right to go on and recover upon which he had received, and the betheir counterclaim in this action. The order of the court below was improvident and ought not to have been made. lief formed therefrom. By the form of verification in use under the Old Code the pleading did not disclose whether the denials in the answer were made upon knowledge or upon information and belief. This was deemed unsatisfactory, and the Code of Civil Procedure provided for a distinct disclosure upon the face of the pleading of the character of the denial. Sec. 526 introduces what is substantially the old chancery verification. The exception in the verification is no longer matter stated upon information and belief, but matter stated to be alleged on information Denial of allegations in the complaint may be and belief. Of course that permits made upon information and belief. Appeal from order striking out part of answer as irrelevant and redundant. a party to allege in that manner. This is not confined to affirmative allegations. Sec. 524 refers to denials as well as allegations. It is therein This is an action for slander. The provided that unless the allegations uttering of the slanderous words or denials in a verified pleading are defendant denies, of his own knowl-"therein stated to be made upon. edge. But certain other the information and belief of the aver ments of the complaint he denied party, they must be regarded for upon information and belief. These all purposes, including a criminal were stricken out on motion as irre- prosecution, as having been made levant. upon the knowledge of the person verifying the pleading." B. T. Kissam, for applt. When, therefore, a person has no positive knowledge, but has information sufficient to form a belief, he is not only permitted but bound, at his peril, to deny upon information and belief. Order reversed. On appeal Held, That this was erroneous. The form of the denial was proper. If the defendant had no personal knowledge upon the subject, he could not unqualifiedly deny. If he had knowledge or in- Opinion by Barrett, J.; Davis P. formation sufficient to form a belief, J. and Ingalls, J., concurring. he could not deny such knowledge or information. Clearly it was his duty to deny upon the information BANKS. LIEN ON DEPOSITS. Emma L. Falkland, adm'rx, applt., v. The St. Nicholas National Bank of New York, respt. Decided June 11, 1880. Ruger Bros. became indebted, on a discounted note, to defendant in $2,000, and, at the maturity of the note, defendant charged the account of plaintiff's intestate with the amount of such note. The evidence showed that Ruger Bros. had the account opened in the name of plaintiff's intestate, in order that the any money deposited thereon, which was almost wholly for freight collected for other people, might not be exposed to seizure. Banks have a lien upon the money deposited by their customers for the payment of indebtedness which may be owing from the latter. A bank may charge the account of a customer with the amount of a note due from the customer and held by the bank, and thus set off, pro tanto, the claim due from the bank to the depositor or customer. The relation between the bank and the depositor is that of debtor and creditor. A banker's lien upon all securities deposited with him by a customer is not affected by any latent equities which may exist between that customer and third parties, of which the banker had no notice. Appeal from judgment recovered on trial before the court. Action to recover a balance of $2,000 deposited by plaintiff's intestate with defendant. The money was deposited by the intestate individually, not as agent or trustee. The court below held that the bank properly charged the account of the intestate with the $2,000 note, and gave judgment for the difference to plaintiff. C. C. Higgins, for applt. Geo. W. Parsons, for respt. Held, That the money deposited was a debt due Ruger Bros., for they were the parties in the transaction who were beneficially interested, and had the right, through the intervention of the intestate, to require payment of money to them. & F., Appeal Cases, 787; Misa v. Currie, Law Rep., 1 Appeal Cases, 554. And the equities of other parties could not be regarded, inasmuch Plaintiff's intestate was in the employ of Ruger Bros., ship agents and brokers, and as agent of Ruger That the defendant had a lien on Bros. opened an account with de- the deposits to pay any debt due fendant, and made deposits in his from Ruger Bros. to them. 12 Clark own name, but as agent for Ruger Bros. The money was furnished plaintiff's intestate by Ruger Bros., and was deposited by the intestate at their request, the money being as the account was not a trust acfreights collected for other parties count, and the bank in no manner by Ruger Bros., as agents. The de- had notice or knowledge of such fendant had knowledge that the in- equities. testate was in the employ of Ruger Furthermore, the relation between Bros., and the money deposited was the bank and depositor being that furnished the intestate by Ruger of debtor and creditor, the defendBros., and deposited by the intes- ant had the right to set off the tate as their agent. amount due on the note against their liability, by reason of the de- judgment for the plaintiff in the posits, and this right of set off ex- Court of Common Pleas was reisted, though the account stood in versed on appeal to the General the name of the intestate. 3 R. S., Term, and upon a second trial the 5th ed., 635, sec. 12, sub. 10; see complaint was dismissed. also Code of Civil Procedure. Further, with respect to the equities of the persons having claims for freight collected by Ruger Bros. for them, no such persons have appeared and laid claim to any of this $2,000, and by the discharge in bankruptcy obtained by Ruger Bros. the claims of such persons are cut off. The evidence showed that the boy jumped or fell from an up train, and lay between the up and down tracks in such a position that a train on the down track could pass him in safety, if he made no incautious movement to bring himself nearer the down track. The engine, tender, and first two cars of a train on the down track passed his prostrate The judgment was right, and must body without touching, when by a be affirmed. Judgment affirmed. Opinion by Daniels, J.; Barrett and Brady, JJ., concurring. NEGLIGENCE. FORMER AD JUDICATION. N. Y. COMMON PLEAS. GENERAL TERM. sudden movement the boy threw Held, That as the proof on the second trial was the same as on the first, the last General Term was bound by the decision already an McKenna, adm'r, v. The