by a bank, an officer thereof who has committed none of the wrongs alleged mitted none of the alleged wrongs, but has and acted merely as the agent or acted merely as the agent or officer of the officer of his bank in receiving the bank in receiving the money, is not personally liable therefor. An appeal will not lie to the Court of Appeals, from an order of General Term reversing a judgment where it cannot be maintained that the uncontroverted facts entitled the respondent below to an affirmance. Appeal dismissed. Opinion by Rapallo, J. All con CONTRACT. メ BETTING AND money, and the payment was in fact to the bank and the money went to its use, defendant could not be held personally liable to plaintiff, but the action should have been against the bank. The position cannot be mainThis action was brought to re- tained that the uncontroverted facts cover sums paid by plaintiff to de- entitled plaintiff to an affirmance by fendant, which were alleged to have the General Term of the judgment been extorted from plaintiff's of- in its favor; and therefore the apficers without consideration, and peal should be dismissed. 73 N. Y., wrongfully, by means of a conspir- 136; 46 id., 564. acy between defendant and the national bank examiner. The defenses were a denial of these allega- cur. tions, and as to a part of the sums paid that it was for services rendered to plaintiff by a bank of which defendant was president; that the payment was to that bank and not to plaintiff, and that it was made voluntarily. As to the residue, that it was a voluntary, charitable contribution to a church of which defendant was treasurer. There was evidence in support of each of these propositions. It was claimed that, excluding all the charges of wrong and conspiracy, the evidence showed conclusively that the sums were paid without consideration by plaintiff's officers when it was in a failing condition, and on that ground alone plaintiff was entitled to recover. W. A. Beach, for applt. Aaron Pennington Whitehead, for respt. Held, That assuming, without deciding, that the payments, though voluntarily made, could be recovered back by plaintiff, under the circumstances, still, if defendant com GAMING. N. Y. COURT OF APPEALS. Harris et al., respts., v. White, applt. Decided Sept. 21, 1880. A contract to drive horses for the owner in races or contests of speed competing for purses, prizes or premiums to be paid the winner is not illegal. If there are special laws allowing rewards to be offered for contests of speed at certain places, it is not unlawful or against public policy to trot a horse there or to make and perform a contract to do so. Entrance fees paid by the owner at races by associations for the improvement of horses, and driving parks, formned under particular statutes, and which offer prizes to the winner, which go into the treasury and are mingled with the receipts, are not bets and stakes within the meaning of the penal statute. At the time the contract was made all but one of the entries were for races to be held in other states. Held, that what was done in other states could not be deemed in violation of the statute or against the public policy of this state. In the absence of proof as to what the law is speed for purses, prizes or pre in other states, they will not be presumed to have statutes like the one in this state; no such presumption is made of statutes imposing a penalty or forfeiture. miums, and not for a bet or wager, his findings were consistent. The words "purse, prize or premium,” as used in chap. 91, Laws 1868, § 3; chap. 523, Laws of 1860, § 3; chap. 609, Laws 1872, § 2; are not equivalent to the words "bet or stakes," This action was brought to recover for the services of plaintiff, E. H., as a driver of race horses, and for other items of account. Defend- as used in the Revised Statutes. 1 ant contested the item for driving R. S., 672, § 55. during the year 1875, as to what horses should win, and that the plaintiffs drove, by the order of defendant, so as to make it sure to those in the plot which horse would take the purse. race horses as in violation of the There was evidence of a secret laws of this state against horse bargain between the defendant and racing and betting and gaming. 1 other horsemen at different tracks, R. S., 662, § 8; id.. 672, § 55; id., 673, § 57. The referee found, and it was proved as a fact, that the service was rendered under an express oral contract, whereby E. H. was to drive defendant's horses during the trotting season of 1875, Held, That although this was at such times and places as the de- wrongdoing it did not fall under the fendant might desire, in races or inhibition of the present statute contests of speed, competing for against bets and stakes. purses, prizes or premiums, to be It was also proved that the plainpaid to the winner therein. He tiff, E. H., during the year 1875, also found that when the contract alone and with defendant, purchased was made defendant's horses had pools and got gain thereby. There been entered for races at Phila- was no proof as to what buying of delphia, Baltimore, Brooklyn, Hart-pools