« ForrigeFortsett »
See AGENCY, 2; ASSESSMENTS, 12; ASSIGN
MENT, 1; ASSIGNMENT FOR CREDITORS, 10; CONTRACT, 10; CONVERSION, 2; DRAINAGE, 1, 4; EXECUTORS, 37; PARTIES; SCHOOLS, 1.
1. A false statement made by a policeman
that one of his associates on the police force was guilty of a gross immoral act is sufficient to warrant his dismissal from the police force by the police commissioners under the rule authorizing dismissal for "conduct injurious to the public peace and welfare” and as '‘unbecoming a police officer.”—The People ex rel. Anderson v. Police Comrs., 94.
4. After the trial judge has passed upon the
findings proposed by both parties upon a trial at Special Term and has directed an engrossed copy of the findings as settled to be prepared for filing, it is too late to propose new findings at the time said engrossed copy is submitted to the judge for his signature.-James v. Cowing et
al., 97. 5. A stipulation that a general exception to
a charge should give defendant the benefit of a particular exception is unavail.
able.-The People v. Buddensieck, 125. 6. In an action on a promissory note the
answer denied none of the allegations of the complaint but set up affirmatively that defendant was an accommodation endorser; that the note was in fact paid out of moneys in the holder's hands applicable thereto, and, on information, that plaintiffs were not the lawful own.
Held, That defendant held the af. firmative and had the right to open and
2. Policemen are at all times subject to the
rules of the police department, and the police commissioner has the right to remove members of the police force for improper conduct when not in uniform and on actual duty.-The People ex rel. Hayes v. Carroll, 409.
1. The Board of Supervisors have a right to
adopt the “Livingston County Act," and such right was not taken away by Chap. 28, Laws of 1882.—The People ex rel. Supts. of Poor v. Supr’s St. Lawrence Co., 176.
PRACTICE. 1. Where a defendant positively denied
close.-Conselyea et al. v. Swift, 185. 7. After a failure to agree in a civil case the
court sent the jury back with the instruction that “no juror ought to remain entirely firm in his conviction one way or the other until he has made up bis mind beyond all question that he is necessarily right and the others necessarily wrong. Held, Error.-Cranston v. The N. Y. C. & H. R. RR. Co., 194.
speaking certain words imputed to him by plaintiff, defendant's testimony detailing the conversations and interviews and giving his version thereof positively, and as positively denying the making of the promise testified to by plaintiff's witnesses, Held, Error to charge the jury that plaintiff's affirmative evidence is entitled to greater weight than defendant's negative testimony on the ground that plaintiffs, if their evidence is untrue, are guilty of perjury, whereas if defendant's testimony is untrue, it could only be said of him that he had forgotten. Such charge may have prejudiced defendant before
the jury.-Cridler et al. v. Colgrove, 31. 2 Where the evidence has been submitted
to the jury under proper instructions the verdict will be regarded as conclusive so far as there is any evidence upon which it can be based — Paige v. Waring et al.,
36. 3. The Special Term has jurisdiction to va.
cate an order made at Circuit denying a motion for a new trial, when such order was made through the inadvertence and mistake of the trial judge. - The First Nat. Bank v. Clark, 95.
8. When the evidence presents a question
of fact to be determined upon the merits, it is error for a justice to refuse to consider the facts and dispose of the case as a question of law by nonsuiting plaintiff.
-Costen v. Decker, 231. 9. Where an important proposition is er
roneously stated to the jury, such error is not cured by the fact that the rule is correctly stated in other parts of the charge, unless the erroneous proposition is distinctly withdrawn.-The People v. Dimick, 236. 10. When a paper as a whole is not compe
tent evidence, though some parts of it are competent, and may have a tendency to arouse the prejudices of the jury, although the court qualifies the purpose for which it is received in evidence, it cannot be deemed harmless, and its ad
mission is error.-Id. 11. The admission of evidence of facts
which do not tend to prove or disprove the issue joined is sufficient to reverse the judgment, unless it appears that it did not prejudice the case before the jury,
Benedict v. Penfield, 247. 12. An application for adjournment on ac
count of the absence of witnesses is addressed to the discretion of the court. expressed by the trial judge on an assertion by one of the parties, but founded on no evidence which can work prejudice to defendant, even if technically erroneous, is no ground for a new trial.- The People
Where the witness is a foreign one and the facts proposed to be shown by him can be established by other witnesses, or where he is wanted simply as an expert, a refusal of the application is not an abuse of such discretion.-Ten Broeck v. The Travelers' Ins. Co., 250.
