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gence, it is proper to direct a non-suit. -
a railroad company with negligence in an
is usually for the jury, and only in excep-
justify a non-suit. -11.
sonal injury caused by negligence will
working for defendants, attempted to
7. Plaintiff's intestate was found on defend-
ant's track under a bridge in a dying con-
N, Y. C. & H. R. RR. Co., 53.
engineers to approach and pass all sta-
was excessive.-Albert v. Sweet et al., 96.
deeming a collision inevitable, jumped
injuries, there can be no recovery for
dealers.—Marks v. The L, I, RR. Co., 189.
speculate as to the uncertain profits of
20. Under all the circumstances of the case
Held, That it was a proper one to be sub-
of Salamanca, 401.
switches or patented contrivances shall
R. RR. Co., 415.
for an injury to a child non sui juris
Kunz v. The City of Troy, 425.
be attributed to the owner of a lumber
v. Boller et al., 219.
tributory negligence.-Shiner v. Russell
et al., 261.
for causing the death of a person by neg-
ant to look after a child is im material on
ming v. The Brooklyn City RR. Co., 506.
facilities for inspection of the work while
cise diligence and care in the management thereof, and are liable for a failure to do so.-Morris 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 y. 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 with 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 accounting 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,
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 compelled to repay such moneys so received.
-Id. 3. A person cannot maintain an action to
com pel 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 fixed 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
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
See CRIMINAL LAW, 12; FORGERY, 2; PRAC
TICE, 3, 19, 20, 26.
the official bond of said marshal executed
of the city.-Moog v. Keogh et al., 547.
authority a person so aggrieved has no
2-8, 11, 12; LIMITATION, 8; TAXES, 1, 2.
by consent of all parties.—Prior v. Prior
et al., 207.
portion of real property is a tenant in
Vail et al., 225.
1. Under the provisions of Chap. 790, Laws
of 1867, $$ 3 and 4, the occupant of land
cannot make a general assignment of the
creditors. -Nealis v. Adler et al., 19.
a copartnership upon service of the sum-
tingent liability arising from an indorse-
324, Laws of 1850, § 5, as amended by
1. The commission of an offense under
Chap. 183, Laws of 1885, is not proved by
ure of an article to take the place of but-
bility has not yet matured.-Id.
dence should be allowed in an action
are admissible in evidence.-Id.
to run against an action between copart-
is waived.-Biden et al. v. James, 141.
RATIONS, 4, 7, 10; EXECUTORS, 14 ; GUARD-
1. It is well settled, and the rule is dis-
tinctly declared by $ 1533, Code Civ. Pro.,
tion, but must be expressly created and raised by statute.—The Fire Dept. of N. Y. v. Braender, 163.
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.-ld. 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. Burrous 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.
PHYSICIANS. 1. A physician who has been called in con
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 col. lected. Held, That by accepting the assignment the time for the payment of the original debt was not extended.
Wheeler et al. v. Jones, 440.
sultation by the attending physician, and who has advised a prescription, is within the probibition of SS 831, 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.
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 baving 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 $ 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
PENAL CODE. See ABDUCTION, 1 ; BANKS, 5, 6.
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
at the trial is discretionary with the court, and its action in that regard is not reviewable where there has been no abuse
of discretion.-ld. 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
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
a 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.
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 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. Ý. 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., 531.