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plaintiff was injured could have been sion, which, from all the circumstances of avoided by proper care and diligence the case, may have been entirely erroneis a question for the jury.

It was fair to presume that a very This action was brought to recover short time had elapsed before plaintiff was damages for injuries sustained by plaintiff struck, and that plaintiff could not have at a railroad crossing on defendant's road. turned and avoided the accident. The The plaintiff testified that at the time of time she remained between the tracks, and the injury she was in her seventeenth whether the accident could have been year, and was passing along the sidewalk avoided by the exercise of proper care and of Elk street, in the village of Dunkirk, diligence, should have been subunitted to north of defendants tracks, some five in the jury. number; that she had crossed two of

Order of General Term, granting mothem and looked both ways to see if a tion for a new trial, affirmed. train was approaching, and saw an ex

Opinion by Miller, J. press train coming west on the main track further south; that she stopped to let this train pass, standing within about one LIFE INSURANCE. RECISSION. foot of another track. She first stated OFFER OF JUDGMENT. that she remained standing between the

N. Y. COURT OF APPEALS. two tracks about ten minutes, but she af

Harris, applt., v. Equitable L. As. Soc. terwards said it was a shorter time, wait

of U. S., respt. ing for the express train to pass, and while thus waiting she was hit by the tender of

Decided February 15, 1876. an engine which had backed out and came A renewal of a life insurance policy,

which had been forfeited by non-payalong in an opposite direction from the

ment of premiums, procured by express train, at the rate of eight miles an

fraud, is void, and an offer of judg. hour; that this train sounded no whistle,

ment for the amount of the money rung no bell, and gave none of the usual

received as premiums at the time of warnings of its approach. The evidence renewal, with interest and costs, afshowed that the rear of the express train ter suit brought, is a sufficient tender had just passed Elk street, when, at the to allow the company to disaffirm. same instant, the engine of the other This action was brought upon a policy train came the other way. It did not ap- of life insurance issued by the defendant, pear that plaintiff had any means of de- which provided that if any declaration in termining how long she stood between the the application upon which it was issued tracks. A witness on the part of the should prove false, then the policy should

plaintiff testified that she stood there about become null and void. The policy was a minute, and other evidence showed it forfeited by reason of a failure to pay the must have been a very short time. The premiums due in September and DecemCourt directed a non-suit, on the ground ber, 1869, and March, 1870. In Februathat plaintiff was guilty of contributory ry, 1870, the assured had a severe attack negligence.

of inflammatory rheumatism, which reA. P. Laning, for applt.

sulted in disease of the heart, and of which Murray & Pattison, for respt.

she died in April following. On March Held, error: That plaintiff's testimony 28, 1870, plaintiff went to defendants ofas to the length of time she stood between fice and tendered the premiums due and the tracks should not be considered as ab. asked to have the policy renewed, stating solutely accurate, conclusive and controll- that the assured was in good health, that ing, and was at most but a mere impres-she had not been sick since she was ex

amined for insurance, and signed a paper TAXATION. RAIL ROAD. CERwhich stated that she was as well as when

TIORARI. insured and in as good insurable condition N. Y. SUPREME COURT, GENERAL TERM. as when examined. Defendant accepted

FOURTH DEPT. the premiums tendered, and gave a re People ex rel Utica and Black R. R. ceipt continuing the policy in force. Af- R. Co., v. Shields et al.. ter the expiration of sixty days, defendant Decided January, 1876. having refused to pay the amount in- In a certiorari where the collection of sured, this action was commenced. Af

a tax in the hands of the City Treasterwards and before answering defendant urer is stayed, the Treasurer was a served an offer of judgment for the proper party. So also, all the assesamount of the premiums paid in March,

sors of the city. 1870, with interest and costs. This offer. The relators were liable to be taxed for was refused. The judge held that defend

personal property at actual value of

stock in same manner as other perant was bound, upon discovery of the

sonal property fraud, to return the premiums and to dis- Failure of relators to furnish the asaffirm the new contract, and never lav sessors with the statement required ing done so, it was liable upon the policy, by law, left it with the assessors to and directed a verdict for plaintiff, pass their judgment as to value of

property upon same basis as upon inA. R. Dyett, for applt.

dividual property. Geo. De F. Lord, for respt.

