actual and direct damages by the taking thereof for such crossing, and excluding the consideration of the damages occasioned from the additional expense to which a company might necessarily be subjected at the crossing and by reason thereof, Held, erroneous.-In re petition of the Lockport & Buff. RR. Co., 127.

4. The statute in relation to ringing bells and sounding whistles relates to crossings in a highway, and is not intended as a notice to passengers seeking to get on a train at a station.- Terry v. Jewett, 137.

5. Plaintiff, an employee of defendant, was injured through the negligence of one Brown, the "section boss" under whom he worked. It appeared that Brown had immediately over him a superior officer, the track-master, who employed the section bosses, furnished them with the necessary tools and machinery, received reports from them, and had them under his direction, and also that Brown was a competent man. Held, That defendant was not responsible for the injury; that Brown was simply a co-servant of plaintiff, and did not stand in defendant's place or represent it, so as to make it liable for Brown's negligence.-Barringer v. The D. & H. C. Co., 202.

6. Plaintiff was organized under ch. 940, Laws of 1871, which provided that unless it was organized and one mile of its road laid within three years, all its rights and franchises should be deemed forfeited. In 1873 an act was passed further providing for the organization of the company and extending the time for constructing the mile of road to July 4, 1876. The company was accordingly organized, but did not build any of its road until June, 1878. In an action to restrain defendant from interfering with the construction of the road, Held, That plaintiff lost | its corporate existence by failing to construct the mile of road before the expiration of the time limited by the Act of 1873; that the Acts of 1871 and 1873 must be construed together, and all the provisions of the former act remained in force except as modified; that chap. 598, Laws of 1875, did not apply to plaintiff, as it was not in default at the time of the passage of the act; that § 36 of the General Rapid Transit Act of 1875 is not applicable, unless it is made to appear that the route selected by the commissioners coincides with that covered by plaintiff's charter; that if plaintiff chooses to avail itself of that act, it must comply with its provisions, and must be a valid subsisting corparation, with the right and power to build its road when it seeks to do so.- -The Brooklyn Steam Transit Co. v. The City of Brooklyn, 224.

7. Plaintiff's intestate was killed by an engine which was running through Tenth avenue, in the City of New York, at the rate of 10 or 12 miles an hour. It appeared

8.

that the engine started a moment before the accident from a point in defendant's yard which could not be seen from the place where the accident occurred; that no flagman was near that place; that the bell was not rung or the whistle blown ; and that those on the engine neither could nor did look in the direction it was going. It also appeared that deceased stopped for a freight train to pass, and while her attention was fixed on it stepped on the track and was killed. Held, That a non-suit was properly refused; that there was sufficient evidence of defendant's negligence to submit the question to the jury, and that it could not, under the circumstances, be said as matter of law that deceased was negligent, but it was for the jury to determine.-Casey v. The N. Y. C. & H. R RR. Co., 226.

In such case evidence of the habit of defendant in keeping a flagman at the place of accident is admissible.-ld.

9. The court charged that if the bell was not rung defendant was guilty of negligence, and refused to charge that defendant was not bound by statute to give notice of the approach of the engine by bell and whistle. Held, No error.-Id.

10. In proceedings by a railroad company to acquire the right to cross an existing railroad, it appeared that the latter was owned by one corporation and operated by another under a perpetual lease. The petition did not show that an attempt had been made to agree with the corporation owning the road as to the points and manner of crossing or the compensation to be made. Held, That as to that corporation the petition was fatally defective, but that it was not a necessary party to the proceeding; that in such a case it is not necessary to bring in all the parties who, as lessees or reversioners, have an interest in the road to be crossed: that the proceedings affect only the rights of those who are brought in, and where the lessee is made a party alone the rights of the reversioner will not be affected.-In re The Boston, Hoosac Tunnel & W. RR. Co., 263.

11. In proceedings for the appointment of commissioners to determine the points and manner of crossing the tracks of an* existing railroad, the petitioner is not required to give proof of allegations not put in issue. In re The Boston, Hoosac Tunnel & W. RR. Co., 281.

12. The statute authorizing the crossing of one railroad by another does not limit the company to one crossing, and there is nothing in the statute which excludes from its provisions roads which at sonte points run parallel with the road to be crossed.-Id.

13. The failure of the company owning the first constructed road to object to the location of the new road, as stated in the notice, within fifteen days, does not fix

money was derived from the trust estate, and that as to the $14,548.15 Q. drew from himself, as receiver, certain moneys with which he intended to pay back the moneys so paid out. The Special Term sustained exceptions to the report, and added the $47,048.15 to the amount found due from the receiver. Held, No error: that the referee should have rejected all claim for the allowance of these items; that as between R., the creditors and Q., the debts held by the creditors must be deemed still outstanding; that the moneys, not coming from the bank, paid no debt; that the moneys derived from the trust estate were converted into a claim against the savings institution, and that neither R. nor the cotrustees of Q. were necessary parties to the accounting.In re receivership of Guardian Savings Inst., 163.