is, or that these pools were ford and Boston, only one of which formed on a contest in which deplaces is in this state. He also fendant's horses were to engage, or found that the contract did not, by that the winning or losing of them its terms, stipulate for or contem- depended upon plaintiff's driving or plate the driving of horses for any riding. bet or wager, or in violation of any of the statutes of the State of New York, and rendered a judgment in favor of the plaintiffs. P. C. Williams, for applt. Held, That this was not sufficient to warrant a reversal of the judg ment. Also held, That whatever was done or agreed to be done outside of this state by plaintiffs is not to be Held, no error; that the contract deemed a violation of the statute, or did not contemplate a driving for a against the public policy of this bet or wager or stakes; that the state. referee, in finding that the agree- All wagers were not illegal at comment was to drive in contests of mon law. Cowp., 729; 3 T. R., 693; 4 Johns., 427. It was not were rendered at places not within illegal at common law to make a bet the exception of the statute. or wager on a horse race, and an action to recover a wager won could be maintained. 2 Camp., 438; 2 Wils., 309; 1 Den., 170. It would not have been illegal at common law to have offered a purse, prize or premium-that is, a reward for a horse that excelled in speed, or to have agreed to drive or ride a horse in a contest therefor. Also held, That the entrance fees paid by defendant for his horses at races by associations for the improvement of horses, and for driving parks which had been formed under particular statutes or under a general law, and which offered prizes to the winner, which went into the treasuries of these associations and were mingled with other receipts, were not, within the purview of the penal statutes, bets or stakes for No proof was made of what the law was in the other states where the contract was to be per- which the animals were trotted. formed. Judgment of General Term, Held, That it will not be pre-affirming judgment for plaintiffs, sumed that such states have stat- affirmed. utes like the one in this state; no such presumption is made of statutes imposing a penalty or forfeit22 N. Y., 472. ure. A court cannot take judicial notice of any laws of other states not according to the common law. 10 Wend., 75. Opinion by Folger, Ch. J. All concur. MASTER AND SERVANT. U. S. SUPREme Court. Annie Hough, plff. in error, v. The Texas & Pacific RR. Co. 1879.) (Oct. A master, whether a natural person or The insertion in the Revised Statutes, in the act forbidding horse racing, of an exception by which it is not unlawful to engage in it when by special laws for that purpose it is expressly allowed-1 R. S., 672, § 55, is not limited to the time of the adoption of those statutes, but has If there are prospective effect. special laws allowing rewards to be Those, at least, in the organization of a railroad offered for contests of speed at certain places, then it is not unlawful or against public policy to trot a horse there, or to make and perform a contract so to do. Defendant having averred in his answer that the services sued for were in violation of the laws of this state, was bound to prove that they corporation, although not to be held as guaranteeing the absolute safety or perfection of machinery or other apparatus provided for the servant, is bound to observe all the care which the exigencies of the situation reasonably require in furnishing instrumentalities adequately safe for use. corporation who are invested with controlling or superior duty in that regard, represent its personality; their negligence, from which injury results, is the negligence of the corporation. If the servant, having knowledge of a defect in machinery, gives notice thereof to the proper officer, and is promised that such defect shall be remedied, his subsequent use of the machinery, in the belief, well-grounded, that it will be put in proper condition within a reasonable time, does not necessarily, or as that deceased knew of the defective a matter of law, make him guilty of con- condition of the cow-catcher or tributory negligence. It is for the jury to say whether he was in the exercise of due pilot, and having complained thereof care in relying upon such promise, and in to both the master-mechanic and using the machinery after knowledge of its foreman of the round-house, he was defective or insufficient condition. The promised a number of times that burden of proof, in such a case, is upon the company to show contributory negligence. Error to the Circuit Court of the United States for the Western District of Texas. Action to recover damages for the death of plaintiff's husband, alleged to have been caused by the company's negligence. the defect should be remedied, but such promises were not kept; that a new pilot was made, but, by reason of the negligence of those officers, it was not put on the engine. The evidence, in behalf of the company, conduced to show that the engine was not defective; that due