while so doing is deemed in some degree
the result of his own negligence, and
when there is conflict of evidence upon
that fact it is one peculiarly for the jury.
-Id.

22. In an action for personal injuries and
the damages resulting therefrom, the
plaintiff is permitted to show by the
judgment of medical experts who have
had the proper opportunities of examina-
tion, and knowledge of the symptoms,
the probable future result and effect of
such injury, and whether she would
probably recover.—Id.

23. Deceased endeavored to step upon a
ferry boat while it was being drawn up
to the bridge, when his foot slipped into
a space between the boat and bridge and
he received injuries from which he died.
It was a stormy morning and the deck
was slippery from rain and snow. Held,
That he was guilty of contributory negli-
gence McKenna v. The East River Ferry
Co., 408.

24. It is not negligence as a matter of law
for a man to give up his seat in a car to
his wife and ride on the front platform
where the car is uncomfortably crowded.
-Lehr v. The S. & H. P. RR. Co., 433.

25. In an action against the owners of
leased premises to recover for injuries
caused by its defective condition ques-
tions which tend to produce evidence
that the premises were in bad condition
at or before the time of leasing are
proper and should be allowed to be an-
swered.-Ahern v. Steele et al., 474.

26. Plaintiff was employed by the R., W., &
O. RR. Co. as car repairer. While at
work repairing a car in its yard with a
red flag on the car and with his arm
around the bumper to enable him to put
his whole force on the work, his arm was
injured by a collision with another car
which had been struck by a car thrown
in by defendant's switch engine. Held,
That the questions of negligence and
contributory negligence were for the
jury to determine -Murphy v. The N. Y.
C. & H. R. RR. Co., 494.

27. Defendants were the owners of a
building in the rear of which is a public
alley-a cul de sac. The buildings on
each side of defendants' are built to the
line of the alley, but defendants' rear
wall is built three feet from said line, be-
tween which there is an open area three
feet wide and eight feet deep, with no
guard except a stone wall extending six
inches above the surface of the alley.
Deceased was employed as a private
watchman to go through the alley and
examine the doors and windows of the
buildings, but not defendants'. One night

29. Defendant B. was the owner and occu-
pier of these premises for many years,
when, three years prior to the accident,
he conveyed them to defendants S. & D.,
but continued in possession as their
lessee, covenanting to allow them to
enter to make repairs, etc. S. & D. were
residents of the city, their office being
opposite said premises, and they had been
in it. Held, That the owners were
chargeable with constructive notice of
the existence of the area, it was their
duty to guard it, and they are liable for
the consequences of their omission.-Id.
See ANIMALS, 4; HIGHWAYS, 5-7; MASTER
AND SERVANT, 1-6, 8; MUNICIPAL CORPO-
RATIONS, 2, 5-14, 16–19; RAILROADS, 1,
3-5, 12.

NEGOTIABLE PAPER.

1. It is always competent for the maker of
a promissory note to fix the condition
upon which the note shall be transferred
and to prohibit its transfer unless that
condition be complied with, and a per-
son who takes a note, the use of which is
restricted, as collateral security for an
antecedent debt cannot recover upon it
if it has been diverted from the purpose
for which it was made.-Ayres et al. v.
Doying, 13.

2. A negotiable instrument must be com-
plete and perfect when issued or there
must be authority reposed in some one
to afterward supply anything needed to
make it perfect.-The Davis Š. M. Co. v.
Best, 182.

3. Certain bonds of plaintiff, after the other
signatures were affixed, were delivered
to its president to sign and sell. Instead
of selling them he, without signing, hy-
pothecated them with defendant's com
pany for a loan for the benefit of a bank.
Held, That defendant's company was not
a bona fide holder.—Id.

4. Under the circumstances of the case,
Held, to be a question for the jury
whether defendant was guilty of negli-
gence in signing a paper which he could
not read, which he supposed was a con-
tract of different import, but which

ing town a nuisance and ordering it to be suppressed is a matter within the jurisdiction of the board of health of such town and it can maintain an action to enforce the abatement of such nuisance. -Id.