N. Y. nounced by the same tribunal, and Central & Hudson R. RR. Co. the conclusion then arrived at. The movement that thrust thrust his body into danger was unexpected and unforeseen, and could not be expected to enter into ordinary calculations of probabilities. The engineer was not in fault, therefore, for not taking the possibility of such a movement into account, and for not stopping the train to prevent accident from such a cause. Judgment affirmed. Opinion by J. F. Daly; Van Action brought to recover dam- Brunt, J., concurred; Larremore, J., ages for the death of a boy, who dissenting. was run over by a train on one of defendant's tracks in this city. A NEGLIGENCE. CROSSING RR. of people attending the races. You will take this into consideration in TRACK. N. Y. COMMON PLEAS. GENERAL in estimating the degree of care TERM. which the company was chargeable with under circumstances of this Fanny Semel, admr'x, v. The N. character." Y., N. H. & H. RR. Co. Decided June 7, 1880. Verdict for plaintiff. Defendant appealed. E. Lauterbach, for plff. A judge's charge to a jury in an action for damages for negligence should specify what deHeld, That under the decision of gree of care the defendant should exercise in notifying the approach of trains. the Court of Appeals in Grippen v. A charge which left it entirely within the dis- New York Central Railroad Comcretion of the jury to determine what precau-pany, 40 N. Y., 34, and Beisiegel v. tions the defendant should have taken to pro- New York Central Railroad Comtect persons at crossings is erroneous. pany, 40 N. Y., 9, this charge is erroneous, and the judgment should be reversed. Action for $5,000 damages for the loss of plaintiff's husband, who, on the 7th of June, 1879, when return- That the scope of this charge, ing from the races, was struck while which was objected to, left it entirecrossing the railroad track at Ford- ly within the discretion of the jury ham, by au engine of defendant to determine what precautions the drawing a train, and was killed. The defendant should have taken to projudge before whom the case was tect persons in guarding their track. tried, in charging the jury, said: It gave no criterion as to what de"Bear in mind, as the proof shows, gree of care they should exercise, that this was a public highway, and neither did it indicate in any way people had a right to cross it, and to the jury any standard by which if the railroad company was guilty negligence upon the part of the of any negligence in notifying the corporation could be measured by approach of trains, or anything else them. In the case of Bersiegel, it you may think it was their duty to was decided that the law does not redo, they would be responsible for quire a railroad company to station an act which was the result of its a flagman at every street or railroad omission or commission. * * crossing where the jury may be of * That the company was obliged to opinion that the travel is so great use every precaution to protect hu- that ordinary prudence requires man life; and you are to take into such precaution for the purpose of consideration, whether it be a bell keeping travelers off such crossing or whistle or whatever it is, the pe- when trains are passing over it. It culiar situation of this place. What would, therefore, clearly appear that might not be dangerous in one place, making the jury sole judges of what would be dangerous in another. It in their opinion the railroad comhas been testified that this was a pany should do, in notifying the ap-. race day, and there were numbers proach of trains, or anything, the jury might think it was their duty cross-examination of the plaintiff to to do, was clearly erroneous. prove, if he could, that the plaintiff Opinion by Van Brunt, J.; J. F. had been guilty of fraud, although it Daly, J., concurred. CREDIBILITY OF WITNESS. N. Y. COMMON PLEAS. GENERAL might have been in a case independent of the one before the court. Of course the defendant was bound by any answers which the plaintiff might make to any questions put on this point. But that ought not to deprive him of the right of hav Francis McNamara v. Jacob B. ing the benefit of such testimony as Tallman. Decided June 7, 1880. The defendant has a right, on the cross-examination of the plaintiff, to show that the plaintiff had been guilty of fraud, although in a case independent of the one before the court. But the exclusion of an offer on the part of the defendant to show on the cross-examination of the plaintiff that he had conveyed his property in fraud of his creditors, and that the conveyance had been set aside as fraudulent, is within the discretion of the court at trial, and cannot be reviewed on appeal. he could elicit, upon cross-examination, from the plaintiff. But it would seem that the exclusion of the offer of defendant to show that the plaintiff had conveyed his real estate in fraud of his creditors, and that such conveyance had been set aside as fraudulent, was not error, because the extent of the cross-examination was within the discretion of the judge trying the cause. The judgment is reversed, because plaintiff was allowed to testifiy that what he swore upon another trial, that This was an appeal by defendant $2,500 was due him, was true. from a judgment for plaintiff, and That the effect of this evidence was was based mainly upon the exclu- to attempt to retry a case which sion, upon cross-examination of had been decided by the courts plaintiff, of questions to show fraud against plaintiff. It was enon his part, and the admission, under objection, of plaintiff's evidence as to the truth of his testimony on another trial. A plaintiff will not be allowed to testify, if objected to, that what he swore to on another trial was true. Alfred Taylor, for plff. tirely immaterial whether or not plaintiff was willing to swear that a claim upon which he had been defeated was well founded or not... It is difficult to say what influence evidence of this description may Held, That it appears that the have had upon the jury. It is not plaintiff's case largely depended possible to say that it may not have upon the weight which the jury had some effect which was injurious would give to his evidence, and any to the case of the defendant. Unquestion which tended to show that der such circumstances, the court, the plaintiff had been guilty of fraud upon appeal, cannot overlook such would necessarily impeach his credi- testimony improperly admitted. bility. In this view, it was of importance for the defendant upon the Vol. 10-No. 10.* Opinion by Van Brunt, J.; Larremore, J., concurred. |