But held that with reference to the evlence was admitted, under objection and exception by the defendant, that the plain-dence that the plaintiff tendered his fare tiff, after the second expulsion, offered to and was refused admission to the train pay his fare and was refused admittance that was improper. If a refractory passto the train. Also, under exception, the enger is put out of the car, and by refrac following conversation between the ticket tory is meant any one refusing to comply agent and plaintiff was admitted; with the rules the company can lawfully make, he cannot demand, as matter of right, even upon complying with the rule violated, to be taken back again eo instante, unless he is put off at a regular stopping station, and unless at least he then and there obtains a ticket or tenders his fare. He cannot, as suggested, get himself ejected from a train, offer to pay his fare, and recover damages for being refused admission to the train. Being unable to say on which theory the jury determined the plaintiff entitled to success, the judgment must be reversed.

I said to this agent: "I want to buy a ticket an excursion ticket-to Southampton, from New York to Southampton and back again." He said it would be $3 50. I said: "How long does this ticket run?" He said "Thursday." Thursday." I said that will just suit me because I want to come back on the 7th. He said to me, "Well, I don't know about that; I think the ticket expires on Monday." said I, "Oh, no. On Sunday you do not run any trains, and Monday will be one day as I am going on Saturday afternoon; Tuesday will be two days and Wednesday three days." He said: "shall I give you a ticket." I said "Yes."

The judge in his charge to the jury left it with them to say whether the ticket agent did anything which induced plaintiff to alter his position and to buy the ticket, believing that it would be good till the 7th. The 5th of August was on Monday.

E. P. Wheeler for respt.
A J. Vanderpoel for applts.

Held, The learned justice was right in declaring that the ticket was not conclu-, sive of the plaintiff's rights. It was only a token or voucher adopted for convenience to show that the passenger had paid his fare from and to the points named. The plaintiff had the right therefore to show that in a conversation before his purchase from the defendants' agent, he was induced to believe that he could use the ticket on the day when he attempted to do so and was ejected. The question as to what the contract really was as to his transportation was one, therefore, to be determined by the facts disclosed. The statements of the ticket agent were bind. ing on them.

Opinion by Brady, J.; Davis, P. J., concurs in result, but holds that there was no agreement to be submitted to the jury between the agent and plaintiff; Daniels, J., concurs in the opinion, with modifica tion of Davis, P. J.


N. Y. COURT OT APPEALS. Lancey, applt. v. Clark, respt. Decided February 15, 1876. Where a bank holding negotiable paper receives the money on it, on the day of its maturity, from a party to it who takes it up without informing the bank of his purpose, and transfers it to a third party, the latter takes it subject to all equities existing between the maker and the party taking it up.

This action was brought upon a promissory note made by defendant for the ac

commodation of the firm of Lambert &

Lincoln, who had it discounted and received the proceeds. Before the note be come due the firm was dissolved, and Lincoln was to close up its business. Plaintiff resided in Canada, and Lincoln wrote and requested him to take the note

sory note is induced to sign it by fraud, yet in so signing acts negli gently, he is liable thereon to a bona fide holder for value.

and furnish the money to take it up. He sent the money a few days before the note became due to Lincoln, who put it in the bank to his individual credit. On the day the note become due Lincoln went to the

This action was, at the September term, 1874, committed to a referee, who, at this term, reported the following facts:

bank and by his individual check paid the note to the discount clerk, who knew it was an accommodation note, without assuming to act as agent for, or asking to have the note transferred to any one, and did not mention plaintiff's name. He asked to have the note protested so that he could hold the endorser and maker, but did not state why he wished to hold

This is an action of assumpsit upon a promissory note, of which the following is a copy; "Tilton, N. H., January 1st, 1872,. Nine months after date, I promise to pay, to the order of R. M. Grems, one hundred and forty dollars, at my residence in Tilton, N. H., value received and int. Due Oct. 4, 72. LORENZO SMITH." On the back of said note is the following: "Without recourse. R. M. Grems." "Demand and notice waived. Leonard Gerrish." The plaintiffs purchased the note, a short time after its date, in good faith, without notice of any defect. The signa

He afterwards sent the note to

them plaintiff.

Thos. H. Hubbard, for applt.
C. F. Brown, for respt.

