his business as manufac-
turer of clothing upon contract with

dealers.-Marks v. The L. I. RR. Co., 189.
11. The jury should not be permitted to

speculate as to the uncertain profits of
commercial ventures in which plaintiff
if uninjured would have been engaged.

-Id.
12. In determining whether negligence may

17. The evidence in this case held not to

justify a non-suit.-Id.
18. When a verdict in an action for a per-

sonal injury caused by negligence will
not be set aside on the ground of exces-
sive damages.-Tisdale v. The D. & H. C.

Co., 308.
19. Plaintiff, fourteen years old, while

working for defendants, attempted to
clean her machine while in motion, when
her fingers were drawn between cogs
and crushed. Notices forbidding clean.
ing while the machines were in motion
were posted in the room. Held, That she
was guilty of contributory negligence
and could not recover.-Foy v. Buchanan

et al., 368.
20. Under all the circumstances of the case

Held, That it was a proper one to be sub-
mitted to the jury, and an order of non-
suit was error.-

Huggins v. The Village
of Salamanca, 401.
21. It cannot be left to the jury to say wbat

be attributed to the owner of a lumber
pile situated near the public street, in
leaving the lumber unfastened after the
pile had been once broken into, evidence
that it was the custom of the lumber
dealers in the city when a pile was once
broken into and is being used to leave it
unfastened is wholly inadmissible and
constitutes no justification or excuse.
So held, where a traveler upon the street
was injured by being struck with a piece
of lumber blown from the pile.- Wright

v. Boller et al., 219.
13. Facts tending to show absence of con-

tributory negligence.-Shiner v. Russell

et al., 261.
14. Where in an action to recover damages

for causing the death of a person by neg-
ligence it appears that no one saw the
occurrence, and it is not made apparent
by the evidence that the deceased was
himself free from contributory negli.

switches or patented contrivances shall
be used by a railroad company in order
to escape liability for injury to an em-
ployee caused by the negligence of a co-
employee.-Coppins v. The N. Y.C. & H.

R. RR. Co., 415.
22. It is not sufficient to defeat a recovery

for an injury to a child non sui juris
caused by negligence that the act of the
child was one which in an adult would be
deemed contributory negligence. There
must also be concurring negligence on
the part of its parents or guardians.-

Kunz v. The City of Troy, 425.
23. When negligence cannot be imputed to

the parent.-Id.
24. The inability of a parent to hire a serv-

ant to look after a child is im material on
the question of the parent's negligence if
the child itself is guilty of none.-Cum-

ming v. The Brooklyn City RR. Co., 506.
25. Where contractors stipulate to furnish

facilities for inspection of the work while
in progress and acquiesce in the use of
certain machinery for that purpose by
the other party, they are bound to exer-
for the city of N. Y. has no power under 8 7 of Chap. 484, Laws of 1862, to make an order permitting a person aggrieved by any official misconduct on the part of a marshal of the city of N. Y. to prosecute in his own name in the Supreme Court by consent of all parties.- Prior v. Prior

cise diligence and care in the management thereof, and are liable for a failure to do so.-Vorris v. Brown et al., 507.

See EVIDENCE, 16; JUDGMENT, 5; LIMITA

TION, 9; MASTER AND SERVANT; MUNICIPAL CORPORATIONS, 2, 4; RAILROADS, 1-4, 8-11, 20-22, 24.

NEGOTIABLE PAPER.

1. Where a promise is made to contribute a

certain sum toward paying off a church debt upon condition that the clergyman would secure the remainder by voluntary subscription, which was done, a note given for the purpose of paying such contribution is based upon a sufficient consideration.Roberts v. Cobb, 182.

2. One of the makers of a joint note paid the

amount thereof to a bank which had discounted it and took it up, and thereafter handed it back to the bank officer, saying that one of the other makers had joint funds to pay it witb and if he did so to credit the speaker with it. Thereafter plaintiff purchased the note from said bank. In an action to recover on the note, Held, That whether the note was paid and discharged by the payment made to the bank was a question for the jury, and that it was error to direct a verdict for plaintiff.-Mosher v. Bennett

et al., 248. 3. The fact that it was against the interest

of the holder of a note to make the indorsements upon it makes them prima facie evidence of payments.-In re ac

counting of Kellogg, 294. 4. Where a note given for money loaned is

at maturity surrendered by the payee to the maker upon his promise to give a new note in renewal, and the maker delivers to the payee an unsigned new note, the payee has a right of action at law upon the original loan and note given therefor. His right of action does not depend on the unsigned note; that creates no new liability. Reynale v. Harrison,

558. 5. The surrender of a note under such

circumstances is not a discharge of the liability, but it places the burden of proof upon the payee to show that the note was not paid when surrendered.

