from such account stated; that the ac It was admitted in evidence, plaintiff count in this case has other and greater claiming that the diary of a physician force than that of a mere account stated, did not come within the intent of the rule or of the mere admission of its correct- laid down in Vosburg v. Thayer, 12 Johns. ness; that upon its face the statement in 461. such account is evidence of an express E.C. Ripley for respt. agreement by Mr. F. to pay interest on Amos G. Hull for applt. interest. It is a settled and liquidated

On appeal. Held, That the question account, and made by the debtor himself, and expressly asserts upon its face that it presented is, whether physicians possess is settled and liquidated. It is, in legal any greater privileges as to the admission

of books, than merchants or traders. effect, an agreement, or involves an agree

The value of original entries as eviment, to pay such balance, as much as if he had written in the shape of a peremp, which is no more pressing in the case of

dence, rests upon the doctrine of necessity, tory note to P. that the amount so speci- a physician, than of other persons who fied was due to him. It is in the nature of a new agreement to pay the compound keep no clerk, and have to rely upon the interest embraced in such stated balance. liminary proof has made them evidence.

honesty of their books, after proper preHolmes v. DeCamp, 1 John. 34; Ex

No reason presents itself for exceptions parte Bevan, 9 Vesey, 224. The judgment should be corrected by enough now, and our courts show no ap

in favor of physicians; the rule is broad inserting in it the amount struck out of

proved intent to enlarge its application. the account for compound interest, and as

Plaintiff did not make this book comthus corrected, affirmed.

petent evidence by the necessary prelimiOpinion by Smith J.

nary proof. The book was therefore im

properly received in evidence. EVIDENCE. BOOKS OF ACCOUNT. Judgment reversed and new trial or


Opinion by Brady, J.; Davis, P. J.,

and Daniels, J., concurring.
Knight, respt., v. Cummington, et al.,
Adm’rs, applts.
Decided December 6, 1875.


GES. 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. Appeal from judgment entered on re Beck v. Carlton, et. al. port ot. referee.

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 physi

in a highway, must see that travelers cian to defendants' intestate.

are protected from falling into it. On the hearing before the referee, The same rule is applicable to an alley plaintiff offered his physicians' diary to in a city, although the ditch or pit is prove the number of visits which he had not in the exact bounds of a street, made to defendants' intestate.

alley, or lane. No proof was given that the plaintiff In the village of Bath, in this State, had no clerk, that the book was correctly was an alley or lane. It was laid out by kept, and that others had settled by it, the owners of the land along its line more and had found it accurate.

than 20 years prior to the accident in

question. The alley was never recorded provided the excavation is so near the as a public street or highway. It has al- highway that a person lawfully using it, ways been used, since it was opened, by and using ordinary caution, falls into it, teams and foot passengers, at pleasure. and it makes no difference that the exca

This alley varied in width along its vation is 7 to 9 feet from the originallength, and at the place of the accidently established bounds of the highway.” was about thirty feet wide.

There was a judgment for the plaintiff. Plaintiff was constructing some build Defendant moved for a new trial at ings, and the back of such buildings were Special Term, and such motion was on the alley, and at the rear of them were granted, and from such order plaintiff apsome openings, about eight feet deep, and peals to this court. it was claimed that these openings did Held, That the principle laid down by not extend into the alley.

the judge at the Circuit, was correct; that At about 8 P. M., plaintiff was passing where the bounds of a road or alley are along this alley; it was quite dark, and clearly defined by fences or other boundaraining, and the middle of the street very ries, a person passing along such road or muddy; the alley was somewhat obstruct-alley is bound to keep within the defined ed by building materials, and plaintiff, in bounds, and for any accident happening keeping along near the rear of these stores, to a person outside such bounds, the perand in attempting to turn out for a team, son owning the land on which any ditch fell into one of these openings, and was or excavation is made, causing such ininjured, and brings this action for the in- jury, is not liable; but where the bounds jury.

are not clearly defined, and any excavaThe openings were uncovered, and there tion, &c., is made not directly in the highwere no fences or boundaries to indicate way, but near to it and so near that a the limits of the street.