Held, That there was no sale by the bank of the note to plaintiff; that the bank could not be made a seller without ture is genuine, but the note is wholly its knowledge or consent; that by a sale without consideration. The defendant of the note the bank would have impliedly did not contract to give any note, nor warranted that the paper was genuine and know or have any suspicion that it was all it purported to be on its face, and it a note he was signing, but was fraudulencould not be drawn into this implied war-ly induced by the payee to sign it under ranty without its consent. (32 N. H., 238; the pretence that it was an agreement to 20 N. Y., 226; 4 Duer. 79; 5 R. I., 218; become agent of a patent haj-fork, and 2 Parson on bills and notes, 2d ed., 37.) upon the representation by the payee that That there was no transfer of the note by the defendant was to incur no pecuniary the bank, and plaintiff's title was derived liability. It was a negligent act on the from Lincoln and cannot be inforced part of the defendant to sign the note against the defendant, as the note was without ascertaining whether it was what taken subject to any defense defendant the payee represented, or something else. could have made if sued by Lincoln, and [At the request of the defendant, I add the note having been made for the accom- the following: The defendant is an old modation of the firm of which he was a man, of limited education and poor eyemember he was bound as to the maker to sight, and is not in the habit of writing pay it. judg-except to sign his name. To this, at the request of the plaintiffs I add the following: His daughter, an intelligent woman, was present when the note was signed, and had an opportunity to read it.] A few days after the note fell due, the defendant, having learned that the plaintiffs had it, called at the bank and examined it, and gave notice to the cashier that he should not pay it. There was no proof

Order of General Term, reversing ment in favor of plaintiff, affirmed. Opinion by Earl, J.

Citizens' National Bank v. Smith.
Decided August 12, 1875.

If the maker of a negotiable promis- that payment of the note was ever de

manded at the defendant's house. The defendant's counsel, on the day after the hearing closed, took the position, in a letter to the referee, that the action cannot be maintained for want of a demand at

This action was brought on a promis

the defendant's house. The referee ruled, pro forma, that the plaintiffs are entitled to recover, and finds that the defendant did promise, in manner and form as the plain-sory note. Defendant was a member of tiffs have declared, and assesses the dam- the firm of L. O. Wilson & Co., who obages in the sum of one hundred and forty tained from their creditors a composition dollars, and interest from January 1, 1872; deed, the creditors agreeing to take twenbut if the court shall be of opinion that ty per cent. to be paid by or before Jan. upon the foregoing facts the plaintiffs are 1st, 1862. Plaintiff's firm signed this not entitled to recover, then the referee agreement, and on Dec. 20, 1861, received finds that the defendant did not promise the twenty per cent. The note in this in manner and form as the plaintiffs have action bears date August 1st, 1861. The declared. date of entry of the note among plaintiff's bills receivable, is Dec. 21st, 1851. Defendant alleged, that the note was given as an inducement for signing said deed, in fraud of other creditors. He fails to establish this on the trial, but was allowed, without objection, to testify that upon the delivery of said note, no consideration was paid therefor.

The questions arising on the foregoing report were transferred to this court for determination by Rand, J.

defence fails to to establish it but is al lowed, without objection, to prove, uncontradicted another, viz.: want of consideration, it is error to refuse to direct a verdict for the defendant. Appeal from judgment entered on'verdict of a jury.

Held, That the defendant would not be liable ordinarily, as his signature was obtained by fraud, but that the finding that he acted negligently in signing estopped him from denying, as against an innocent holder, the usual legal effect of his signature to a negotiable instrument, and brought the case within the principle that "where one of two innocent parties must suffer by the acts of a third, he who has enabled the third person to occasion the

loss," must suffer it.

Held, If the note was given for transactions with L. O. Wilson & Co., prior to the payment of the twenty per cent., it ceased to have any validity after such payment, and there is no testimony tending to prove any transaction with them. thereafter. A subsequent promise to pay

Opinions by Cushing, C. J.; and Ladd such a note would be no more binding and Smith, J. J.

than the note itself, which was without consideration. The specific defense set up was not established, but the failure of consideration was, and cannot be disregarded.



John M. Slade, Survivor, &c. respt. vs.
Lewis O. Wilson, applt.

Decided January 28, 1876.

A note given to obtain the signature of a creditor to a composition deed, the amount of which is in excess of the amount paid other creditors, is void. When a defendant, setting up such a

The Court erred in not directing a verdict for the defendant on the ground of failure of consideration.

Judgment reversed and a new trial ordered, costs to abide the event.

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


B of Mitchell & Co. under notice for their production by defendant's counsel. The account of Betsey Mitchell was received Betsey Mitchell, Respt, v. Martin in evidence by consent of defendant's atY. Bunn, Applt. torney. The ledgers refer to other books. from which the accounts were apparently made up. Under date of Arpil 1st, the date of the note in suit, Mrs. Mitchell is

Decided Mar. 7th, 1876.

debited "To note for balance $577.56," the

amount of the note in suit. Under date of January 23d and February 19th, 1866, appeared credits for $300 and $100, which

Books produced on notice by opposing
counsel are competent as evidence.
Where one of a set of books, containing
entries in brief and referring to oth-
er books for a fuller explanation, is
received in evidence, it is competent
to refer to the entries in such other plaintiff testified were proceeds from sale
books referred to, and such entries of her property, received by her husband.
are competent evidence.
Defendant offered to show by the books of
Where the books of defendant's firm, in the firm and by his own testimony that no
which is an item debiting plaintiff such money was received by the firm.
with the note in suit, is introduced Defendant's counsel had offered in evi-
in evidence to charge defendant with
dence so much of the day books as re-
personal knowledge of its issue, it is
competent for him to testify that he ferred to Mrs. M.'s account. The evidence
had no such knowledge at the time, or and the books were excluded.
until long afterwards.

