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PRACTICE. REFERENCE.

N. Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.

Titus B. Eldredge, respt., v. The N. Y. & Brighton Beach R.R. Co., applt.

Decided September, 1880.

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the evidence that it was made de-* pends wholly upon information derived from a sworn statement which This action was brought for services as attorthe affiant stated he had seen but ney and counsel for defendant. The answer on information and belief, alleged the which was not produced, nor was services were rendered under a contract for any excuse made for its non-proa stipulated sum contingent on plaintiff's duction. Such testimony is unsatissuccess, and also set up mis-performance by

plaintiff. A reference was moved for by factory. The referee is unexcepplaintiff, on a showing that the examination tionable, and the fact that he is an of a long account would be required, and attorney of this court is not per se a that no difficult questions of law were in- disqualification. volved, and on denial of the agreement alleged. Defendants denied that a long account was involved, and reiterated the existence of the contract alleged in the answer, the affiant stating that he had seen the sworn statement of one of the defendant's officers that such a contract was in existance, but such statement was not produced, nor any reason given for its non-production.

Order affirmed with $10 costs and disbursements.

Opinion by Gilbert, J.

OYSTERS. CONVERSION.

EVIDENCE.

Held, That as the moving affidavit and the N. Y. SUPREME COURT. GENERAL papers and proceedings herein showed that

a reference should be ordered unless the contract pleaded in the answer existed, and that the evidence of its existence as given on a hearing of the motion was unsatisfactory, the reference was properly ordered. The fact that the referee is an attorney of this court is per se no disqualification in an action of this character.

Appeal from an order of the Special Term, referring this action to a referee.

The facts appear in the head note preceding.

Davenport & Leeds, for applts. Titus B. Eldredge, respt. in person. Held, The papers and proceedings show satisfactorily that the trial of this action will require the examination of a long account, unless the evidence of the services of the plain

TERM. SECOND DEPT.
Daniel McCarty et al., respts., V.
Thos. Holman et al., applts.

Decided September, 1880.

While the right of fishing in the navigable waters of the state is common to all its citizens, yet any citizen has the right to acquire property in oysters which he has planted upon a bed distinctly designated by stakes, and where no oysters were growing at the time. This right of property rests upon the same principle which governs that in fere nature which has been caught and re claimed.

It is a misdemeanor to take and carry away

oysters so planted. The same right of property extends to and em

braces the offspring of the parent oyster so planted, which remain in the bed so designated.

Defendants justified a claimed conversion of property by attempting to show that the

ground where the conversion took place was a common oyster bed before it was acquired by plaintiffs. Held, that a question to one of defendants' witnesses, whether he had ever

got oysters on that gronnd before a certain time, but which was not limited in scope to a period prior to the planting of the beds by plaintiff, was properly excluded.

navigable waters of the state is common to all its citizens, it is the right of any citizen to acquire an exclusive property in oysters which he has planted upon a bed distinctly marked by stakes, and where no oysters were growing at the time. Appeal from a judgment entered 14 Wend, 47; 4 Barb., 595; 32 Barb., in favor of the plaintiff on a verdict 589. This right of property rests on of a jury. the same principle which governs This action was brought for the that in animals feræ naturæ which conversion of certain oysters. It have been caught and reclaimed. It appeared that the plaintiffs, in July, is a misdemeanor to take and carry 1876, selected certain ground for away oysters so planted. Laws of planting oysters. They dredged the 1866, ch. 753. We hold that the same to ascertain whether there was same right of property extends to a growth of natural oysters there, and embraces the spaat of the parent and found none. They then staked oysters so planted, which remain in out the ground distinctly according the bed so designated. The spaat to the custom of oyster men, and when expelled are so minute that purchased and planted therein a they are carried away by currents. large quantity of scallop-shells and and are lost unless fastened to an obseed oysters. The said shells were ject to which they can adhere. The placed as necessary to catch-oyster- plaintiffs provided means to save the sprat, floating on the water. A spaat, and we hold that the propergood "set" was caught, which was ty in the oyster so preserved, is as watched and tended by plaintiffs good as that in the parent oyster. for more than two years, until the young oysters were fit for market. At this time the defendants went on the grounds and took away a large quantity, which they sold and refused to return or account for. The defense was a general denial, and a claim that the ground was a natural P. J., concurs. oyster bed. Defendant's witness C.