-Id. See BANKS, 1, 2; EVIDENCE, 32; GUARANTY;

MARRIED WOMEN; PARTNERSHIP, 9; PRACTICE, 6; SET OFF, 2; SURETYSHIP, 1.

N. Y. CITY. 1. The resolution of the common council,

passed December 31, 1869, increasing the salaries of police justices to $10,000 is invalid and unauthorized. Cox v. The

Mayor', &c., of N. Y., 59. 2. Where the salary at the increased rate was

paid to plaintiff for a portion of his term and received by him in good faith, more than six years before action for the bal. ance claimed for the remainder of the term, Held, That he should not be com. pelled to repay such moneys so received.

-Id. 3. A person cannot maintain an action to

compel the comptroller of the city of New York to convey to him certain land under water on the water front of said city upon a resolution passed by the commissioners of the sinking fund of said city under $$ 4 and 5, Chap. 9, Revised Ordinances of 1859 of the city of N. Y., in the following form: “Resolved, that the comptroller be and he is hereby authorized to cause a grant to be issued to A. for the land under water on the North river in front of the upland owned by him between 56th and 58th streets extending to the exterior line of the city, as now fised by law, and containing the usual covenants and conditions, at fifty dollars per foot, running measure." Such a resolution does not amount to a contract between A. and the city for the purchase and sale of said property, but leaves the issuing of the grant in the discretion of the comptroller.-Appleby v.

The Mayor, &c., of N, Y., 69. 4. The mayor, recorder and aldermen of the

city of N. Y. compose the board of supervisiors of the county.-In re petition of

the N. Y, Cable Co., 411. 5. Chapter 43, Laws of 1884, confers upon

the mayor of the city of N. Y. power to appoint excise commissioners in said city without confirmation by the board of aldermen.The People ex rel. Houghton

et al. v. Andrews et al., 431, 564. 6. The Board of Education of the city of N.

Y. has power to investigate charges of misconduct against teachers in the public schools and inflict punishment by a fine if such charges are discovered to be well founded, and such power is not exclusively vested in the school trustees.—The People ex rel. Hoffman v. The Board of

Education, 529. 7. A justice of the Court of Common Pleas

NEW TRIAL.

See CRIMINAL LAW, 12; FORGERY, 2; PRAC

TICE, 3, 19, 20, 26.

the official bond of said marshal executed
to the mayor, alderman and commonalty

of the city.-Moog v. Keogh et al., 547.
8. In the absence of some special statutory

authority a person so aggrieved has no
power to prosecute said bond in his own

name.-1a.
See ADVERSE POSSESSION, 1; ASSESSMENTS,

2-8, 11, 12; LIMITATION, 8; TAXES, 1, 2.

NUISANCE.

1. Under the provisions of Chap. 790, Laws

of 1867, $$ 3 and 4, the occupant of land
upon which there is a nuisance which be
fails to remove after notice from the
Board of Health of a village is to be
charged with the expense of abating
such nuisance and not the village.-
Prendergast v. The Village of Schaghti-

coke, 119.
2. The expenses with which, under Chap.

324, Laws of 1850, § 5, as amended by
Chap. 761, Laws of 1868, the village is
chargeable are expenses other than those
incurred by an abatement done pursuant
to Chap. 790, Laws of 1867, SS 3 and 4.
-Id.

OLEOMARGARINE.

1. The commission of an offense under

Chap. 183, Laws of 1885, is not proved by
showing the simple manufacture and
sale of the article ; but it must appear
that it was manufactured in imitation or
semblance of butter ; that by the use of
ingredients not necessary to the article
itself it was sought to accomplish such
imitation or resemblance. The People v.

Arensberg, 14.
2. So far as the act forbids the manufact-

ure of an article to take the place of but-
ter it is unconstitutional.-Id.

et al., 207.
2. A tenant by the curtesy in an undivided

portion of real property is a tenant in
common with the owners in fee of other
undivided portions thereof, and may
therefore maintain an action as sole
plaintiff to partition the same under SS
1532 and 1538, Code Civ. Pro.-Tilton v.

Vail et al., 225.
See EVIDENCE, 8; WILLS, 22.

