vember, 1877. Defendant took no | plaintiffs' debt was no excuse for the neglect or refusal of the Common Council to audit the plaintiffs' bill. 22 How., 71. action on the bill except to refer it to a committee. The first regular meeting of the Common Council after the presentation of the bill was Dec. 6, 1877. This action was commenced on the 17th January, 1878. Trial was had before Justice Westbrook and a jury, when a verdict for the full amount at the contract price, with interest from Dec. 6, 1877, was directed. At the times of presenting the bill and the commencement of the action there were no funds in the defendant's treasury. R. A. Parmenter, for applt. Robertson & Foster, for respts. Held, No error; that this was an unreasonable neglect and re Further held, That plaintiffs were entitled to interest from the 6th Dec., 1877. 2 N. Y., 135. There was a default when the claim was presented and the defendant neglected for 20 days to pay or audit it. Judgment and order affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., and Landon, J., concur. COSTS ON APPEAL TO fusal to recognize the debt or do N. Y. SUPREME COURT. such acts as were necessary to secure the payment of plaintiffs' just demand. It was in effect a refusal by the Common Council to do its duty so as to enable the plaintiffs to get their pay. Such conduct justified the bringing of plaintiffs' action and the recovery for services rendered under the contract at the rates agreed on. The Common Council cannot by their neglect to act prevent its creditors from getting their pay. 43 How., 361; 2 Abb. Ct. App. Dec., 236. Nor was mandamus a proper remedy when an action at law could be maintained. Wood on Mand., 18; 5 Lans., 267-reversed on another ground, 54 N. Y., 655, but such decision for reversal overruled, 62 N. Y., 434;—11 N. Y., 563; 1 Hun, 1. The want of funds applicable to the payment of GENERAL TERM. THIRD DEPT. Philip Garling, applt., v.Charles W. Ladd, respt. Decided May, 1882. Costs on appeal to County Court where the appeal is taken prior to September 1, 1880, are taxable under and governed by the new code. Appeal from an order of the Albany County judge, denying a motion to vacate a taxation of costs by the clerk of that county. This action was tried before a justice of the peace and judgment rendered in favor of plaintiff in 1876. In June, 1876, defendant appealed to the Albany County Court for a new trial. In November, 1881, trial was had before Hon. T. J. Van Alstyne and a jury and judgment recovered by plaintiff for the sum of one hundred dollars damages. The question on this appeal is, This position is sustained by Wynkoop v. Halbut, 43 Barb.,266, and some other old cases. Two late decisions in the second department take the opposite view. 14 Hun, 628; 25 Hun, 199. I think the reasoning in favor of the older cases. are the costs of appeal from a jus. J. D. Hallen, for applt. Held, No error; that if the costs were properly regulated by § 3070 of the new Code the defendant was entitled to recover them. The plaintiff contends that his rights as to costs were fixed in 1876 when the appeal was taken from the justice's judgment; that as the defendant's notice of appeal made no specific offer for reduction claimed the plaintiff was not called upon to offer to correct; that saying the judgment should have been for defendant was not a statement of the particulars in which the judgment should be more favorable to him, and as a consequence plaintiff was entitled to costs if he recovered any sum in the Co. Ct. But the plaintiff's position is that he acquired rights as to costs. after the appeal was taken in 1876 which the Legislature could not take away or which were preserved by virtue of $3349, 3352, 3347 (11), Code Civ. Pro. The Legislature may take away all costs or increase or diminish the same during the pendency of the action. The conditions upon which the right to costs may depend may be removed or created at its will. Costs in the end will be granted or refused in accordance with the law when the party has the right to costs. 3 Den., 173; 19 Abb., 119. There can be no vested right to costs pendente lite. 1 Duer, 617. The Legislature had the right to change the law as to costs to the prejudice of the plaintiff. The costs in the case before us must be taxed and allowed under the new Code the same as costs are allowed in other cases decided since it took effect. * * * * Order of the County Court affirmed, with $10 costs and printing disbursements. Opinion by Boardman, J.; Learned, P. J., and Landon, J., concur. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. under the circumstances, she had the legal right to make use of the piazza. And being there in this manner it was her right to be pro Clothilde Fleis, respt., v. Sarah tected against the risk of injuries. L. Endicott, applt. Decided May 27, 1882. Where a person is lawfully upon the premises of another, which through the carelessness and neglect of the owner have become dangerous, and injuries are sustained in consequence, an action for damages will lie against the owner where no negligence is shown on the part of the party injured. Appeal from a judgment recovered upon the verdict of a jury and from an order denying a a motion made upon the minutes for a new trial. Defendant was the owner of a house of which Mrs. McGregor was her authorized agent for the purpose of letting. Plaintiff and her husband called for the purpose of viewing an apartment, with the intention of hiring the same. The tenant at the time when they called was out. Mrs. McG. suggested or invited the plaintiff out upon a piazza in order that she might look through a window into the apartment. While upon the piazza plaintiff fell through a rotten plank and received serious injuries. E. H. Benn, for applt. John H. Weed, for respt. Held, That when the plaintiff repaired to the piazza by the invitation or at the suggestion of Mrs. McGregor for the purpose of inspecting these rooms she was lawfully there by virtue of the authority of defendant's agent. She was not there under a mere license, but to accomplish an object for which, to her person arising out of the carelessness or inattention of the defendant to the condition of the piazza. It was said upon the trial, and not contradicted, "that no material repairs had been made on the piazza during the twenty-six years it was owned by the defendant." It was the duty of defendant to observe reasonable care and diligence to maintain it in a safe condition. 