person might, in passing along such road The judge on the trial charged the fall into it, the party making the ditch, jury "that it was not material whether the &c., is liable to any party injured. opening into which the plaintiff fell was How far from the margin of the street within the bounds of the street or within or alley the adjoining owner may make an the bounds of defendant's lot, except so excavation without being liable, must be far as it bore on the question of defend- determined in each case, and the jury ant's negligence in leaving the area open. must determine in each case the question He also charged that a person passing of liability, having regard to the knowlthrough an alley of that width, cannot be edge the traveler has of the highway, its required, and is not expected to know width, use, and especially the route and where the lines are. If he exercises ordi- the care and caution exercised by the nary prudence and care to keep within traveler. the bounds marked by ostensible bounda Order reversed. ries, that is all that can be required of Opinion by Mullen, P. J. him. He may take the ostensible boundaries and the indications where those DAMAGES. CONTRACT OF SERboundaries are."

VICE. He also charged “ that plaintiff was not SUPREME COURT OF ILLINOIS. bound to know where the legal boundary

Frederick N. Hamlin v. Albert S. Race. lines of the alley were; that a person is Decided January 21, 1876. liable for an accident caused by an exca- When an employee under a contract for vation upon his own land, so situated that payment of money by installments a person using the highway, and using or for a term of service is discharged dinary caution, falls into the excavation, 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 con

at the time the suit was instituted. tinued, had he been unable to procure 11, when discharged, he rescinds the employment during the time. contract, and then sues for its breach,

The judgment of the court below is reit may be that he can recover for all the damages he sustained during the versed and the cause remanded. term by the breach, if the trial was

Judgment reversed. had after the expiration of the term. Opinion by Walker, J. A pellee was employed on the first of

MANDAMUS. of January, 1873, by Hamlin, Hale & Co., as a salesman in their store for one year, N. Y. SUPREME COURT, GENERAL TERYat a salary of $1,020, in monthly install

FIRST DEPARTMENT. ments of $85. They, on the 23d of June The People, ex rel. George W. Carleton, following , dismissed him from their ser- respt., v. The Board of Assessors of the vice, when they offered to pay him the City of New York, applts. amount that was due him to that date,

Decided March 7, 1876. which he declined to receive, and on the

A peremptory writ of mandamus, un6th of the following August brought this

der Chap. 697, Laws of 1867, to suit, to recover the balance for the full

compel Board of Assessors of N. year, and on a trial in the court below re

Y. City to assess damage to property, covered the full amount.

caused by closing street, is proper The declaration was in assumpsit, and upon their refusal to act. contains a special count, with usual Denial of knowledge or information common counts. The plea of the general

sufficient to form a belief, in answerissue was filed.

ing affidavit, is insufficient to put in

issue positive allegations in the afiHeld, 1. That no rule was better estab

davit of applicant for writ. lished or more inflexible than that a plain. A presumptive right to the writ is all tiff cannot recover for money not due at that is necessary to be shown to secure the institution of the suit; that a party success of applicant in such case: cannot do indirectly what he cannot Appeal from an order directing the isdo directly, and that therefore the plaintiff suing of a writ of peremptory mandamus. could not recover any more than what was The writ commanded the defendants and actually due when his action was com- appellants to meet as a Board of Assesmenced ; to permit a recovery for sums sors of the City of New York, and to esti. falling due after suit would be an evasion mate the damages done the premises of of the rule.

lands of the relator, George W. Carleton, 2. Had appellee when discharged, termi- by reason of the closing of the Bloomingnated the agreement, and then sued on dale road, betweed 82d and 1030 Streets, the breach of the contract, it may be that in the City of New York, by the Commisa different rule might have prevailed. sioners of the Central Park, under and Then the cause of action would have been pursuant to Chapter 697 of the laws of the breach, and it would have been 1867, &c. 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 ingdale Road, upon which the appli- by the Board of Assessors. cant claimed that he owned property A presumptive case was enough to sewhich was injured by the action of the cure the success of his application for the Commissioners in closing that road. writ. Relator was entitled to have the

In the affidavit employed by the rela- claim made by him heard by the Board tor in his application for the writ, he swore when it was applied for. positively to his title to the property; that