PARTNERSHIP.
1. While one member of a copartnership

cannot make a general assignment of the
firm property for the benefit of creditors
with preferences in the absence of ex-
press or implied authority from the other,
he can sell or transfer partnership prop-
erty to satisfy or secure partnership
indebtedness without the knowledge of
his copartner, even though it may be in-
tended thereby to appropriate the prop-
erty of the firm to the payment of certain
demands to the exclusion of the other

creditors.- Nealis v. Adler et al., 19.
2. A judgment recovered by default against

a copartnership upon service of the sum-
inons upon one partner only is not ren-
dered fraudulent by reason of the fact
that the other partner was designedly
kept in ignorance of the service of said
summons, provided that the action was
brought upon a bona fide partnership

liability.-İd.
3. When a copartnership is insolvent a con-

tingent liability arising from an indorse-
ment of the promissory notes of the firm
is a sufficient consideration for the assign-
ment of the collectable accounts due the
firm to the indorser, although said lia-

bility has not yet matured.- İd.
4. Great latitude as to the reception of evi-

dence should be allowed in an action
brought by a receiver of the property of
a copartnership to set aside, as fraudu-
lent, certain judgments recovered against
the firm under suspicious circumstances,
and if the judgment creditors and one of
the copartners co-operated in procuring
the recovery of said judgments anything
said by either of them tending to explain
or characterize what they did, and any
conversations between the partners in
regard to the transactions culminating
in the judgments sought to be set aside,
are admissible in evidence.-Id.
5. The statute of limitations does not begin

to run against an action between copart-
ners for an accounting of the firm affairs
immediately upon the dissolution of the
copartnership unless the firm business is
entirely concluded at that time.-Gray
v. Greene, 86.

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tion, but must be expressly created and raised by statute.- The Fire Dept. of N. Y. v. Braender, 163.

PHYSICIANS.

6. Where the business of the partnership

requires for its completion continued transactions, and no default or misconduct can be alleged upon the part of either of the parties as a ground of action, there the law will permit a reasonable time to be taken for the completion of the partnership affairs before a right of action for an accounting will accrue and

the statute begin to run.-Id. 7. One member of a firm may sell all the

firm property and apply the avails pro rata on the debts of the firm.-Chadwick

v. Burrows et al., 255. 8. An assignment of firm property which

provides for payment of the individual debts of members of the firm is void in toto; and the court will not separate provisions which might be valid standing alone and uphold them. In such an instrument the vice condemns every part —The Natl. Bk. of Granville v. Cohn

et al , 437. 9. The complaint, after alleging that plain

tiffs were copartners in business, alleged the making of the note in suit to them by defendant, and that they were the lawful owners and holders thereof and that it was due and unpaid The answer denied the copartnership and set up the statute of limitations. It appeared upon the trial that one of the plaintiffs was not and never had been a copartner of the others, and thereupon the court directed a verdict for defendant. Held,

Error.Roberts et al. v. Graves, 549. See ASSIGNMENT FOR CREDITORS, 6-8, 10, 11 ;

Costs, 2; DECEDENTS ESTATE, 3; EviDENCE, 5; HUSBAND AND WIFE. 1; LEASE, 6,7; MASTER AND SERVANT, 12.

1. A physician who has been called in con

sultation by the attending physician, and who has advised a prescription, is within the prohibition of SS 834, 836.-In re will

of Dennin, 172. 2. Said sections apply to testamentary

cases.-ld. 3. Said sections are not confined to infor

mation of a confidential nature, but include all information obtained by a physician while attending a patient necessary

to enable him to prescribe.--Id. See EVIDENCE, 20, 34.

PAYMENT.

1. Defendant being indebted to plaintiffs

for goods sold, assigned to them as col. lateral security certain accounts not then due nor due at the time this action was commenced. Nothing was said in the assignment as to extending the time of payment of the original debt; plaintiffs only agreeing to apply the accounts assigned to the indebtedness as the same were collected. Held, That by accepting the assignment the time for the payment of the original debt was not extended.

Wheeler et al. v. Jones, 440.
See AGENCY, 1 ; MORTGAGE, 3, 7, 8.

PLEADING, 1. A demurrer to a complaint upon the

ground that there is a defect of parties defendant on account of the non-joinder as defendants of certain specified persons will be overruled unless all of such specified persons should have been joined as defendants. Such a demurrer cannot be sustained in part and overruled in part.

Anderton v. Wolf et al., 11. 2. In order to sustain a demurrer for a de

fect of parties, it must appear that the party demurring has an interest in having the omitted parties joined, or that he is

prejudiced by the non-joinder.-Id. 3. A demurrer alleging that causes of action have been improperly united “because the causes of action set forth, except one, do not severally affect the demurring defendant; because it appears upon the face of the complaint that said causes of action do not belong to any one of the subdivisions of S 484, Code Civ. Pro., but belong to different subdivisions thereof; because causes of action upon claims pot arising out of the same transaction or transactions connected with the same subject of action are included in the complaint; and because legal and equitable actions not referring to the same persons or subject matter are united in said complaint,” does not comply with the provisions of the Code Civ. Pro. requiring the particular defect relied upon to be specifically pointed out upon a demurrer for improper joinder of causes

of action.-Id. 4. When during the trial of an action plain

tiff is allowed to amend his complaint, and an amended complaint is duly served and answered, and the judgment rendered upon such trial is subsequently re versed upon appeal, and a new trial or at the trial is discretionary with the court, and its action in that regard is not reviewable where there has been no abuse

PENAL CODE. See ABDUCTION, 1 ; BANKS, 5, 6.