13. It is the duty of the court to dismiss the
complaint when if the jury should find a verdict in favor of plaintiff it would be justified in setting aside such verdict as clearly against the weight of evidence.Cutter v.
Morris, 260. 14. Whether counsel should read from the
answer, in the course of his final address to the jury, is a matter within the discretion of the judge-a discretion with which the appellate court should not interfere unless it appears that defendant was prejudiced.—Tisdale v. The D. & H.
C. Co., 308. 15. It is a well settled rule that error will
not be presumed; but, to be available to the party urging it, it must be made affirmatively to appear that it was, or may have been, harmful to him.-Id.
16. If any of the grounds urged for a non
suit are right the nonsuit will not be set aside, although it was put on another ground.-Dalrymple v. The City of
Oswego, 332. 17. The decision of Special Term based up
on conflicting affidavits on motion open a default is conclusive.-Keeler v.
Dennis, 406. 18. An order made at Circuit refusing
plaintiff's application to postpone the trial does not stand in the way of a motion to open a default taken subsequently
at the same Circuit.- Id. 19. Where the evidence in an action is such
as to permit the trial judge to fairly conclude that a fact necessary to support the verdict is not satisfactorily proved and that injustice may have been done by the verdict upon the evidence it is not an abuse of discretion for such judge to grant a new trial.--Fincke et al. v. The
City of Buffalo, 445. 20. An abstract opinion “out of the case
v. Johnson, 491. 21. When defendant moves at the conclu.
sion of plaintiff's evidence for a dismissal of the complaint, and plaintiff fails to ask to go to the jury upon any question of fact, the effect is to submit such questions to the court upon the evidence, and
it is too late, upon an appeal from the judgment dismissing the complaint, to urge that certain questions of fact should have been submitted to the jury.- Dodge
v. Havemeyer, 517. 22. Where requests for findings of fact were
presented by defendant to a referee in time but through inadvertence he made and signed his report without passing upon them and afterward noted his disposition of the questions, and this with defendant's exceptions were included in the case, Held, that the rulings and exceptions were properly before the court.
-Friedman v. Bierman et al., 526. 23. Plaintiff recovered judgment upon fore
closure of a mortgage for an erroneously large amount, and. upon appeal, was compelled to consent to a reduction of the same. A reference was ordered to determine the amount to be restored by plaintiff. During the pendency of said reference it was discovered that a certain affidavit in the action had been removed from the files of the court, and upon the ground that plaintiffs attorney was responsible for such removal an order was made staying proceedings upon the reference until said affidavit should be restored. Held, Error. That the proper practice if the affidavit was important as evidence before the referee would be to require its production by means of a subpoena duces tecum, and upon a failure to produce further proceedings to compel its production could then be
taken.-Wood v. Kroll et al., 550. 24 The court is not required to dismiss a
complaint on the counsel's opening on the ground that it fails to state a particular cause of action; it is only when it fails to state any cause of action, and the motion is made on that ground, that the motion must be granted.—Coyle v. Nies, 556. 25. When such objection is not made on
the trial, and no objection to the sufficiency or reception of the evidence is made, necessarily involving the consideration of the character of the complaint, or of the cause of action alleged by it, such objection is treated as waived, and the complaint will be deemed amended to conform to the facts proven, if neces
sary to support the verdict.-Id. 26. When an order of Special Term deny
ing plaintiff's motion for new trial on the ground of surprise will not be disturbed.