6. Such order is not required to be published, but to be served upon the occupant of the premises or by posting; it need not be served within the town where the nuisance exists.-Id.

7. Defendant was the occupant of the premises in question within the meaning of the statute, and the order was properly served on its officers.-Id.

8. An injunction will be granted to restrain a municipal corporation from emptying its sewage into a stream and thereby impairing the comfort and enjoyment of plaintiff's dwelling house, rendering his premises unfit for habitation and endangering and enfeebling the health of him and his family.-Jackson v. The City of Rochester, 206.

9. Plaintiff owned and occupied premises at the end of a cul de sac. A uniform grade was established, with gutters nine inches in depth below the sidewalk and the center of the street. The surface waters and drainage were collected in these gutters and conducted to opposite plaintiff's premises, where they spread out and over the surface of the street and there remained, becoming stagnant and emitting offensive odors. Heavy showers of rain flowed this substance over and upon plaintiff's premises, flooding the cellars, polluting the wells, etc. It was entirely practicable to dispose of this waste in such a manner as to avoid the injury complained of by the exercise of ordinary care and skill. Held, That defendant was liable for an invasion of plaintiff's property and for the creation of a private nuisance.-Clark v. The City of Rochester,

212.

10. Evidence that plaintiff and other inmates of the house suffered illness in consequence of the nuisance is competent when offered, not for the purpose of founding any claim of damages therefor, but as bearing upon the depreciation in rental value of the premises.-Id.

11. The conduct of members of the salvation army in simply marching upon the sidewalk, carrying a flag and singing, according to their custom, to induce those who happened to see or hear them to follow them to their barracks, does not amount to a nuisance under the charter and ordinance of the city of Rochester.-The People ex rel. Cartmill et al. v. The City of Rochester, 265.

12. Consideration of admissibility of several

items of evidence in an action for damages and to restrain defendant from discharging its sewage into a stream flowing through plaintiff's premises.—Wing v. The City of Rochester, 461.

See NEGLIGENCE, 28; PRACTICE, 12.

OFFICERS.

1. In proceedings to compel the delivery of books and papers by an officer to his successor, the affidavit of the respondent must be made before the officer who granted the order to show cause. An affidavit made before a notary public is not sufficient. In re McGrory v. Henderson, 99.

OLEOMARGARINE.

1. Section 7 of Chap. 183, Laws of 1885, is constitutional and valid.-The People v. Arensberg, 119.

2. The statutory prohibition is aimed at a designed and intentional imitation of dairy butter in manufacturing the new product, and not as a resemblance in qualities inherent in the articles themselves and common to both.-Id.

3. On the trial of an indictment under that act it is proper to submit to the jury the question whether the article sold was an imitation calculated to deceive.--Id.

4. The provisions of § 8 of Chap. 183, Laws of 1885, by which the possession of butterine or oleomargarine colored to resemble butter is made conclusive evidence of intent to sell the same as butter is constitutional.-The People v. Hill, 452.

PARTIES.

1. Where two of several plaintiffs are designated "as executors," etc., and, the allegations of the complaint set forth and the evidence sustains a cause of action in favor of plaintiffs jointly as copartners in their individual capacity, the words "as executors," etc., may be treated as descriptive, and not as restrictive.-Wick et al. v. Jewett, 526.

See AGENCY, 1; ASSIGNMENT FOR CREDITORS, 4; FERRIES; MORTGAGE, 3; PARTITION, 2.

PARTITION.

1. Where a complaint in partition alleged that some of defendants claimed under a devise which was void, Held, That a bill of particulars of the grounds on which it was claimed that the devise was void could not be required.- Bennett v. Wardell et al., 95.

