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from such account stated; that the account in this case has other and greater force than that of a mere account stated, or of the mere admission of its correctness; that upon its face the statement in such account is evidence of an express agreement by Mr. F. to pay interest on interest. It is a settled and liquidated

account, and made by the debtor himself, and expressly asserts upon its face that it is settled and liquidated. It is, in legal effect, an agreement, or involves an agree ment, to pay such balance, as much as if he had written in the shape of a peremptory note to P. that the amount so speci-a physician, than of other persons who

The value of original entries as eviwhich is no more pressing in the case of dence, rests upon the doctrine of necessity,

fied was due to him. It is in the nature

of a new agreement to pay the compound honesty of their books, after proper prekeep no clerk, and have to rely upon the

interest embraced in such stated balance.

Holmes v. DeCamp, 1 John. 34; Exliminary proof has made them evidence. No reason presents itself for exceptions enough now, and our courts show no apin favor of physicians; the rule is broad proved intent to enlarge its application.

Plaintiff did not make this book competent evidence by the necessary preliminary proof. The book was therefore improperly received in evidence.

Judgment reversed and new trial ordered.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring.

parte Bevan, 9 Vesey, 224.

The judgment should be corrected by inserting in it the amount struck out of the account for compound interest, and as thus corrected, affirmed.

Opinion by Smith J.

EVIDENCE. BOOKS OF ACCOUNT.
N. Y. SUPREME COURT, GEN. TERM.,
FIRST DEPT.

Knight, respt., v. Cummington, et al, Adm'rs, applts.

It was admitted in evidence, plaintiff claiming that the diary of a physician did not come within the intent of the rule laid down in Vosburg v. Thayer, 12 Johns. 461.

On the hearing before the referee, plaintiff offered his physicians' diary to prove the number of visits which he had made to defendants' intestate.

E. C. Ripley for respt.
Amos G. Hull for applt.

No proof was given that the plaintiff had no clerk, that the book was correctly kept, and that others had settled by it, and had found it accurate.

On appeal. Held, That the question

presented is, whether physicians possess any greater privileges as to the admission of books, than merchants or traders.

Decided December 6, 1875.

Diary of physician cannot be offered in evidence without conforming to N. Y. SUPREME COURT-GENERAL TERM the rule relative to books of account.

FOURTH DEPT.

HIGHWAYS.

Appeal from judgment entered on report ot referee.

Beck v. Carlton, et. al.
Decided January, 1876.

This action is brought by plaintiff to A person digging a pit or ditch near or

recover for services rendered as a physician to defendants' intestate.

in a highway, must see that travelers are protected from falling into it. The same rule is applicable to an alley in a city, although the ditch or pit is not in the exact bounds of a street, alley, or lane.

INJURIES. DAMA-
GES.

In the village of Bath, in this State, was an alley or lane. It was laid out by the owners of the land along its line more than 20 years prior to the accident in

question. The alley was never recorded provided the excavation is so near the highway that a person lawfully using it, and using ordinary caution, falls into it, and it makes no difference that the excavation is 7 to 9 feet from the originally established bounds of the highway."

There was a judgment for the plaintiff. Defendant moved for a new trial at Special Term, and such motion was granted, and from such order plaintiff appeals to this court.

as a public street or highway. It has always been used, since it was opened, by teams and foot passengers, at pleasure.

This alley varied in width along its length, and at the place of the accident was about thirty feet wide.

Plaintiff was constructing some buildings, and the back of such buildings were on the alley, and at the rear of them were some openings, about eight feet deep, and it was claimed that these openings did not extend into the alley.

At about 8 P. M., plaintiff was passing along this alley; it was quite dark, and raining, and the middle of the street very muddy; the alley was somewhat obstructed by building materials, and plaintiff, in keeping along near the rear of these stores, and in attempting to turn out for a team, fell into one of these openings, and was injured, and brings this action for the injury.

The openings were uncovered, and there were no fences or boundaries to indicate

the limits of the street.

The judge on the trial charged the jury "that it was not material whether the opening into which the plaintiff fell was within the bounds of the street or within the bounds of defendant's lot, except so far as it bore on the question of defendant's negligence in leaving the area open. He also charged that a person passing through an alley of that width, cannot be required, and is not expected to know where the lines are. If he exercises ordinary prudence and care to keep within the bounds marked by ostensible boundaries, that is all that can be required of him. He may take the ostensible boundaries and the indications where those boundaries are."

He also charged "that plaintiff was not bound to know where the legal boundary lines of the alley were; that a person is liable for an accident caused by an excavation upon his own land, so situated that a person using the highway, and using ordinary caution, falls into the excavation,

Held, That the principle laid down by the judge at the Circuit, was correct; that where the bounds of a road or alley are clearly defined by fences or other boundaries, a person passing along such road or alley is bound to keep within the defined bounds, and for any accident happening to a person outside such bounds, the person owning the land on which any ditch or excavation is made, causing such injury, is not liable; but where the bounds are not clearly defined, and any excavation, &c., is made not directly in the highway, but near to it and so near that a person might, in passing along such road fall into it, the party making the ditch, &c., is liable to any party injured.