-Hurlbert v. Parker el al., 574. As to practice on appeal, see APPEAL, 2, 4,
7-10, 12, 14-16. As to practice in criminal cases, see ABDUC
TION; ARSON; BURGLARY; CRIMINAL LAW, 4-6, 9, 10, 13; EVIDENCE, 6, 7, 15, 29, 30;
Plaintiff saw the offer and gave informa-
FORGERY, 2; INDICTMENT, 3-5; JURORS;
LARCENY, 3; MURDER, 2.
see those titles; as ARREST, 1, 5; CONTRACT,
CONTEMPT ; COSTS; DAMAGES; DEPOSI-
PRINCIPAL AND AGENT.
PRINCIPAL AND SURETY.
See WILLS, 12, 19-21.
and personal property, he to pay certain of
information that would lead to the re-
cars in defendant's employ, caught his foot
RR. Co., 5.
locality, was driving from the west a
C. & H, R. RR. Co., 114.
only to furnish its employees with proper
5. The expense of the railroad commission,
which is to be assessed upon the railroads
ment of its business in its own way and may determine in its own discretion to what extent and in what manner it is required to subserve the convenience of
the public.-Id. 14. The rights of a company formed under
the Rapid Transit Act are not abrogated by Chap. 252, Laws of 1884.-In re peti
tion of the N. Y. Cable Co., 411. 15. A substantial compliance with the ma
terial requirements of the Rapid Transit Act is a condition precedent to a valid in
corporation under it.-Id. 16. A provision in the articles prepared by
the commissioners that in case any of the portions of road are not completed within the time provided the rights and franchises as to the portion not completed shall be forfeited to the supervi. sors is a material departure from the
requirements of the act.-Id. 17. In this case held that the articles did
not sufficiently provide for the plan of construction and enabled petitioner to exercise powers not intended by the act.
-Id. 18. A receiver of a railroad cannot use the
earnings to pay claims for permanent improvements to property owned by the company in preference to the claims of lienors by judgment or mortgage. Such use would be a diversion of the funds which a court of equity could not sanction.-In re Powers v. Jourdan, 446.
19. Where a power is conferred upon a
corporation duly formed it will not be defeated simply because the corporation has done or omitted some act which may be a cause of forfeiture of its rights and franchises, for it rests with the State to determine whether such forfeiture shall be enforced.-In re petition of the N. Y.
Cable Co., 466. 20. It appeared that defendant's train the claim still remaining unpaid when it appears that plaintiff signed such receipt under a misapprehension which was known to defendant.-Hamlin v. Wheelock, 285.
of the comptroller and State assessors is quasi judicial and can be reviewed on
certiorari.-Id. 7. And where the apportionment had been
concluded and part of the assessment had been paid in, relief will be granted a road assessed upon an improper basis, it appearing that the roads which had already paid and which were interested to retain the basis adopted had notice of this proceeding and were heard in this court.
Id. 8. Plaintiff's intestate was killed, as alleged,
by a train of defendant which was running within the city limits at a speed of from ten to twenty miles an hour. Defendant asked the court to charge that if the jury found the whistle was blown and the bell rung defendant's duty was dis. charged. This was refused. Held, No error.–Phillips v. The T. & B. RR. Co.,
216. 9. The court then said that the law required
so much to be done at least, and that in addition to it defendant was bound to take such other precautions as a jury upon examining the case might conclude were proper to be observed. Held, No
error.-Id. 10. It is the duty of a railroad company not
only to provide proper rules for the management of its trains, but to take every reasonable precaution to bring such rules and orders to the knowledge of all employees to be affected thereby. In giving such orders the superintendent is to be regarded as occupying the place of the
corporation.-Shiner v. Russell et al., 261. 11. If orders are so blind that it requires an
expert to tell their meaning, it is no defense to show how an employee ought to
have understood them at the time.-Id. 12. A railroad company is under no obliga
tion to provide warehouses or depots, and they cannot be compelled to do so by mandamus.— The People v. N. Y., L. E. &
W. RR. Co., 399. 13. The proceedings and determinations of
the board of railroad commissioners amount to nothing more than an inquest for information, and a railroad company, disregarding the judgment of the commissioners, may continue the manage
stopped at a street crossing so as to obstruct the crossing on both sides ; that as plaintiff attempted to cross behind it she was struck by the engine of another train which approached without warning. There was a city, ordinance directing trains to stop at the further crossing so as not to interfere with travel on cross streets. Held, Sufficient to warrant the submission of the question of defendant's negligence.-Cumming v. The Brooklyn
City RR. Co., 506. 21. A railroad need only use ordinary care
to prevent injury to people on the street; but if in running its train it omits precautions which in the use of ordinary care it should have adopted to prevent an accident it is liable.- İd.
