and Danforth, JJ., concur; Andrews, Ch. J., and Finch, J., concur in result; Tracy, J., takes no part, and Rapallo, J., absent. COMMON CARRIERS. NEGLIGENCE. N. Y. COURT OF APPEALS. Nicholas et al., applts., v. The N. Y. C. & H. R. RR. Co., respt. Decided June 13, 1882. If a common carrier desires to free himself from responsibility for his own negligence he must express this intention in his contract in explicit language; it should not be left to inference, argument or construction from general language. This action was brought to recover the value of a quantity of trees shipped by plaintiffs over defendant's road, which were injured by frost, while in defendant's possession, through its alleged negligence. It appeared that when plaintiff applied to defendant to have the trees carried a printed paper, which covers nearly two pages of the appeal book, was handed to him by defendant. as the shipping contract. It contained a large number of special exemptions, among others, for "damage occasioned by delays from any cause, or change of weather." Plaintiff signed this paper, and the trees, as may be assumed upon the case, were lost by the negligent delay of defendant and its servants in transporting them. The defense is that the contract absolved the carrier from responsibility for the consequences of its own negligence. The plain. tiff was non-suited. Arthur C. Smith, for applts. Held, Error. As the circumstances under which contracts of this kind are usually made preclude a careful consideration by the shipper of their language and effect, it is not too much to require that the carrier, who usually prepares the contracts in advance and exacts. the consent of the shipper as a condition of taking his property, shall, in explicit language, if he seeks to rid himself of the obligation of care, and free himself from responsibility for his own negli. gence, express this intention in his contract, and that it shall not be left to inference, argument or construction from general language. 6 How. U. S., 344; 7 Hill, 533; 8 N. Y., 375; 56 id., 168; 71 id., 180. Where a carrier claims to have been exempted by a special exception from liability for his negligence or the negligence of his servants, he must show his immunity on the face of his agreement. Judgment of General Term, affirming judgment of non-suit, reversed and new trial ordered. Opinion by Andrews, Ch. J.; Danforth, Finch and Tracy, JJ., concur; Rapallo, Miller and Earl, JJ., dissent. ADMINISTRATION. N. Y. COURT OF APPEALS. In re administration of estate of Curser, deceased. Decided June 13, 1882. The provision of the Revised Statutes giving a preference to a feme sole in granting let ters of administration was not not repealed by Chap. 782, Laws of 1867. Reversing S. C., 13 W. Dig., 336. This was an appeal from an order of General Term, reversing an order of a surrogate denying an application for the revocation of letters of administration. It appeared that on April 27, 1881, B., a married daughter of C., deceased, filed a petition that letters of administration on his estate be granted to her and V., an unmarried daughter of C., jointly; a citation was issued, was issued, returnable May 11, 1881. On May 7, 1881, V. petitioned that letters of administration be granted to her, relating to it were some amended and some repealed, under the circumstances of such legislation the fact that the statute giving the preference was not directly repealed indicates that it was not intended to be. The two enactments are not so necessarily inconsistent or repugnant as to warrant a holding that there was a repeal by implication. Order of General Term, reversing order of surrogate denying motion, reversed, and order of surrogate affirmed. Opinion by Finch, J. All con cur. SESSMENTS. N. Y. COURT OF APPEALS. In re petition of Blodgett et al. to vacate assessment. and on May 9, 1881, letters of ad- CONSTITUTIONAL LAW. ASministration were granted to her, she having taken the oath and filed her bond. No notice of this application was given to B. On May 11, 1881, on return of the citation, the surrogate denied the petition of B. She thereupon petitioned that the letters granted to V. be revoked. This petition. was denied. Isaac N. Cook, for applt. Held, That so much of the provision of 2 R. S., title 2, part 2, chap. 6, § 28, as gives a preference in granting letters of administration to the feme sole was not repealed by Chap. 782 of the Laws of 1867, relating to the authority and jurisdiction of surrogates. As said act contained no express repeal of such preference, and as it professedly dealt with the relations and capacity of a married woman in case of intestacy, and as the provisions of the Revised Statutes Decided June 13, 1882. The provision contained in chap. 593, Laws of 1870, relating to the improvement and alteration of streets intersecting Eighth Avenue is not fairly or reasonably connected with the subject-matter expressed in the title of the act, and the act in that respect is violative of § 6, Art. 3 of the Constitution and invalid. Reversing S. C., 14 W. Dig., 326. The petitioner seeks to set aside an assessment for regulating, grading, curb, gutter and flagging Eighty-second Street, in the City of New York, between Eighth Avenue and the Boulevard, imposed under an act entitled "An act in relation to regulating and grading the Eighth Avenue in the City of New York." Chap. 593, Laws of 1870. This act provides that "Eighth Avenue from Fifty ninth Street to 122d Street shall Charles E. Miller, for applt. Held, That this act is a local act and therefore should embrace only one subject and that subject should be embraced in the title, Constitution, 6, Article 3; that it did not comply with this provision of the Constitution and the assessment under it was void. The improvement and alteration in any mode of the intersecting streets is not fairly or reasonably connected with the improvement or regulating of Eighth Avenue, nor with any measure adopted with reference to those streets to facilitate the accomplishment of the purpose expressed in the act. The subject-matter of the statute which permitted the assessment is foreign to that indicated by the title and the act in that respect is invalid. N. Y. COURT OF APPEALS. Decided June 20, 1882. A partnership existing between defendant and one R. was dissolved, and notice of dissolution mailed to all persons who had dealt with the firm. R continued the business in the old firm name, and plaintiff thereafter discounted notes indorsed by him in the firm name. In an action upon said notes it was found upon