2. A complaint in partition alleged that by

the will of the ancestor of the parties a trust in the executors was attempted to be created, which was void; that the executors attempted to convey a portion of the lands without authority and that the title to said portion still remained in the heirs at law, and demanded that the deed be adjudged void and for partition of the real estate. Held, That there was but one cause of action set forth and that the grantees of the executors were necessary and proper parties.-Henderson v. Henderson, 459.

3. After three years from the death of a testator his debts cease to be liens on his real estate, but may be enforced against the heirs and devisees in the mode prescribed by statute; a judgment for such debt cannot be allowed and paid out of the proceeds of a sale on partition after such time.-Platt v. Platt, 505.

4. Where an order overruling exceptions to a referee's report in partition as to a claim on the proceeds of sale and confirming the report has been affirmed by General Term, only such parties as filed exceptions and appealed to General Term can appeal to the Court of Appeals.-Id.

See APPEAL, 7; ESTOPPEL, 3; POWERS, 2, 3; TAXES, 30.

PARTNERSHIP.

1. In a suit for a copartnership accounting, the defense was an account stated and settlement of the partnership affairs, and evidence was given in support of such defense, and it also appeared that plaintiff had acquiesced in such account and raised no objection thereto for the period of five years. Held, That the referee was warranted in finding in favor of defendant upon the issues.-Murphy v. Ross, 124. 2. Plaintiff, a married woman, entered into a copartnership agreement with defendant, who agreed to furnish the capital and to buy all the stock, tools, etc., with the assistance of her husband, "who is to represent said Margaret Murphy as her agent, and devote his time and attention to said manufacturing," etc.

The agree

ment was negotiated by the husband, and she had nothing to do, personally, with the conduct of the business. Held, That plaintiff was, under the circumstances, bound by the settlement made by her husband of the partnership affairs. —Id.

3. Plaintiff's assignors were bankers at S., and K. & W. were copartners in business at L. W. made two notes in the firm name payable to his own order, which said bankers discounted and credited the proceeds to his individual account. These notes were the last of a series extending, in several years, through many renewals, each of which was made by W. in

the same form, discounted in the same manner. W. was the financial member of the firm, negotiating all its drafts, etc., and attending to its banking business; but K. had no knowledge of the making, etc., of any of these notes and received none of their proceeds, nor did it appear that any portion thereof ever came to the use or benefit of the firm. Held, That the transaction was neither apparently or really within the scope of the partnership business, and the bank was bound to know that W. had no right to use the partnership name to create or increase individual credit or account at the bank without the consent of his partner, and was chargeable with notice that the transaction was outside of the partnership business, and they could not rely upon the partnership credit.-Spaulding v. Kelly, 199.

4. Where a partnership is for one particular adventure, to be carried out in a mode specifically agreed upon, it is not determinable at the will of any one of the partners, but is to continue until the single enterprise is concluded.-Hubbell et al. v. Buhler et al., 303.

5. The form given to a transaction by a receipt given to a third party, purporting to be a receipt of the firm, by plaintiff as a member of the firm relying upon a statement made by the other member of the firm who has had entire charge of the business out of which the transaction arose, is not conclusive upon plaintiff in an action between him and his partner for an accounting of the partnership business and assets.-Thomas v. Rogers, 364.

6. Where a party keeps no book of account, and the items embraced in the account are indefinite and not supported by any original memorandum entries or vouchers, and the party is unable to give any definite explanation of the items, a referee is justified in rejecting such items of account for indefiniteness and uncertainty.-Id.

7. Where a referee errs in a statement of an account, and to such statement a proper exception is taken, a new trial should be granted unless the prevailing party stipulate to correct the judgment in respect to such error.-Id.

8. A partnership agreement provided that on dissolution either party may make an offer in writing of a price at which he would buy or sell, the other to signify his election within twenty days, failing which the party making the offer could buy or sell at his election. Held, That this was a mere option open to either on dissolution, but if such offer was not made the partnership must be wound up in the usual way.-Lent v. Montross, 404.