See APPEAL, 15, 22; ATTACHMENT, 6; CORPORATIONS, 15, 17; MORTGAGE, 35.

RECORD.

See MORTGAGE, 4, 5, 27.

REDEMPTION. See MORTGAGE, 24, 25.

REFERENCE.

1. A compulsory reference cannot properly be directed in an action upon an account stated. The fact that there were many items which entered into the account stated between the parties is of no consequence if plaintiff is entitled to recover on an account stated.-Baker v. Walsh, 18.

2. The reversal of a judgment and order of new trial on appeal from a judgment entered upon the report of a referee does not affect the order of reference unless specially directed; but where the judgment is reversed upon questions of fact, the court, on motion, usually changes the referee. Whitehead v. Kennedy, 23.

3. An action for the recovery of damages for fraud and deceit cannot be referred by the court to a referee to hear and determine the issues therein. In an action in the nature of tort the defendant is entitled to a jury trial under the constitution, and neither the court nor any statute can deprive him of that right. The same right exists in an action for the recovery of damages for breach of contract.- Verplanck v. Kendall, 126.

4. The order of the General Term merely reversing a judgment entered upon the report of a referee, and granting a new trial, does not have the effect of vacating the original order appointing a referee.-Callin et al. v. The Adirondack Co., 180.

5. And consequently a judgment subsequently directed by the referee, upon due service of a notice of trial by the party in

6.

whose favor such judgment is grantedthe other side ignoring the notice of trial and failing to appear-is regular. — Id.

In order to sustain an exception to a referee's refusal to find facts, it is incumbent on the exceptant to show that the facts requested to be found were established by uncontroverted evidence, and that if found they would have sustained a decision in his favor.--Stewart v. Morss, 416.

7. The complaint averred that defendant had agreed that certain premises owned by him should belong to plaintiff, his son, if the latter should pay all the household expenses of defendant and his wife, or the survivor; that plaintiff expended over $5,000 in executing this contract, when he was prevented by defendant's deeding the property to his second wife. This was al denied by the answer. Held, That the issue was upon the agreement and its performance, and that a compulsory reference would not be proper.-Keep v. Keep, 433. 8. Defendants sold certain property under a chattel mortgage, given by one D. to them and to plaintiffs jointly, to secure advances to be made by the mortgagees to D. In an action to recover the proportion due plaintiffs, it appeared that there were other transactions between these parties, not easily distinguishable in the accounts set forth, which were not covered by the mortgage. The referee, without stating any account or enumerating any items, found certain amounts due plaintiffs from D., and secured by the mortgage. He refused to find or state the manner in which he made up or arrived at the amounts stated in the report. Held, That the correctness of his conclusion could not be determined without a statement of account or enumeration of the items he had in mind when reaching such conclusion, and that the report should be sent back for further findings.-Bigler et al. v. Pinkney, 442.

See ATTORNEYS, 3; CONTEMPT, 3, 4; FRAUDU. LENT SALES, 2; MORTGAGE, 31–33, 40.

1.

RELEASE.

On the revocation of letters testamentary issued to plaintiff as executor of testatrix's husband by order of the surrogate, plaintiff executed to testatrix an instrument whereby he renounced his office, and in consideration of one dollar and other good and valuable considerations he released testatrix individually, and as testatrix, from all claims against her individually, or against her testator or his estate. Held, That this release could not be extended beyond the scope of the Surrogate's Court, or be deemed to apply to any private matters not connected with the estate of the husband.-Trow v. Shannon, 197.

RELIGIOUS CORPORATIONS.
See TAXATION, 9.

REMAINDER.

See WILLS, 4, 5, 8.

REMOVAL.

Plaintiff's assignors were appointed street inspectors of the City of Troy by the Common Council of said City, under the city charter and ordinances passed in pursuance thereof, providing for the appointment annually of street inspectors, who should hold office for one year, unless sooner removed. By subsequent resolution their pay was fixed at an annual sum, payable quarterly. The office of street inspector having been abolished by an amendment of the charter before the expiration of a year from the date of such appointment, Held, That the inspectors were thereby removed from office; that their appointment was not an appointment or contract for a year, and that they were not entitled to pay for the unexpired part of the year.-Dorr v. City of Troy, 255.

2. The Commissioners of The Fire Department of the City of New York cannot legally remove an employee of the fire department, upon a charge of intoxication, where the fact is admitted by the accused, and satisfactorily explained by the uncontradicted testimony showing that such intoxication was caused by the relator's taking an ordinary stimulant while he was suffering from a chill.-The People ex rel. Hart v. Fire Com'rs, 390.

See POLICE.

REMOVAL OF CAUSE.