See EVIDENCE, 35.
22. The court charged that it was for the
jury to determine to what extent the alley in question was used, and if they found it was used by the public constantly and notoriously previous to the accident defendant was bound to give some proper warning in approaching it, and it was for the jury to determine whether such warning was given. Held, No error.—Byrne v. The N. Y, C. & H.
R. RR. Co., 515. 23. Where the property, etc., of a railroad
was sold under a judgment of foreclosure to an individual, prior to the construction of its road, etc., and prior to the passage of the general act of 1879, Chap. 350, Held, That as the foreclosure and sale worked a forfeiture of the company's right to construct the road and transferred it to the purchaser, its corporate power in that respect had terminated, and that defendant was not liable upon his subscription to the stock of the company. -The
Sodus Bay & C. RR. Co. v. Lapham, 562. 24. A railroad train while passing over a
highway crossing caught up and carried along for a long distance a large heavy *plank forming the crossing for teams, and then dropped it between two rails, forming such an angle as to hold it firmly. The train following struck this plank, was derailed, and plaintiff's intestate, a fireman thereon, was killed. A short time before the accident the plank was spiked down, and was about 1/2 inches below the top of the rails. There was a weather crack in the end extending into the plank a few feet. The supposition is that some rod, hook or chain attached to the train had fallen, and dragging along had caught in said crack and wrenched the plank from the ties, etc. There was no evidence that anything belonging to the train was negligently constructed, or had been out of order for any length of time. Held, That as the circumstances of the accident were peculiar and exceptional, and could not be reasonably expected, foreseen or anticipated. negligence could not be imputed to defendant, and a non-suit was properly granted Casey v. The N. Y. C. & H. R. RR. Co.,
568. See ASSESSMENTS, 1; CORPORATIONS, 9; EM
INENT DOMAIN, 3-6; MORTGAGE, 17; NEGLIGENCE, 1, 2, 7-9, 14-18, 21; TRUSTEES, 1.
RECEIVER. 1. The receiver of rents and profits ap
pointed in a foreclosure action has no power to lessen the funds to which plaintiff has a right to resort. While the court may give such directions as are necessary to preserve the property, yet where the repairs have been made the question of reimbursement of the contractor rests in the discretion of the court, and its determination is not appealable.- Wyckoff v. Sco
field et al., 172. 2. Section 473 of the Consolidation Act does
not cast upon the receiver the duty of protecting a wall of the mortgaged premises against the effect of an excavation
on adjoining property.-Id. 3. An interlocutory judgment was entered,
declaring that plaintiff is equitably entitled to an interest in certain premises, the legal title to which defendant wrongfully acquired in her sole name, and decreeing an account to be taken of all the moneys contributed by each of the parties to the payment of the purchase price, and that the interest of each be adjudged in proportion to the amount so contributed. Defendant being insolvent and the premises being incumbered, Held, a proper case for the appointment of a receiver to collect the rents of that portion of the premises which had been leased. —
Roche v. Roche, 193. 4. In an action brought to declare void a
lease of certain real property one M., upon his agreement to charge no fees for his services, was appointed receiver to collect the rents of said property pending the action and pay them over to the successful party. The action resulted in the dismissal of the complaint, and after the determination thereof defendant moved that the receiver be ordered to pay over to her the sum of $49 rents collected by him and which he refused to pay over. The possession of this sum was not denied by the receiver, but in opposition to the application he relied upon an ex parte order made in an action between the same parties in another district, in which the summons had been issued but not served, directing M. to desist and refrain from paying over said $49 to defendant. Held, That M. should be ordered to pay over said sum to defendant and was not entitled to a stay pending an appeal from an order to that effect.- Hayes v. Rabold, 441.
1. A receipt reciting the full payment of a
claim is open to explanation and is no defense to an action to recover part of