cause, still where the question passed upon in each instance is the same, the General Term will regard the decision of a preceding General Term on an order as conclusive upon it in passing upon the judgment. The curative statute in question is not open to the objection that the Legislature has not power to compel a town to issue its bonds in aid of a railroad. court, upon an order continuing or vacating 1874, if valid, deprives plaintiffs of a an injunction is not decisive, either as to the cause of action, and that that point facts or the law, upon final hearing of the has been already settled by this court. Although it is probably the rule, in general, that the decision of a court upon an order continuing or vacating an injunction is not decisive either as to the facts or the law upon the final hearing of the cause, still in this case, where the question of the Appeal from judgment on report of validity of the act is identically the referee dismissing complaint. Action same as heretofore passed upon by by a certain taxpayer of town of this court, and where the judgment Greenwood, under chap. 161 of Laws now appealed from cannot be reof 1872, for cancellation of bonds pur- versed without overruling that deporting to have been issued by said cision, it seems that the adjudicatown, under the town bonding acts, tion of the predecessor of the presto aid in construction of R. H. & P. ent court must be regarded as setC. R. R. Co., and for an injunction tling the question for this case in pendente lite, restraining all proceed- this court. 2 Ball & B., 286; Ram. ings for payment of said bonds. on Legal Judgt., 292. Plaintiffs claimed that the bonds Held further, That the objection, were illegally issued by reason of that the decision in 5 Hun proan omission in the petition of tax- ceeded upon an erroneous idea of payers of a statement of the fact the law as since settled, is without that the corporation which it was force. This objection has reference proposed to aid was a railroad com- to apparent conflict between Dupany in this State. The main de- anesburgh v. Jenkins, 57 N. Y., 177, fence was that such defect was and People v. Batchellor, 53 id., cured by ch. 608, Laws of 1874. 128; Williams v. Duanesburgh, 66 The validity of that statute was id., 129; Horton v. Town of Thomppassed upon and upheld by same son, 71 id., 513; the latter cases General Term, in this very case, holding that the Legislature has not sub nomine, Rogers v. Smith, 5 power to compel a town, without Hun, 475. On appeal from order its consent, to issue its bonds or continuing the temporary injunction, plaintiffs insisted that that decision was not controlling as to the present appeal, and that it was made upon an erroneous idea of the law as since settled. contract a debt in aid of a railroad company. But all the cases agree that the Legislature may, by a subsequent act, validate an irregular exercise by a town of a power to bind itself in aid of a railroad pre H. L. Comstock and W. Rumsey, viously conferred upon it. for applts. G. B. Bradley, for respts. Judgment affirmed. Opinion by Smith, J.; Talcott, Held, That the curative act of P. J., and Hardin, J., concurring. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Susan Gilson, respt., v. The American Express Co., applt. Decided April, 1880. Where a passenger, on his way from the cars, Appeal from judgment on verdict at Circuit, and from order denying inotion for new trial. Action for damages for injury to person of plaintiff, by defendant, caused by running against her with a loaded baggage truck at a railroad depot. There was evidence tending to show that defendants' employees propelled the truck rapidly through a crowd of people, at the depot, without giving any warning of its approach, and that, when plaintiff was struck by it, she was in the crowd, endeavoring to make her way out of the depot, she having just alighted from a car in which she had been a passenger. Defendant insisted at the trial that plaintiff was negligent in standing in the passage way leading from the cars, and particularly in stand court to charge that if the jury found from the evidence that plaintiff remained standing in the passage way, visiting or greeting friends, and did not move right on, it was an act of negligence on her part which contributed to the injury, and she cannot recover. Also, that if the jury found that plaintiff had a reasonable time to pass from the car, to and through the gate and out of the passage way, before the truck that injured her came, then, if she tarried in passage way, and was hurt, it was contributory negligence. Both requests were