How far from the margin of the street or alley the adjoining owner may make an excavation without being liable, must be determined in each case, and the jury must determine in each case the question of liability, having regard to the knowledge the traveler has of the highway, its width, use, and especially the route and the care and caution exercised by the traveler.

Order reversed.
Opinion by Mullen, P. J.

DAMAGES. CONTRACT OF SER-
VICE.

SUPREME COURT OF ILLINOIS. Frederick N. Hamlin v. Albert S. Race. Decided January 21, 1876. When an employee under a contract for payment of money by installments for a term of service is discharged without cause, he can only recover

for the amount that would have been was had after its expiration. In such due, had he continued in service, a case the damage would have conat the time the suit was instituted. tinued, had he been unable to procure If, when discharged, he rescinds the employment during the time. contract, and then sues for its breach, it may be that he can recover for all the damages he sustained during the term by the breach, if the trial was had after the expiration of the term. Apellee was employed on the first of of January, 1873, by Hamlin, Hale & Co.,

The judgment of the court below is re-
versed and the cause remanded.
Judgment reversed.
Opinion by Walker, J.

MANDAMUS.

as a salesman in their store for one year, N. Y. SUPREME COURT, GENERAL TERM— at a salary of $1,020, in monthly installments of $85. They, on the 23d of June following, dismissed him from their service, when they offered to pay him the amount that was due him to that date, which he declined to receive, and on the 6th of the following August brought this suit, to recover the balance for the full year, and on a trial in the court below re'covered the full amount.

The declaration was in assumpsit, and contains a special count, with usual common counts. The plea of the general issue was filed.

Held, 1. That no rule was better established or more inflexible than that a plaintiff cannot recover for money not due at the institution of the suit, that a party cannot do indirectly what he cannot do directly, and that therefore the plaintiff could not recover any more than what was actually due when his action was commenced; to permit a recovery for sums falling due after suit would be an evasion of the rule.

FIRST DEPARTMENT.

The People, ex rel. George W. Carleton, respt., v. The Board of Assessors of the City of New York, applts.

Decided March 7, 1876.

A peremptory writ of mandamus, un-
der Chap. 697, Laws of 1867, to
compel Board of Assessors of N.
Y. City to assess damage to property,
caused by closing street, is proper
upon their refusal to act.
Denial of knowledge or information
sufficient to form a belief, in answer-
ing affidavit, is insufficient to put in
issue positive allegations in the affi-
davit of applicant for writ.
A presumptive right to the writ is all
that is necessary to be shown to secure
success of applicant in such case:
Appeal from an order directing the is-
suing of a writ of peremptory mandamus.
The writ commanded the defendants and
appellants to meet as a Board of Asses-
sors of the City of New York, and to esti
mate the damages done the premises of
lands of the relator, George W. Carleton,
by reason of the closing of the Blooming-
dale road, betweed 82d and 103d Streets,
in the City of New York, by the Commis-
sioners of the Central Park, under and
pursuant to Chapter 697 of the laws of
1867, &c.

2. Had appellee when discharged, terminated the agreement, and then sued on the breach of the contract, it may be that a different rule might have prevailed. Then the cause of action would have been the breach, and it would have been averred that the contract was at an end, The act aforesaid empowered the comand that plaintiff had been thrown out of missioners aforesaid to lay out and close employment, whereby he had sustained streets, avenues, roads, public squares or damage, etc. In such a case it may be places, within a particularly designated that he could have recovered for all the and described district of the City of New damage he sustained during the year by York, adjacent to, and surrounding the the breach of the contract, if the trial Park. This district included territory

forming part of what was called Bloom- that an award must be made in his favor

by the Board of Assessors.

ingdale Road, upon which the applicant claimed that he owned property which was injured by the action of the Commissioners in closing that road.

In the affidavit employed by the relator in his application for the writ, he swore positively to his title to the property; that the Bloomingdale Road, so far as it affected the applicant's premises, was closed by the Central Park Commissioners, and that the closing of the road had depreciated the value of the relator's premises.

It appeared in such affidavit, also, that the Bloomingdale Road was a public road laid out on the official maps of the City of New York.

Jas. A. Deering for respt.
J. A. Beal for applt.

Held, That the statement in the answering affidavit of defendants and appellants, that they had no knowledge or information sufficient to form a belief as to the truth of the various positive allegations in the relator's affidavit, cannot be said to weaken the force of such positive averments, or put the facts alleged to issue.