The question put to the witness was properly excluded, because it was not limited to a period prior to the planting of plaintiffs' oysters.

Judgment and order denying a new trial affirmed, with costs.

Opinion by Gilbert J.; Barnard,

was asked whether he had ever NEGLIGENCE. MASTER AND

taken oysters on that ground prior

SERVANT.

to the fall of 1878, which was ob- N. Y. SUPREME COURT.

jected to, excluded and exception

taken by defendant.

A. T. Hoffman and J. H. Clapp,

for applts.

M. J. Keogh, for respts.

GENERAL

TERM. SECOND DEPT.

John H. Garrison, applt, v. The Knickerbocker Ice Company, respt.

Decided September, 1880.

Held, While the right of fishing in An employer is not liable for an injury to his

employee arising from the negligence of a for an injury to his employee arising co-employee. To make him liable it must from the negligence of a co-embe proved that the person through whose negployee. To make him liable, it must ligence the injury happened had been entrusted by the employer with the manage- be proved that the person through ment or control of his business, or some whose negligence the injury hapbranch or department thereof to which the pened had been entrusted by the person injured belonged, and that the injury employer with the management or happened therein in consequence of some negligent act or omission of the person so control of his business, or some entrusted. branch or department thereof to which the person injured belonged, and that the injury happened therein in consequence of some negligent act or omission of the person so entrusted. When the employer entrusts an agent with the performance of his duties, the negligence of the agent is accounted the negligence of the employer. 64 N. Y. 5; 16 Hun,

Appeal from judgment entered on a dismissal of the complaint at circuit, and from an order denying a new trial.

The action was brought for damages resulting from an injury to plaintiff caused by defendant's neg ligence. The plaintiff was engaged

in discharging ice from a barge and landing it upon a dock. The particular cause of the injury seems to have been the negligence of a coemployee whose duty it was to keep the large pieces of ice, as they were lifted from the hold of the barge, clear from the skid or run. Instead of doing so, he allowed one of the pieces to strike the skid violently, It is probable if the fastenings of the skid had been stronger the accident would not have happened. It did not appear who placed the skid in position or by whose direction it was done. Plaintiff claimed one H. placed the skid, but it was

210.

An application of this rule to the case presented shows that there was a failure of proof in every point of view.

Judgment and order denying a new trial affirmed, with costs.

Opinion by Gilbert, J.; Barnard, sents on the ground that there was P. J., concurs. Dykman, J., disquestion whether the platform or to ascend and do his work upon was run which the plaintiff was ordered

a proper structure for that purpose.

NEGLIGENCE.

not shown that he represented the N. Y. SUPREME COURT. GENERAL

defendants in any higher capacity
than did the plaintiff, nor that he
had any control of the work in
which the plaintiff was engaged, or
of the men engaged in performing
the same.

J. W. Ridgeway, for applt.
Maclay & Mudge, for respt.
Held, An employer is not liable

TERM. SECOND DEPT.

William G. Powell, adm'r., &c., respt., v. The N. Y. C. & H. R. RR. Co., applts.

Decided September, 1880.

While the crossing of a railroad, without looking to see whether a train is approaching or not, is ordinarily evidence, and in some cases is conclusive evidence of negligence, yet the rule is not an inflexible one nor applicable in

crossing or not. The evidence showed public

all cases. Regard must be had to the age of in the act of crossing. The evidence the person killed or injured, as the same showed that the passing freight degree of circumspection is not required by train obstructed the view of the an infant, even though he be sui juris, as of an adult. track at the crossing, for the fireman Issue was taken as to whether the place where of the locomotive of the passenger the deceased was killed was a public train testified that, although he was user for more than twenty years, and also the looking ahead, he saw the deceased erection and maintenance by the defendants only at the instant the locomotive of the usual sign post required at public struck him, and that twenty-five crossings by the general railroad act. The seconds only elapsed from the time 'defendants put in evidence a deed from S. to when the locomotive emerged from them of the land thereabout, containing a reservation for a private crossing. Held, The question as to whether this was a public crossing, and whether the deceased was killed at such a crossing, was properly sub mitted to the jury.