The publication of the U. S. Revised Statutes do not effect any statute passed subsequent to December, 1873. Sections 2 and 3 of the act of March 3, 1875, in regard to the removal of causes from a state court to a Federal court, supersedes and takes the place of Subdivision 1 of Section 639 of the U. S. Revised Statutes. Where an action removed is one of those mentioned in Section 2 of the act of March 3d, 1875, the proper condition of the bond is that prescribed by Section 3 of that act.-McLean v. The St. Paul & C. R. Co., 146. 2. National banks are not entitled to have cases in which they are defendants removed to the Federal courts. They are expressly excepted from the right of removal by 8640 U. S. R. S.-Wilder v. The Union Nat'l B'k., 220.

3. In order to remove a cause on the ground that it is a suit arising under the constitution and laws of the United States, it must clearly appear from the record, when all inspected together, that a Federal question is presented and must necessarily be passed upon in the disposition of the case.-Id. 4. if the record presents a Federal question, the citizenship of the parties has nothing to do with the right of removal.—Id.

5. Plaintiff, a resident of this state, is the assignee of a judgment obtained against defendant in the U. S. Circuit Court in Ohio, and he now sues upon the judgment in the Supreme Court of this State. On the trial of the action defendant presented a petition and bond under the Act of Congress of March 3, 1875, providing for the removal from state courts to U. S. Circuit Courts of civil cases arising under the constitution or laws of the United States, claiming that this case involves the construction of § 739 of the R. S. of the U. S. as to whether the U. S. Circuit Court in Ohio had jurisdiction over the defendant in the former action; and asked to have the case removed accordingly, which was denied. It appearing that defendant's answer in the present case does not deny jurisdiction in said Circuit Court of Ohio, or that defendant answered in that court and appeared upon the trial, Held, that the question of such jurisdiction is not now raised by the answer, and hence there is no need of a construction of the U. S. Statute.-Ford v. The Provident Savings Life Ass. Soc., 306. On petition to a state court to remove an action to the Federal court, it is not necessary that a person who is named as defendant, and who is not a necessary party to the controversy, should join in the petition, or be considered as a party to the action.-Cook v. Seligman et al., 328.

6.

REPLEVIN.

660

the machines, which defendants refused to pay. Plaintiff then tendered the amount paid with interest and demanded the machines. In an action to recover possession of the machines, Held, that plaintiff was concluded by the written evidence of 2. the agreement and by proof of its complete performance by defendants and the reception and use of the checks by plaintiff; that a tender of the price was necessary to a right of action for a return of the property, and that a mere tender of the money was not enough, but the tender must be kept good or made good at the trial.-Dodge v. Feary et al., 209.

See PLEADINGS, 9.

RESCISSION.

ROBBERY.

SALE, 2.

RESTITUTION.

1. Judgment was recovered herein by plaintiff which was paid, and thereafter the judgment was reversed and a new trial ordered. Thereupon a motion was made for restitution. Upon such motion it appeared that after the reversal of the judgment the plaintiff had placed the cause upon the calendar, and had taken an inquest by default. Defendant claimed in reply that such judgment by default was void for the reason, as he claimed, that no Held, notice of trial had been served.

That the defendant must resort to Special Term to get rid of the default and judgment if they are erroneous, before this motion for restitution should be granted. -Marshall v. Macy, 21.

2. Defendant received the certificate of the board of canvassers that he was duly elected Surrogate of Kings County, and entered upon the duties of the office. In an action in the nature of quo warranto, relator recovered a judgment declaring him entitled to the office, and took possession thereof. The judgment was reversed by the Court of Appeals, and a new trial or'dered. Held, That the appellate court could compel restitution; that, by the reversal of the judgment, the relator was placed where he was before the trial, and the certificate of defendant stood as the only adjudication.-The People ex rel. Dailey v. Livingston, 519.

REVENUE.

See LIMITATIONS, 2.

RIPARIAN OWNERS.

1. A riparian owner has the right to erect a dam across the stream on his land, and such machinery as the stream in its ordinary stages is adequate to propel, and, if the stream in seasons of drought becomes idadequate for that purpose, he has a

1.

SAFE DEPOSIT COMPANIES.

A safe deposit company was authorized by its charter to invest its capital and funds in bonds and mortgages on unenand also cumbered real estate,

in the public securities or stocks of any state or of the United States, or in the stocks or bonds of any city, county or town, or corporation or association, or otherwise of any state or the United States. It also provided that the corporation should possess the general powers and privileges and be subject to the liabilities and restrictions contained in 1 R. S., chap. 18, tit. 3. In an action upon a note discounted by such corporation, Held, That the corporation was precluded from making such investments; that the security taken was void, and furnished no ground of action, but that the money loaned could be recovered.-Pratt et al. v. Short et al., 492.

SALE.

1. Plaintiff purchased a quantity of goods of T. & Co., and gave his notes for the purchase price, which T. & Co. procured to be discounted by a bark. A portion of the goods were delivered.

Plaintiff was subsequently adjudicated bankrupt, and the holders of the notes proved them in composition proceedings and received their full dividends, and plaintiff was discharged. Afterwards defendants obtained possession of the balance of the goods with the consent of T. & Co. In an action for conversion, Held, That the title to the goods in controversy passed to plaintiff on the sale;