That the recognition of the road by the various acts of the Legislature, was sufficient, accompanied with the allegations that said Bloomingdale Road was a public road laid out in the City of New York.

A presumptive case was enough to secure the success of his application for the writ. Relator was entitled to have the claim made by him heard by the Board when it was applied for.

That it was not necessary, to entitle the applicant to a hearing, that it should be conclusively shown in the first instance,

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The answering affidavit alleged merely that the deponent, one of the assessors, had no knowledge or information sufficient to form a belief as to the truth of the foregoing allegations.

This action was brought to recover from defendant a balance remaining unpaid The act of 1867 provides that damages upon a subscription made by him for ten shall be awarded to persons whose proper- shares of the capital stock of plaintiff. It ty may be injured by the Commissioners action under it, in closing streets, ave-nal articles of association in which the appeared that defendant signed the originues and roads, Laws 1857, 1750; and that such damages shall be ascertained and paid in the manner specified by laws of 1852, 47, Secs. 3, 4.

proposed railroad was described as in-
tended to be constructed from the N. Y.
C. R. R. to Ithaca, the length of said rail-
road to be thirty-seven miles. The arti-
cles were duly acknowledged and filed,
and the company was, in fact, organized
under them, officers elected and the rail-
road constructed and put in operation,
and calls were made upon the subscribers
for payment of their subscriptions, and
the corporate existence of the company
was recognized by chapter 314, laws of
1869. Defendant claimed that the articles
of association were defective in not defi-
nitely stating the termini of the road, or
the counties through which it passed, as
provided by chapter 140, laws of 1850.
Cox & Avery, for respt.
W. E. Hughitt, for applt.

N. Y. COURT OF APPEALS.

The Cayuga Lake R. R. Co., respt. v. Kyle, applt.

Decided February 8th, 1876.

It is no defense to an action to recover an unpaid subscription, that there was a defect in the organization of the company, where there is a de facto corporation from which defendant may receive his stock.

Held, That the failure to comply literally with the provisions of the statute as to the description of the location of the

property, would not prevent a recovery; that defendant was entitled to the shares for which he subscribed; that by the acts of his associates in going on, locating and constructing the road, and by the legislative recognition of its corporate existence, these shares became shares in a corporation de facto, notwithstanding the defect in the criginal articles; that defendant had received all he had contracted for and should not be relieved from paying for his shares. 26 N. Y., 25.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Rapallo, J.

DIVORCE.

SUPREME COURT OF PENNSYLVANIA. Gilbert T. Harris, applt., v. Elizabeth Harris, respt.

The court below refused to grant the divorce. Libellant appealed.

There is nothing in the evidence in this case to bring the conduct of Mrs. Harris toward her husband within the act of 1854, as a ground of divorce, that is to say, when a wife shall have, by cruel and barbarous treatment, rendered the condition of her husband intolerable, or his life burdensome.

Appeal from Common Pleas of Philadelphia county.

No such cruel and barbarous treatment was shown in this case. If by other means a wife makes her husband's life burdensome or intolerable, as by obstinate silence, laziness, or wilful neglect of household duties, they do not fall within the meaning of the act of 1854.

Decree affirmed, with costs, and appeal dismissed.

Per curiam opinion.

Decided Feb. 7, 1876.

Obstinate silence, laziness, or wilful DEFAULT. PRACTICE.
neglect of household duties on the
part of a wife, do not constitute
cruel and barbarous treatment as a
ground for divorce within the mean-
ing of the act of May 8, 1854.

LACHES

PHILADELPHIA COMMON PLEAS.
Phipps v. Cresson.

Decided February 19, 1876.

When more than three years have elapsed since the commencement of a suit, judgment by default will not be Libel in divorce, a vinculo matrimonii, granted without notice to defendant. filed by Gilbert T. Harris against his wife, In this case an action of assumpsit was Elizabeth Harris, on the ground that re- brought to December Term, 1872, in the spondent had "offered such indignities to late District Court. The writ had been the person of libellant as to render his returned served," and a copy of the condition intolerable and his life burden-claim had been duly filed, but no appearsome, and thereby forced him to withdraw ance had been entered and no affidavit of from his house and family." The cause defense filed. came before the court below, on the report of an examiner. The testimony was to the effect that the witnesses believed that libellant could not live with responHeld, We will not give judgment upon so stale a claim, dent without endangering his health and a mere motion on life, on account of repondent's bad tem- as, the plaintiff having slept on his per and intolerable treatment, but the rights, the defendant might well suppose only specific act of cruelty or bad treat- he had waived them. To give judgment ment testified to, was the refusal of re- now, without notice, would be in the naspondent to speak to libellant for several ture of a snap judgment. The proper days, and sometimes for weeks, without course is to take a rule to show cause. Motion denied. any cause.

Motion for judgment for want of an appearance and affidavit of defense.

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