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. cause, still where the question passed upon in each instance is the same, the General Although it is probably the rule, in Term will regard the decision of a preceding general, that the decision of a court General Term on an order as conclusive upon an order continuing or vacating

upon it in passing upon the judgment. The curative statute in question is not open to

an injunction is not decisive either

the the objection that the Legislature has not as to the facts or the law upon power to compel a town to issue its bonds in final hearing of the cause, still in aid of a railroad.

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 injunc- contract a debt in aid of a railroad tion, plaintiffs insisted that that de- company. But all the cases agree cision was not controlling as to the that the Legislature may, by a subpresent appeal, and that it was sequent act, validate an irregular made upon an erroneous idea of the exercise by a town of a power to law as since settled.

bind itself in aid of a railroad preH. L. Comstock and W. Rumsey, viously conferred upon it. for applts.

Judgment affirmed. G. B. Bradley, for respts.

Opinion by Smith, J.; Talcott, Held, That the curative act of P. J., and Hardin, J., concurring.


court to charge that if the jury

found from the evidence that plainN. Y. SUPREME COURT. GENERAL

tiff remained standing in the passTERM. FOURTH DEPT.

age way, visiting or greeting friends, Susan Gilson, respt., v. The Ameri- and did not move right on, it was an can Express Co., applt.

act of negligence on her part which

contributed to the injury, and she Decided April, 1880.

capnot recover. Also, that if the Where a passenger, on his way from the cars, jury found that plaintiff had a reaswas injured, in depot, by a truck of express onable time to pass from the car, to company, drawn by its employees through and through the gate and out of the the crowd, without giving warning of its approach, Held, that these facts establish passage way, before the truck that gross negligence on part of company.

injured her came, then, if she tarThe fact that plaintiff was standing in passage

ried in passage way, and was hurt, way when struck by the truck does not of it it was contributory negligence. Both self amount to contributory negligence, but requests were denied. is a circumstance for the jury to consider upon that question,

Irving G. Vann, for applt. Appeal from judgment on verdict

Lansing & Lyman, for respt. at Circuit, and from order denying

Held, That the facts above stated motion for new trial.

established gross negligence on the Action for damages for injury to part of defendant. person of plaintiff, by defendant, Held also, That the fact of plaintiff's caused by running against her with standing in passage way, and on the a loaded baggage truck at a rail- iron grate, did not constitute conroad depot.

tributory negligence, as matter of There was evidence tending to law, but was a circumstance for the show that defendants' employees jury to consider upon that question. propelled the truck rapidly through

Held also, That the requests to a crowd of people, at the depot, charge were properly denied. Plainwithout giving any warning of its tiff had the same right to be in the approach, and that, when plaintiff passage way as had defendant. As was struck by it, she was in the between her and defendant, there crowd, endeavoring to make her way was no point of time beyond which ont of the depot, she having just her tarrying in the passage way was alighted from a car in which she had unreasonable, unless she had notice been a passenger.

of the coming of defendant's truck Defendant insisted at the trial and she unnecessarily stood in its that plaintiff was negligent in stand- way. ing in the passage way leading from Judgment and order affirmed. the cars, and particularly in stand- Opinion by Smith, J.; Talcott, P. 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 That Ramsey had no authority to PRESIDENT.

employ the plaintiff's testator, and N. Y. SUPREME COURT. GENERAL bind the company by such engageTERM. THIRD DEPT. ment, simply by reason of his posi

tion as president. Marcia J. Hendrickson, exr'x, &c., appli., v. The New York & Albany charter or by-laws shown by which

And there was no authority in the R. R. Co., respt.

power was conferred upon the presiDecided April 8, 1880.

dent to make the employment, and In the absence of authority in the charter or by- no special authority was given him

laws of a railroad corporation, or of special on that subject by the board of diauthority given him by the board of direct

rectors. ors, the president has no authority to employ a person to solicit consents of taxpayers to

Motion for new trial denied, and the issue of bonds and the investment of the judgment for defendant on the verproceeds in the stock of the corporation, and dict, with costs. to bind the corporation by such engagement.

Per curiam opinion. Appeal from a judgment of nonsuit ordered at the Circuit. The action was brought to recover the value of INSPECTION OF BOOKS ATservices of the plaintiff's testator,

TACHED. rendered in procuring signatures of N. Y. SUPREME COURT. SPECIAL TERM. taxpayers of Albany to a form of

FIFTH JUDICIAL DISTRICT. consent to the issue of bonds of the

C Henry Garden et al., v. John City, and an investment of the pro- Sabey, Jr., and several other actions ceeds in the capital stock of the defendant. The plaintiff claimed that against same defendant. the testator was employed to per

A sheriff, who, by virtue of an attachment,

seizes property, pursuant to $ 644 of the form this service by Joseph H. Ram

Code, and also takes possession of the books sey, the President of the Company, pertaining to the business, as directed by and that he had rendered the ser- said section, has no right to submit said vices in pursuance of such employ

books to the examination of the plaintiff in

said attachment action, nor to experts acting ment, and upon the assurance of

in the behalf of said plaintiff, nor to examine Ramsey that, “if the thing was suc- them himself, except for the pure purpose of cessful,” the company would be will- his trust, and only as is necessary to execute ing to make a liberal compensation. S. Hand, for applt.