denied. Irving G. Vann, for applt. Held, That the facts above stated established gross negligence on the part of defendant. Held also, That the fact of plaintiff's standing in passage way, and on the iron grate, did not constitute contributory negligence, as matter of law, but was a circumstance for the jury to consider upon that question. Held also, That the requests to charge were properly denied. Plaintiff had the same right to be in the passage way as had defendant. As between her and defendant, there was no point of time beyond which her tarrying in the passage way was unreasonable, unless she had notice of the coming of defendant's truck and she unnecessarily stood in its way. Judgment and order affirmed. ing on an iron grate which formed J., and Hardin, J., concurring. a part of the floor of the passage way. Defendant's counsel asked the CORPORATION. POWERS OF PRESIDENT. N. Y. SUPREME COURT. GENERAL Marcia J. Hendrickson, exr'x, &c., applt., v. The New York & Albany R. R. Co., respt. Decided April 8, 1880. In the absence of authority in the charter or bylaws of a railroad corporation, or of special authority given him by the board of directors, the president has no authority to employ a person to solicit consents of taxpayers to the issue of bonds and the investment of the proceeds in the stock of the corporation, and to bind the corporation by such engagement. Appeal from a judgment of nonsuit ordered at the Circuit. The action That Ramsey had no authority to employ the plaintiff's testator, and bind the company by such engagement, simply by reason of his position as president. charter or by-laws shown by which And there was no authority in the power was conferred upon the president to make the employment, and no special authority was given him on that subject by the board of di rectors. Motion for new trial denied, and judgment for defendant on the verdict, with costs. Per curiam opinion. TACHED. was brought to recover the value of INSPECTION OF BOOKS ATservices of the plaintiff's testator, rendered in procuring signatures of N. Y. SUPREME COURT. SPECIAL TERM. taxpayers of Albany to a form of consent to the issue of bonds of the City, and an investment of the proceeds in the capital stock of the defendant. The plaintiff claimed that the testator was employed to perform this service by Joseph H. Ramsey, the President of the Company, and that he had rendered the services in pursuance of such employment, and upon the assurance of Ramsey that, "if the thing was successful," the company would be willing to make a liberal compensation. S. Hand, for applt. R. W. Peckham, for respt. FIFTH JUDICIAL DISTRICT. C Henry Garden et al., v. John Sabey, Jr., and several other actions against same defendant. A sheriff, who, by virtue of an attachment, seizes property, pursuant to § 644 of the Code, and also takes possession of the books pertaining to the business, as directed by said section, has no right to submit said books to the examination of the plaintiff in said attachment action, nor to experts acting in the behalf of said plaintiff, nor to examine them himself, except for the pure purpose of his trust, and only as is necessary to execute the process. The defendant S. made a general assignment for the benefit of cred books of said S., and entered on the execution of his trust. Held, That the plaintiff was prop-itors to K., who took possession of, erly nonsuited, for the reason that among other things, a considerable Ramsey had no authority to bind stock of goods and the business the defendant by the contract sought to be established, nor was there proof of any ratification by the latter, by reason of which it became bound by his action. Vol. 10-No. 2.* Shortly afterwards, the sheriff, by virtue of several warrants of attachment, seized the said stock of goods and the office safe, and other things. in the store, and broke into the safe, and took out the books of account, and placed them in the hands. of expert accountants, employed by said plaintiffs, and gave plaintiffs free access thereto, and excluded the said defendant and his assignee. Defendant thereupon made a motion, at Special Term, for an order staying said sheriff from such conduct, and, in the meantime, and until hearing of said motion, obtained a temporary stay. E. C. Wright, for motion. 