conflicting evidence that plaintiff did not receive the notice of dissolution, and had no knowledge thereof when it discounted the notes. Held, That as to plaintiff defendant must be deemed to have remained a member of the firm, and that he was liable as such upon the contract of indorsement. Affirming S. C., 12 W. Dig., 37. This action was brought against defendants, as partners, to recover against them, as indorsers, upon four promissory notes. It appeared that prior to September 15, 1875, H., the appellant, and one R., composed the firm of H. & Co., and in that name carried on business. They opened an account with plaintiff, and in the course of it obtained discounts, made deposits and drew checks. On September 15, 1875, H. & R. dissolved partnership, but the business was continued in the same place by R. on his own account, but, by the consent of H., in the name of H. & Co. Notice of of this dissolution was given through the newspapers, and mailed to persons who had been dealers All with the firm, and, among others, to plaintiff. The referee found Order of General Term, reversing order vacating assessment, reversed and order of Special Term affirmed. Opinion by Danforth, J. concur. that plaintiff did not receive such notice and had no knowledge of the dissolution of the firm at the time it discounted the notes in snit. These notes were indorsed by R. in the firm name, and discounted by plaintiff at the request of R., but, as it supposed, for the benefit of the firm. The evidence as to whether plaintiff received notice of the dissolution was conflicting. J. P. Solomon, for applt. George C. Lay, Jr., for respt. Held, That the evidence being conflicting, the issue as to whether plaintiff received notice of the dissolution is not for this court to determine. 84 N. Y., 297. As to plaintiff, H. must be deem ed to have continued in the firm, and may be treated as a party to the contract of indorsement. The discount being in the usual course of business, under the circumstances, is within the principle which permits one partner to bind his copartner in dealing under the firm name with one who had no knowledge of the dissolution of the firm. 6 Johns.. 144; 1 Hill, 572; 3 N. Y., 168; 69 id., 571. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Danforth, J. All concur. SHERIFF'S POUNDAGE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Jonathan Woodruff, applt., v. The Imperial Fire Ins. Co. of London, England. Decided May 27, 1882. Under section 3,307 of the Code of Civil Procedure, a sheriff who has taken property by virtue of a warrant of attachment is entitled to poundage in case of a subsequent settlement of the plaintiff's claim before any sale of the property by the sheriff. Appeal from an order fixing compensation of the sheriff on an attachment. A warrant of attachment was issued in this action and under it the sheriff attached property sufficient in amount to pay the sum agreed upon in a settlement of the claim asserted in the action. The plaintiff refused to pay the sheriff's charges for poundage, claiming that no poundage could be allowed when there was no sale. A. Edward Woodruff, for applt. Vanderpoel, Green & Cuming, for respt., sheriff.. Held, That $3307 of the Code gives the sheriff in express terms the right to charge poundage in case of a settlement before judg ment. That, since the case of the German American Bank v. The Morris Run Co., 68 N. Y., 585, was decided under § 243 of the former Code, which did not affirmatively give that right to the sheriff, it is no longer an authority. Order affirmed. Opinion by Brady, P. J.; Daniels, J., concurs. PUBLICATION. N. Y. COURT OF APPEALS. The Market Nat'l Bk. of N. Y., applt., v. The Pacific Nat'l Bk. of Boston, respt. Decided June 13, 1882. An order for service by publication was granted November 23d; service made out of the State November 25th, and judg ment was entered January 20th. Held, That the judgment was premature; that the law requires a full six weeks' publication and not six times in six different weeks; that the service was incomplete until the time for publication had expired and defendant had twenty days thereafter in which to answer. Affirming S. C., 14 W. Dig., 233. This was an appeal from an order, reversing an order of Special Term denying a motion to set aside the judgment herein on the ground that it was prematurely entered. The action was commenced by attachment. On November 23, 1881, an order for service of the summons by publication or by personal service out of the State was made. The summons and complaint were served on the defendant, who was a nonresident, out of the State, on November 25th, and judgment was entered January 20th, 1882. Section 440 of the Code of Civil Procedure provides for publication for a specified time, not less than once a week for six weeks. Section 441 declares that the time shall be complete upon the day of the last publication, and section 787 that the period of publication must be computed so as to include the day which completes the full period of publication. Abram Wakeman, for applt. John T. McDonough, for respt. Held, That the law intended a full six weeks' publication and not six times in six different weeks, 12 Abb. Pr., N. S., 171; that the service was incomplete until the time for publication had expired and defendant had twenty days thereafter in which to answer, and therefore that the judgment was prematurely entered. In cases where service of process is made by publication it is of no little importance that the time. of its expiration should be fixed and certain and such was the intention of the provision of the Code of Civil Procedure above referred to. Order of General Term, reversing order of Special Term denying motion, affirmed. Opinion by Miller, J. All con cur. NEGLIGENCE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. John Congdon, respt., v. The D. & H. C. Co., applt. Decided May, 1882. When a person is lawfully on the premises of a railroad company by invitation or implied license, the latter is bound to exercise due care and prudence towards such person. In an action to recover for injuries sustained under such circumstances, evidence that others had, prior to an accident, occupied the premises in like manner with such licensee under the same circumstances is proper and admissible. Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial. Plaintiff recovered a verdict for injuries to his person, horses, harness and wagon, by being run over by defendant's car. One Young purchased coal from defendants, and they had transported it to Saratoga. For the |