The defendant S. made a general R. W. Peckham, for respt. assignment for the benefit of cred

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 books of said S., and entered on sought to be established, nor was the execution of his trust. there proof of any ratification by Shortly afterwards, the sheriff, by the latter, by reason of which it be- virtue of several warrants of attachcame bound by his action.

ment, seized the said stock of goods Vol. 10-No. 2.*

the process.

and the office safe, and other things to a complaint, which, for causes of action, in the store, and broke into the alleges matter set up (with other defenses) as

counterclaims in an answer in a foricer acsafe, and took out the books of ac

tion brought against the plaintiff by the decount, and placed them in the hands fendant in the second action. of expert accountants, employed by Assuring that it is competent for the defendant, said plaintiffs, and gave plaintiffs who alleged the counterclaims, to withdraw free access thereto, and excluded

them for the purpose of defeating the plea

interposed against him in the second action, the said defendant and his assignee.

such withdrawal must be made before issue Defendant thereupon made a mo- shall have been perfected in the second action, at Special Term, for an order tion, and such action noticed for trial. staying said sheriff from such con

The defendant, Crary, sued the duct, and, in the meantime, and plaintiff, Demond, and Demond, in until hearing of said motion, ob- his answer, alleged certain matters tained a temporary stay.

of counterclaim, upon which he deE. C. Wright, for motion.

manded affirmative judgment. 1. G. Vann, opposed.

Such action was pending when Merwin, J.: I do not think the Demond instituted an action, on his sheriff has any right to furnish or own behalf, against Crary, alleging permit evidence to the attaching therein, as causes of action, identical creditors from books and papers of matter set by him as defendant in the defendant, which he has at- the first action. tached.

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 there was pending an action in in the legal way.

which he was plaintiff and Demond The sheriff should safely keep defendant, and that therein Demond them; he should allow none to ex- had alleged, as counterclaims, the amine except the defendant or the

same causes of action set forth in assignee, or their agents, at reason- his complaint in the second action. able times; he should not examine

The cause was noticed for trial by them himself, except for the pur- the plaintiff upon this issue, and on pose strictly of executing the attach- the first day of the term for which ment, until the further order of the it had been noticed the plaintiff court.

obtained an ex parte order disconSo ordered.

tinuing or withdrawing his counter

claims in the first action, upon BAR.

which the plea in the second action

was based. U.S. CIRCUIT COURT. E. D. NEW YORK.

The issue was tried, the plaintiff George W. Demond v. George D. Offering in evidence such order. Crary.

Jesse Johnson, for plaintiff. Decided March 27, 1880.

S. W. Holcomb, for defendant.

Benedict, J.: The order permitThe defense of pendency of former action in

volving same cause of action is well pleaded ting 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 as

The 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 suffi

ciency of the foregoing assignment

to the above named assignee.” The LIFE INSURANCE. MARRIED assignee paid four quarterly preWOMEN. ASSIGNMENT miums before the death of Mr. OF POLICY.

Goldsmith. The policy contained

a provision that the same be paid N. Y. SUPERIOR COURT. GENERAL

to Pauline Goldsmith, or her execuTERM.

tors, administrators or assigns. It Rosa De Jonge v. Pauline Gold- was proved and not disputed that smith.

the assignment was with the consent Decided April 5, 1880.

of the company, also, that the plain

tiff 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, the defendant's husband from emor at the death of the insured, if before the expiration of that period, is not assignable barassment, in consequence of a by the wife.

judgment of $5,300, which tied up In case of the assignment of such a policy to a all of his property. It did not ap

bona fide purchaser, who subsequently pays pear that the defendant had any premiums, the assignee is entitled to the re

children. payment of the premiums out of the amount due on the policy, and the assignor will be

The court below held that the asentitled to the balance, although she guaran- signment was void for want of tees and warrants the validity of the assign- power in the wife to assign, and

adjudged that the defendant was This action had been begun by entitled to the fund in court, exthe plaintiff against the Mutual Life cepting an amount equal to the Insurance Company to recover the miums paid by the plaintiff, which 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 Goldsmith, the present defendant, plff. and assigned by her to the plaintiff. Otto Horwitz, for deft. 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.,



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