Ten Broeck & Van Orden for applt.
Edwards & Odell for respt.

Appeal from judgment entered on report of referee in favor of plaintiff.

Held, error: The day books, so far as they relate to those items, should have been received in evidence. The ledgers, having been produced on notice, were competent, and it was competent to go back to the day books to explain the items in the ledger.

Plaintiff's husband and the defendant were co-partners in trade, doing business under the firm name of Mitchell & Co. This action is brought on a promissory note given by plaintiff's husband, at the time this action was brought, deceased, to plaintiff for money alleged to have belonged to plaintiff and used in the business of said firm. The answer denied up-cluded. on information and belief that Mitchell & Co made the note, and alleged that if the note was made, it was made by Mitchell for his individual indebtedness; also denied that Mitchell & Co. ever received any consideration therefor, and denied that defendant was in any way liable thereon, and by an amendment of the answer set up a counter-claim. Plaintiff was called as a witness by defendant, and on cross-examination gave evidence tending to show that she had a separate estate, consisting of moneys left her by her father, which moneys had been placed to her credit in the firm of Mitchell & Co. Plaintiff's counsel produced ledgers A &

Defendant was also asked, "When was the existence of this note first brought to your attention ?" The answer was ex

tent to rebut, so far as it might go, the Held, error. The evidence was compeimplication of knowledge presumed to be denied from the contents of the ledger.

Judgment reversed and new trial granted, costs to abide the event.

and Daniels, J., concur.
Opinion by Davis, P. J.: Brady, J.:


Greere v. Deal et al.

Decided February 15th, 1876.
Where simultaneous purse money
mortgages are given, but recorded at

different times, an assignee of the first recorded mortgage, without notice of the mortgages being equal liens, acquires no priority over those subsequently recorded.

This was a controversy between defendants D. & W. as to surplus money arising from a sale on the foreclosure of plaintiff's mortgage. It appear d that D. & G. were the owners of the land sold subject to plaintiff's mortgage; that they conveyed the same to B., and each received from him a purchase money mortgage for the same amount, with the understanding that they were to be equal liens upon the real estate. G.'s mortgage was recorded first. After D.'s mortgage had been recorded, G. assigned his mortgage to E. P. G. This assignment was recorded. E. P. G. afterwards assigned it to W. The referee held that W. was a bona fide holder for value, and that the mortgage held N. Y. SUPREME COURT, GENERAL TERM,




by him by virtue of its priority upon the record had priority over D.'s mortgage, and that the surplus money should be applied thereon.

Z. S. Westbrook for applt.
Martin L. Stover for respt.

stating it was given for purchase money,
it showed it was given at the same time
with the G. mortgage, and that neither
could have a preference, but that the only
effect of the recording of an assignment
against a subsequent sale of the mortgage
of a mortgage is to protect the assignee
successive purchasers from the same sell-
itself, the recording act only applying to
ers, 42 N. Y., 334; and that, therefore,
D. and W. were entitled to share equally
in the surplus.

Order of General Term, affirming order
of Special Term, reversed, and that of
Special Term modified.
Opinion by Earl, J.

Held, That aside from the recording act W. took his mortgage subject to the equities between G. and D., and could claim no priority. 22 N. Y, 535; id. 61. That there was nothing to estop D. from asserting his rights, as he did noth ing to induce a purchase of the G. mortgage, and did not, by any act or omission, mislead W. or his assignor. Morse vs. M. Bk. 55 N. Y., 41. distinguished. That the recording act did not affect the rights of the parties (1 R. S., 756, Sec. 1), as that only applies to subsequent conveyances which are first recorded, and the G. mort gage was not a subsequent conveyance, but one executed at the same time; that if W., by virtue of his assignment, could be regarded as a subsequent purchase, the statute did not aid him, as D.'s mortgage was recorded before the assignment, and as that mortgage contained a clause,


Benedict, applt, v. Phelps, respt.
Decided January, 1876.

The Court can only order the exceptions
taken in a case to be heard in the first
instance at the General Term.

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Plaintiff claims to recover of defendants about 70 acres of land, and claims title under her husband's will.

Defendant disclaims title in himself, but alleges title in his wife Samantha, &c. Samantha claims title under an old agreement with her brother, Samuel B. Benedict, made in 1851, with possession for 20 years, as follows: In 1851 Samuel B. Benedict was the owner of the land in question, and proposed to sell and did sell to defendant, Samantha, the land for $227, in payments of $50 each, as he should call for them. Samantha was also to pay one Levi B., after the death of the mother of said Samantha the sum of $300,


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