PENALTIES.

1. A penalty cannot be raised by implica

dered, the order granting sucb new trial does not obliterate the amendment made during the course of the first, and the second trial will proceed upon the amend

ed pleadings.- Price v. Brown et al., 43. 5. It is not error for the court to refuse at

the trial to allow such an amendment to the complaint as would in effect substitute one cause of action for another.

The Buff. & G. I. Ferry Co. v. Allen, 63. 6. Allowance of amendment of pleadings

13. In such an action an allegation of a

subsequent assertion of title by the wife, and of the insolvency of the husband and the fraudulent purpose of the transfer, may be properly alleged as bearing on the question of costs, if for no other purpose.

-Id. 14. Where the complaint states the facts and an

of discretion.-Id. 7. The particular phraseology or form of

the prayer for relief contained in a complaint is not of much importance in determining what relief shall be awarded to plaintiff when an answer has been interposed, for in such a case plaintiff may be permitted to take any judgment consistent with the case made by the complaint and embraced within the issue, but when the action is based upon allegations of fraud which fail to be established upon the trial it cannot be turned into an action on contract and relief afforded plaintiff which is appropriate in the latter form of action only.-James v. Couing et

al., 97. 8. Where there has not been a great lack of

promptness the court will permit a supplemental answer to be served though it set up a hard and inequitable

defence.--Dusty v. Lansing, 140. 9. And where defendant had a good defense

and less than three months had elapsed since the defense became available, she was permitted to interpose it on payment of the costs of the motion here and be

low.-Id. 10. Where the complaint clearly alleges an

official and not an individual liability the omission of the word "as" between defendant's name and his official title is

not fatal.- Watrous v. Shear, 164. 11. A complaint will not be deemed multi

farious, and matter irrelevant, although it embraces facts collateral to the apparent cause for relief, unless foreign to the cause of action.-Evans v. Burton et al.,

227. 12. In an action to have a deed from a hus

band through a third party to his wife declared a mortgage to secure a debt to her, and praying that the wife account for rents and profits and plaintiff be permitted to redeem, an allegation of an intent to hinder and delay and defraud creditors is subservient to and consistent with the alleged purpose of the instrument as between the parties.-Id.

answer has been interposed plaintiff may take any judgment consistent with the case made by the complaint and embraced within the issue; he cannot be turned out of court because he has prayed for too much or too little, or for wrong relief.— Muldouney v. The Morris

& E. RR. CO., 257. 15. Certain allegations in a complaint in

Justice's court held sufficient to show that an overpayment by mutual mistake was intended to be alleged, and that certain evidence sustained that allegation.

-The First Presb. Soc. V. Ayer, 402. 16 An amendment which changes an ac

tion against executors as such to an action against them individually, made after trial, cannot be sustained.–Van Cott v.

Prentice et al., 423. 17. The complaint alleged that plaintiff, in

an action in California, had been appointed receiver of the property of the firm of E. B. & Co.; that among such property was 273 shares of defendant's stock; that said firm had assigned said stock to plaintiff and had given him a power of attorney authorizing him to cause its transfer upon books of defendant to him as receiver; that defendant had refused to make such transfer, and demanded judgment that defendant should be directed to transfer said stock. The answer alleged, for a first defense, that defendant was incorporated in 1882 as a manufacturing corporation under the N. Y. general law for the purpose of operating the J. B. Pace factory, which had been purchased by E. B. & Co. and conveyed by them to defendant; that the N. Y. stockholders took their stock upon an agreement with said firm that the latter would take a majority of the stock and control and manage the company, giving it the benefit of their experience and facilities; that the interference of a California receiver as a stockholder of record of a majority of the stock, and so electing trustees and officers, would be an interference with and inconvenience to N. Y. citizens, the company, and its N. Y. stockholders, by a foreign receiver, not permissible in a court of equity in this State, especially as there was no finding in the California action that anybody other than E. B. & Co. had any interest in said 273 shares. Held, That the said portions of the answer should be stricken out as irrelevant. -Weller v. The J. B. Pace Tobacco Co.,

even

531.

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