The relator is a Railroad Company in

this State, with their principal office and a Held, error: That plaintiff's fraudulent large amount of personal property in the representations avoided the policy; that Second Ward of the city of Utica. the offer to allow plaintiff to take julg

In the year 1875, the issessors of said ment for the amount of the premiums and city assessed said company, on its capital interest thereon was a substantial com- stock, as personal property in said Second pliance with the rule requiring a party Ward, the sum of $40,000, and entered seeking to disaffirm a contract on the same in the roll for that year under the ground of fraud, to return or offer to head of rolling stock. return all that he has received under the

The said Railroad Company did not contract within a reasonable time after furnish to the assessors the statement discovery of the fraud; is the offer had showing the real estate owned by them, been accepted, all parties would have been the amount of their capital stock and the restored to their former condition and eq

amount paid in and secured to be paid uity done between them, and this is all excepting sums paid for real estate as rethat is required. 50 N. Y., 670. That it quired by Sec. 2 of title 4, Chap. 13, vol.

3 of the R. S. was no answer to say that the offer of judgment, not having been accepted with

The officers of the company appeared in ten days, was to be deemed to have before the said assessors and asked to have been withdrawn, as it was plaintiff's fault said assessment stricken from the roll, on if he did not accept it.

the ground that the debts owing by the

company exceeded the true value of the Order of General Term, reversing judg. personal property of said company. The ment for plaintiff, affirmed.

officers of the Railroad Company did not Opinion by Miller. J.

give to the assessors any information as to the amount and value of its capital or the cost of its real estate, or any information from which the assessors could de


termine its surplus profits or reserved owned by said company. The statement funds, or the true amount of its capital was not sufficient. stock taxable as personal property.

Writ of certiorari dismissed. The assessors refused to strike off the

Opinion by Smith, J. assessment, and this certiorari brought.

JUDGMENT LIEN. PRIORITY. Held, That the certiorari was properly SUPREME COURT OF PENNSYLVANIA. brought against the assessors and city

In re Malone v. Clinton. treasurer. The tax roll had, by resolution

Decided January 6, 1876. of the Common Council, been placed in the hands of the city treasurer, and the A judgment creditor, whose judgment was writ stayed the collection of the tax.

a lien against his debtor's real estate,

prior to the latter's being declared an The collector was not a necessary pirty.

habitual drunkard, cannot be postponed That the assessors committed no error.

on a sale of the real estate in the payment

of his claim till after the costs of the esThat the Railroad Company was liable to

tate are paid. be assessed and taxed for personal property at the actual value of their capital stock No. 1, of Alleghany County.

Error to the Court of Common Pleas, and in the same manner as other personal

This is an appeal, by one Malone, from property. (People v. Assessors of Brook

a decree of the court, distributing the fund lyn, 39 N. Y., 81.)

raised by a sale of the real estate of Wm. That had the company furnished to the Clinton, an habitual drunkard. The sale assessors the statement showing the real was made by his committee on leave of the estate owned by them, the amount of its court. The appellant claims the money capital stock and amount paid in and se should be applied on a judgment in his cured to be paid in, excepting the sums favor, which is the prior lien on the land paid for real estate and other matters as sold. After the entry of the judgment, required by law it would have been the Clinton was, by inquisition, duly found to duty of the assessors to have adopted the be an habitual drunkard. It does not data or facts embrared in such statement


that the court then made any in making their assessment. That by order in regard to the payment of the reason of the failure of the company to costs attending the inquisition, as is made furnish such statement, the assessors had its duty by the second section of the Act no data to follow in making such assess- of 16th of April, 1849, Purdon's Digest, ment, and they were justified in forming 881, pl. 13. These costs appear to be untheir judgment upon the best information paid. There now appearing to be no in their possession.

personal estate out of which they can be That, although the affidavit presented paid, the auditor reported, and the court by the company to the assessors showing decreed, that they be paid out of the prothe indebtedness of the company may ceeds of the real estate. The fund is have been supposed to have been suffi- insufficient to pay the judgment of the cient, it was not and did not bind appellant. If these costs are thus paid it the assessors, and such company were

takes that amount from the appellant not entitled to have their debts de- which he would otherwise receive on his ducted from such assessment on any such judgment. All the assignments involve showing. The indebtedness they claimed the correctness of giving a preference to to deduct may have been for actual valua- the payment of these costs. ble property purchased and now held and Held, That the judgment creditor could

not be divested of his vested lien ; that Messi's. O'Conor, Carter & Peckham he had a prior claiin, which must be paid for plaintiffs. in preference to the costs.

Messrs. D. D. Field, Field, & Deyo, Decree reversed, and distribution or- and Edlelstein for defendant Tweed. dered accordingly. Opinion by Mercur, J.