There was a conflict of evidence as to whether

the usual cautionary signals were given. Held, Independent of this question, the fact that the defendants omitted all precautions, such as the abatement of speed, attendance

of signal men and the shutting off travel while the train was passing, was evidence sufficient to submit the question of their negligence to the jury.

Appeal from a judgment entered in favor of the plaintiff on a verdict of the jury at circuit.

a curve in the railroad track, which hid the track south of it, until the boy was killed..

There was a dispute on the trial whether there was a public highway or crossing at or near the place of the accident, and whether the deceased was killed at or near such crossing. Plaintiff proved that the crossing had been used by the public as such for more than twenty years, and that the defendant had recognized and proclaimed the existence thereof by the erection and maintenance of the sign-board reThis action was brought to re- quired at such crossings by the cover damages caused by the killing general railroad act. The defendants of plaintiff's minor son by the neg- put in evidence a deed of the land ligence of the defendants. The from one S. to them, reserving a deceased was a boy nine years old. private crossing at this identical Being on the westerly side of the place. There was a conflict of evirailroad track while a freight train dence as to whether the defendants was passing in a southerly direction, omitted to ring the bell or blow the he waited until that train had pass- whistle of the locomotive on aped, and then immediately attempted proaching the crossing. It appeared to cross the railroad at a running that there was no abatement of pace. Having run thirty or forty speed at the crossing, no flagman. feet only, he was struck by the loco- stationed there, and no shutting off motive of a passenger train going the ingress of travellers at the passnorth upon the easterly track at a ing of the trains. speed of thirty to thirty-five miles an hour. It was shown that the boy did not look along the track for respt. before he started to cross or while

Frank Loomis for applt.

H. G. Walcott and B. M. Fowler

Held, Taking the reservation in

the conveyance from S. to the com- The accident happened under cirpany as a standard upon the sub- cumstances calculated to confuse ject of a public crossing, and as- and mislead the deceased. Even if suming that the public user had the requisite signals were given by been coextensive with the reserva- the passenger train, the noise of the tion, there could be no question freight train may have prevented that the accident happened upon the hearing of them by the deceasthe crossing. It was shown that ed; or, as he could only see the the public had used the place as a freight train at the time he compublic crossing for more than twenty menced to cross the track, he may years, and that the defendant had have supposed that the warnings, if recognized this use by the erection given, came from the locomotive of and maintenance of the sign-board that train. It would be revolting required by the general railroad act to the sense of justice to impute to be put at such crossings. This negligence to the boy under such was sufficient evidence to warrant circumstances, and the law does not the submission of this question to require it. 67 N. Y., 417. the jury. While there was a conflict of evidence as to whether the bell of the locomotive was rung and its whistle blown, as required by law, 60 N. Y., 133; 40 N. Y., 34; 59 COUNTERCLAIM. EFFECT OF

N. Y., 631, yet this question, coupled

with the omission of all precautions,

Judgment affirmed, with costs. Opinion by Gilbert, J.; Dykman, J., concurs.

REPLY TO.

such as slowing the train, attend- N. Y. SUPREME COURT. GENERAL

ance of a flagman, stoppage of ingress under the circumstances, is evidence of negligence in whatever way the disputed question of usual signals of the locomotive is decided, and the charge of the judge was proper in this respect. 58 N. Y., 451; 70 id., 119; 71 N. Y., 228.

While the crossing of a railroad, without looking to see whether a train is approaching or not, is ordinarily evidence, and in some cases is conclusive evidence of negligence, yet the rule is not inflexible or applicable in all cases. Regard must be had to the age of the person killed or injured, and the same degree of circumspection is not required of an infant, even though he be sui juris, as of an adult.

Vol. 10.-No. 22.

TERM. SECOND DEPT.

Jacob Carpenter, applt., v. The Manhattan Life Insurance Co., respt.

Decided September, 1880.

A reply to a counterclaim does not operate as a waiver of any objection that the same is not allowable.

In an action brought to recover damages for a

tort, a tort committed by the plaintiff cannot ordinarily be pleaded as a counterclaim. Plaintiff brought an action for the conversion of certain fire wood. The defendants set up a counterclaim on the ground of plaintiff's waste, since plaintiff held a mortgage on the property which was junior to their mortgage. Held, That as the waste was inseparably connected with the conversion it might be properly pleaded, as it was" connected with the subject of the action" within the meaning of those words in the Code.

Appeal from a judgment entered

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