care had been exercised, as well in its purchase as in the selection of The evidence in behalf of the plaintiff tended to show that the engine of which deceased had the officers charged with the duty charge, coming in contact with an of keeping it in proper condition; animal, was thrown from the track, that the defective cow-catcher or over an embankment, whereby the pilot was not the cause of the engine whistle, fastened to the boiler, was being thrown from the track; that blown or knocked out, and, from the the whistle was securely fastened, opening thus made hot water and and did not blow out, but the cab steam issued, scalding the deceased being torn away, the safety-valve to death; that the engine was thrown was opened, whereby the deceased from the track because the cow- was scalded; that if any of the alcatcher or pilot was defective, and leged defects existed, it was because the whistle blown or knocked out of the negligence of the masterbecause it was insecurely fastened mechanic and the foreman of the to the boiler; that these defects round-house, for which negligence, were owing to the negligence of the the company claims, it was not recompany's master-mechanic, and of sponsible. the foreman of the round-house at Marshall; that to the former was committed the exclusive manage- Held, That while it is the general ment of the motive power of defend- rule that a servant takes upon himant's line, with full control over all self the natural and ordinary risks engineers, and with unrestricted and perils incident to the performpower to employ, direct, control, ance of the services in which he and discharge them at pleasure; engages, there are well-defined exthat all engineers were required to ceptions, which, resting, as they report, for orders, to those officers, clearly do, upon principles of justice, and, under their directions alone expediency, and public policy, have could engines go out upon the road; become too firmly established in A verdict was rendered for defendant. our jurisprudence to be now dis- for the obvious reason that the serregarded or shaken. vant who is to use the instrumentalOne, and, perhaps, the most im- ities provided by the master has, portant of those exceptions arises ordinarily, no connection with their from the obligation of the master, purchase in the first instance, or whether a natural person or a cor- with their preservation or mainteporate body, not to expose the ser-nance, in suitable condition, after vant, when conducting the master's they have been supplied by the business, to perils or hazards against master. 17 Wall, 557. which he may be guarded by proper A railroad corporation may be diligence upon the part of the mas- controlled by competent, watchful, ter. To that end the master is and prudent directors, who exerbound to observe all the care which cise the greatest caution in the seprudence and the exigencies of the lection of a superintendent or gensituation require, in providing the eral manager, under whose superservant with machinery or other in- vision and orders its affairs and strumentalities, adequately safe for business, in all of its departments, use by the latter. It is implied in are conducted. The latter, in turn, the contract between the parties may observe the same caution in the that the servant risks the dangers appointment of subordinates at the which ordinarily attend or are inci- head of the several branches or dedent to the business in which he partments of the company's service. voluntarily engages for compensa- But the obligation still remains to tion; among which is the careless- provide and maintain, in suitable ness of those, at least, in the same condition, the machinery and apparwork or employment, with whose atus to be used by its employeeshabits, conduct, and capacity he an obligation the more important, has, in the course of his duties, an and the degree of diligence in its opportunity to become acquainted, performance the greater, in proporand against whose neglect or incom- tion to the dangers which may be enpetency he may himself take such countered. Those, at least, in the precautions as his inclination or organization of the corporation, who judgment may suggest. But it is are invested with controlling or equally implied in the same contract that the master shall supply the physical means and agencies for the conduct of his business. It is also implied, and public policy requires, that, in selecting such means, he shall not be wanting in proper care. His negligence in that regard is not a hazard usually or necessarily attendant upon the business. Nor is it one which the servant, in legal contemplation, is presumed to risk, superior authority in that regard, represent its personality; their negligence, from which injury results, is the negligence of the corporation. The latter cannot, in respect of such matters, interpose between it and the servant, who has been injured without fault on his part, the personal responsibility of an agent who in exercising the master's authority has violated the duty he owes as well to the servant as to the corporation. |