Order made should be affirmed with the Bloomingdale Road, so far as it af- $10 costs, besides disbursements. fected the applicant's premises, was closed

STOCKHOLDER. CORPORATION. by the Central Park Commissioners, and that the closing of the road had depreci

N. Y. COURT OF APPEALS. ated the value of the relator's premises. The Cayuga Lake R. R. Co., respt. v.

It appeared in such affidavit, also, that Kyle, applt. the Bloomingdale Road was a public road Decided February 8th, 1876. laid out on the official maps of the City of It is no defense to an action to recover New York.

an unpaid subscription, that there The answering affidavit alleged merely was a defect in the organization of that the deponent, one of the assessors,

the company, where there is a de had no knowledge or information suffi

facto corporation from which de

fendant may receive his stock. cient 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

proposed railroad was described as inthat such damages shall be ascertained and paid in the manner specified by laws tended to be constructed from the N. Y.

C. R. R. to Ithaca, the length of said railof 1852, 47, Secs. 3, 4.

road to be thirty-seven miles. The artiJas. A. Deering for respt.

cles were duly acknowledged and filed, J. A. Beal for applt.

and the company was, in fact, organized Held, That the statement in the an- under them, officers elected and the railswering affidavit of defendants and appel- road constructed and put in operation, lants, that they had no knowledge or in- and calls were made upon the subscribers formation sufficient to form a belief as to for payment of their subscriptions, and the truth of the various positive allega- the corporate existence of the company tions in the relator's affidavit, cannot be was recognized by chapter 314, laws of said to weaken the force of such positive 1869. Defendant claimed that the articles averments, or put the facts alleged to issue. of association were defective in not defi

That the recognition of the road by the nitely stating the termini of the road, or various acts of the Legislature, was suffi- the counties through which it passed, as cient, accompanied with the allegations provided by chapter 140, laws of 1850. that said Bloomingdale Road was a pub Cox & Avery, for respt. lic road laid out in the City of New York, W. E. Hughitt, for applt.

That it was not necessary, to entitle the Held, That the failure to comply literapplicant to a hearing, that it should be ally with the provisions of the statute as conclusively shown in the first instance, to the description of the location of the

property, would not prevent a recovery;

The court below refused to grant the that defendant was entitled to the shares divorce. Libellant appealed. for which he subscribed; that by the acts There is nothing in the evidence in this of his associates in going on, locating and case to bring the conduct of Mrs. Harris constructing the road, and by the legisla- toward her husband within the act of tive recognition of its corporate existence, 1854, as a ground of divorce, that is to these shares became shares in a corporation say, when a wife shall have, by cruel and de facto, notwithstanding the defect in barbarous treatment, rendered the condithe criginal articles; that defendant tion of her husband intolerable, or his had received all he had contracted for life burdensonie. and should not be relieved from paying No such cruel and barbarous treatment for his shares. 26 N. Y., 25.

was shown in this case. If by other Judgment of General Term, affirming means a wife makes her husband's life judgment for plaintiff, affirmed.

burdensome or intolerable, as by obstiOpinion by Rapallo, J.

nate silence, laziness, or wilful neglect of

household duties, they do not fall within DIVORCE.

the meaning of the act of 1854. SUPREME Court of PennsylvaNIA. | Decree affirmed, with costs, and appeal

Gilbert T. Harris, applt., v. Elizabeth dismissed.
Harris, respt.

Per curiam opinion.
Decided Feb. 7, 1876.
Obstinate silence, laziness, or wilful

DEFAULT. PRACTICE. LACHES neglect of household duties on the part of a wife, do not constitute PHILADELPHIA COMMON PLEAS. cruel and barbarous treatment as a

Phipps v. Cresson. ground for divorce within the mean

Decided February 19, 1876. ing of the act of May 8, 1854.

When more than three years have Appeal from Common Pleas of Phila

elapsed since the commencement of a delphia county.

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 re

Motion for judgment for want of an port of an examiner. The testimony was to the effect that the witnesses believed appearance and affidavit of defense. that libellant could not live with respon

Held, We will not give judgment upon dent without endangering his health and a mere motion on so stale a claim, 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.

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