9. An agreement provided that as long as
defendant continued as manager and
agent of a company on behalf of the other
party he should receive one half the net
profits of the business in full of all claims
for services during the existence of the
lease held by such other party under
which the business was conducted. Held,
That defendant was not a partner.-De
Cordova v. Powter, 465.

10. Evidence of declarations of one man
that another is his partner is no evidence
of the fact and is not binding on the
other.-Garofalo v. Errico et al., 500.

11. An error in admitting such testimony
is not cured by the ruling that the jury
could discriminate how much it bound
each of the defendants.-- Id.

12. One partner has no right to use firm
funds to pay his own debts, but when a
partner uses firm funds to pay his indi-
vidual debts the firm or its representa-
tive cannot recover back the money so
paid of the payee if the payee received
such money in good faith in the regular
course of business, and without knowl-
edge or notice that the money so paid
him was the funds of the firm.-Ward v.
Higgins, 549.

13. Where a partner uses trust funds in the
payment of partnership debts, for which
he takes credit to himself, and the other
members of the firm have no knowledge
of the sources from which such funds
were obtained, such diversion does not
make the firm a creditor of him for
whom the trust funds were held by the
partner so using them.-Id.

See ASSIGNMENT FOR CREDITORS, 3, 17; Ev-
IDENCE, 7, 8.

PARTYWALL.

1. An assignment of all interest in a party-
wall agreement and in the party wall it-
self is sufficient to carry the right of
action which accrued to the former
owner by reason of the use of the wall.-
Kearr v. Sosson, 480.

2. Where a party in erecting a building
avails himself of the lateral support
afforded by an existing party wall, and is
thereby enabled to build a thinner wall
than would otherwise be allowed by the
public authorities, the walls touching at
front and back and in extensive areas in
other places, he makes use of the party-
wall within the meaning of a partywall
agreement.-Kingsland et al. v. Tucker et

al., 533.

PAYMENT.

1. Defendants, in payment for goods pur-

chased from plaintiffs, handed to plain-
tiffs' bookkeeper a check payable to the
order of the name under which plaintiffs
did business. The bookkeeper appropri
ated the check to his own use, indorsed
by him as attorney in the name of the
company, which indorsement he had no
authority to make. The check was paid
by the bank upon which it was drawn,
and the amount charged to the account
of defendants. In this action to recover
for the goods, Held, That the burden
was upon defendants to show that the
check has been duly indorsed and paid,
and to show the bookkeeper's authority
to indorse it; and that though the check
in question was accepted as payment by
an agent authorized to receive it, yet the
check not having in due course been
paid, plaintiffs had the right to sue
upon the original debt without returning
the check, of which defendants had be-
come unlawfully in possession — Bern-
heimer et al. v. Herman et al., 284.

PENAL CODE.

See BODY STEALING.

PHYSICIANS.

See EVIDENCE, 1, 3.

PLEADING.

1. Although a material element of the
cause of action is not directly averred in
the complaint, still the complaint is not
bad if the existence of said element of
the cause of action may be inferred log-
ically and directly from the complaint,
for whatever can be so inferred is in
judgment of law contained therein, and
an argumentative or inferential averment
is permitted by the practice unless a
motion may be made for an order requir-
ing the complaint to be made more defi-
nite and certain.-Cowper v. Theall et
73.

al.,

2. Plaintiff alleges that he was entitled to
the use of Grass River as it now flows,
that by excavations in the channel de-
fendants sought to divert its waters
wrongfully from plaintiff's mill. De-
fendants set up two counterclaims.
First. That they had prior right to the
use of the waters as they flowed in 1865
and that in that year plaintiff's grantor
wrongfully diverted them and that the
present excavations were made to re-
store each party to its legal rights.
Second. Defendants alleged that plain-
tiff wrongfully stored logs in the channel
which obstructed the flow into defend-
ants' canal. On demurrer, Held, That
the first counterclaim was good and the
second bad.-Grange v. Gilbert et al., 105.