40 N. Y., 145; 9 Hun, 618; 57 N. Y., 567. The court charged the jury very specifically that if contributory negligence was proved on the part of the plaintiff she could not recover. Such negligence has not been shown; on the other hand, plaintiff had a legal right to go upon the piazza. It is reasonable to suppose that the wood of which the structure was composed would decay and become unsafe in so long a period of time as twenty-six years. Judgment and order affirmed. Opinion by Daniels, J.; Davis, P. J., concurs. COMMON CARRIER. RE- N.Y. SUPREME COURT. GENERAL Allen Wilson, applt., v. The N. Y. C. & H. R. RR. Co., respt. Decided May, 1882. A stock release which provides for the release of the carrier from all liability for injuries Appeal from judgment in favor of defendant, entered on the report of a referee. Action to recover damages for injuries to a horse belonging to the plaintiff while being transported over defendant's road, alleged to have been caused by defendant's negligence. which the animals may receive in conse- | Appeals has yet made any decisquence of the negligence of the carrier's ion at variance with its repeated servants, or in consequence of insecurity of cars, exempts the carrier from liability for intimations that such is the law. injury to the animals in consequence of a It is held that where general words defective door in the car in which they are limiting the liability of a carrier transported. may operate upon something else as well as upon the negligence of the carrier and his servants, such negligence is not included in the limitation. 6 How. U. S., 384; 71 N. Y., 180; 13 W. Dig., 81. But if we apply this rigid rule of construction it will not aid plaintiff. His horse either fell out or got out of the car because the car door was insecurely hung and insufficient to support or resist the outward pressure of the horse against it. In other words, the damage was caused by the "insecurity of the cars." The contract exempted defendant from all loss and damage caused thereby. If it be true that this does not exempt defendant from negligence in furnishing such a car, or in putting the horse into it, defendant can rely upon the other special exemption of the contract, viz: "the negligence of the said company's servants;" the furnishing the car and the putting of the horse in it must have been their negligence if it was negligence at all. Plaintiff delivered two horses to defendant in October, 1880, at New York, to be transported to Ogdensburg; a special contract being made therefor, which recited that in consideration of a reduced rate for transportation the company "are hereby released from all liability for injuries which the animals, or either of them, may receive in consequence of the negligence of said company's seror in consequence of * * vants insecurity of cars." * The door of the car in which the horses was transported was defective, and one of the horses fell out or got out and was injured. Leslie W. Russell, for applt. D. M. K. Johnson, for respt. Held, That the defendant was not liable. This court, while doubting the wisdom of the rule which allows a common carrier by special contract to exempt himself from his common law liability for his own negligence, has expressed the opinion that such was the rule in this State. 24 Hun, 19. We are not advised that the Court of Seymour et al., respts., et al., applts. in money. Decided April 11, 1882. Testator, after giving the use of $1,000 to each of his daughters and a watch to his daughter A., gave to his daughter E. $35 Held, That this was a general. legacy and subject to abatement. A failure to use appropriate technical lan guage or a misapplication of legal terms will not defeat an intention clearly manıfested and sufficiently disclosed by an examination of the will itself. Testator gave each of his daughters a life estate in $1,000 with remainder to their children, and provided that in case of the death of A. without children the $1,000 should go to E.'s children; but if A. left children they should have the use thereof, and when the youngest of them should come of age the same should be paid to such children. Held, That the bequest over to E's children was not repugnant to the previous gift to A. for life with remainder to her children and that the gift was not void as suspending the absolute ownership for more than two lives, there being no trust created or an express gift to the executors of the sums bequeathed. The will also bequeathed to A. $100 a year, to be paid to her annually from one year after testator's death, and provided that if she should die leaving any money arising from the property devised to her it should go to E. Held, That A. was entitled to receive her full annuity while she lives and until the fund is exhausted. R. A. Stanton, for respts. acy may have a preference over In doubtful cases the courts lean against a construction which makes a legacy specific. 22 Pick., 299. The testator gave to each of his daughters a life estate in $1,000 with remainder over to their children, and provided that "of the $1,000 devised to my daughter Amelia, in case she should die not leaving any child or children living, then the $1,000 I wish to have go to my daughter Emily's children; but in case she dies leaving child or children, then the child. or children are to have the use, and when the youngest shall come to his or her majority, or of age, not longer being a minor, then the same be paid over to said child or children." Held, That although the word "devised" is used inaccurately it distinctly refers to the $1,000, the use of which had been previously given to Amelia, and sufficiently describes it. The word "wish" in the bequest over is plainly used in the same sense as if the testator had said I will or I direct. A failure to use appropriate |