1. G. Vann, opposed. Merwin, J.: I do not think the sheriff has any right to furnish or permit evidence to the attaching creditors from books and papers of the defendant, which he has attached. to a complaint, which, for causes of action, alleges matter set up (with other defenses) as counterclaims in an answer in a former action brought against the plaintiff by the defendant in the second action. Assuring that it is competent for the defendant, who alleged the counterclaims, to withdraw them for the purpose of defeating the plea interposed against him in the second action, such withdrawal must be made before issue shall have been perfected in the second action, and such action noticed for trial. The defendant, Crary, sued the plaintiff, Demond, and Demond, in his answer, alleged certain matters of counterclaim, upon which he demanded affirmative judgment. Such action was pending when Demond instituted an action, on his own behalf, against Crary, alleging therein, as causes of action, identical matter set by him as defendant in the first action. The defendant Crary thereupon That is not the object of the at- pleaded as defense, that at the time tachment. If the creditors want to the second action was brought, see the books, they must get them in the legal way. The sheriff should safely keep them; he should allow none to examine except the defendant or the assignee, or their agents, at reasonable times; he should not examine them himself, except for the purpose strictly of executing the attachment, until the further order of the court. So ordered. BAR. U.S.CIRCUIT COURT. E. D. NEW YORK. there was pending an action in which he was plaintiff and Demond defendant, and that therein Demond had alleged, as counterclaims, the same causes of action set forth in his complaint in the second action. The cause was noticed for trial by the plaintiff upon this issue, and on the first day of the term for which it had been noticed the plaintiff obtained an ex parte order discontinuing or withdrawing his counterclaims in the first action, upon which the plea in the second action was based. The issue was tried, the plaintiff George W. Demond v. George D. offering in evidence such order. Crary. Decided March 27, 1880. The defense of pendency of former action involving same cause of action is well pleaded Jesse Johnson, for plaintiff. S. W. Holcomb, for defendant. Benedict, J.: The order permitting the withdrawal of the counter claims in the former action having $5,000, payable to the wife on the been obtained since the issue was death of her husband, and he paid perfected in this suit, and after the the premiums, or if he should be commencement of the term at which living on November 1, 1880, then on this cause was noticed for trial, is that day. The husband died in not sufficient to defeat the plea. 1877. Before his death his wife asThe defendant is entitled to judg- signed the policy to the plaintiff, by ment dismissing the complaint. an instrument in writing, which Judgment accordingly, with costs. guaranteed "the validity and sufficiency of the foregoing assignment to the above named assignee." The assignee paid four quarterly premiums before the death of Mr. Goldsmith. The policy contained a provision that the same be paid to Pauline Goldsmith, or her executors, administrators or assigns. It LIFE INSURANCE. MARRIED WOMEN. ASSIGNMENT N. Y. SUPERIOR COURT. GENERAL Rosa De Jonge v. Pauline Gold- was proved and not disputed that smith. Decided April 5, 1880. the assignment was with the consent of the company, also, that the plaintiff was urged by the defendant to An insurance policy, payable to the wife of the accept the assignment and relieve insured at the expiration of a certain time, or at the death of the insured, if before the expiration of that period, is not assignable the defendant's husband from embarassment, in consequence of a judgment of $5,300, which tied up all of his property. It did not appear that the defendant had any children. The court below held that the assignment was void for want of power in the wife to assign, and adjudged that the defendant was entitled to the fund in court, excepting an amount equal to the premiums paid by the plaintiff, which This action had been begun by the plaintiff against the Mutual Life Insurance Company to recover the amount of a policy of insurance amount was adjudged to be paid to upon the life of Henry Goldsmith, the plaintiff. Plaintiff appealed. for the benefit of his wife, Pauline James K. Hill and J. A. Shoudy, for Otto Horwitz, for deft. Goldsmith, the present defendant, plff. and assigned by her to the plaintiff. The insurance company was al- Held, That the judgment should lowed, by order, to substitute the be affirmed on the authority of present defendant in its place, hav- Brummur v. Cohn, decided by N. ing deposited the amount due upon Y. Common Pleas, General Term. 9 the policy. The policy was for Weekly Dig., 458, and 58 How., |