Westbrook, J. Section 265 of the code

provides for a motion for a new trial before

judgment, and requires it to be heard in MOTION FOR NEW TRIAL. STAY OF the first instance, “At the Circuit or Special

PROCEEDINGS. ALLOWANCE. Term, except that when exceptions are N. Y. SUPREME COURT, CIRCUIT, PART taken, the judge trying the cause may, at Two.

the trial, direct them to be heard in the The People of the State of New York first instance at the General Term, and against William M. Tweed and others.

the judgment in the mean time suspend.

ed.” Its language is incompatible with Decided Mar. 21st, 1876.

a hearing at the General Term in the first The Special Term has no power to or instance, when a motion at Special Term

der a motion for a new trial, upon has been entertained and decided. There erceptions, to be heard in the first in- is

, it seems to me, an absolute want of stance at the General Term, after having entertained a motion for a Term in the first instance, when the Spe

power to send the motion to the General new trial, upon the judge's minutes ; and it makes no difference that the cial Term has passed upon the applicalatter motion was based upon question. And this has been expressly held. tions of fact; the code allows no (Hastings vs. McKinley, 3 Code Report

separation of the application. er 10; Morgan vs. Bruce 1 Code ReUpon a motion for a stay of proceedl- porter, new series, 364; Price vs. Keyes ings, without security, pending an 8 N. Y. Sup. Court, page 177.) appeal, the Court should be possessed of all the facts and circumstances There was, in this cause, a motion for relating to the appellant's means and a new trial under section 264 of the code property; in considering such an upon the judge's minutes, and that was application, the recovery had is pre- denied. It is true that such motion was sumed to be correct, and the posses- based only upon questions of fact, and sion thereof ought not to be jeopard- not upon exceptions; but it was none the ized by tieing appeilee's hands. The dificulty of the legal questions in- less a motion for a new trial. The 25th volved, the length of the trial, the la- section of the code allows no separation of bor of preparing for trial, the the application. The existence of excepamount of the verdict, the number of tions is necessary to the order which sends motions made in the course of the the motion to the General Term in the proceedings, are considered in de first instance, but the fact that they have termining whether a case is diffi- been taken does not authorize the Circuit cult or extraordinaryfor the pur- or Special Term to send them to the Genpose of ficing an allowance.

eral Term and retain the motion upon the Motion on the part of plaintiffs for an facts for its own disposal. On the conextra allowance, and on the part of the trary, when the order to hear at the Gendefendant, Tweed, that the motion for a eral Term is made, the Special Term new trial be heard in the first instance at loses its control of the cause, and when General Term, pursuant to section 265 of the Special Term hears and decides the the code, or for a stay of proceedings, pur- application, the power to send to the Gensuant to section 348 of the code.

eral Term in the first instance is gone.

This conclusion disposes of the motion cases, when a defence has been interfor a suspension of judgment upon a pure- posed, or in such cases where a trial has iy legal ground, without any considera- been had, and in actions or proceedings tion of the propriety of such action, which for the partition of real estate, the court will be presently considered in examining may also, in its discretion, make a further the second motion for a stay of proceed- allowance to any party, not exceedling five ings after judgment, pursuant to section per cent. upon the amount of the recovery 348 of the code, pending an appeal to the or claim, or subject matter involved.” General Term from the judgment and This action is conceded to be within the from the order denying the motion for a spirit and the letter of the statute. It new trial.

certainly is both difficult” and “extraIt is undoubtedly true that section 348 ordinary"--difficult, not only because of authorizes the Court or a judge thereof to the legal questions involved, but also on stay proceedings upon the appeal upon account of the very great labor and prepasuch terms as shall be just, but the exer- ration which the development of the facts cise of this discretion can only be intelli- upon the trial involved, and the length of gently exercised upon proof showing the time occupied with the trial itself; and condition of the defendant's property.extraordinary when considered with referWhilst it is true that I regard this cause ence to the character of the issues and the as presenting difficult and extraordinary amount of the verdict, and the number questions, worthy of review, yet I cannot, of motions argued previous to the trial, and do not, assume that errors have been in two of which were only finally determined fact committed, and that the r. covery is by the Court of Appeals. The preparawrong. On the contrary, moderate self- tion for trial must have occupied the time respect requires me to believe that the of counsel for months, and the employ. plaintiffs are entitled to the fruits of their ment and compensation of proper acrecovery, and that their possession thereof countants for a long time was also necesshould not be jeopardized by arbitrarily sary. The trial itself also consumed sevtieing their hands. If there is no property eral weeks, and from the number of counto be reached, the judgment and execu- sel employed, I do not think that an altion will do no harm ; if there is, and ex- lowance of one per cent. is unreasonable. ecution is necessary to recover it, then such execution should not be stayed, with- SALE. DELIVERY. POSSESSION. out security sufficient to preserve it.

REVENUE LAWS. When an appeal shall have been taken,

SUPREME COURT OF ILLINOIS. the Court, or a judge thereof, upon an application showing all the facts, will be

Straus et al. v. Minzesheimer. able to exercise an intelligent discretion,

Decided February, 1876. which, in the absence of such proof, it is Where the vendor of personal properimpossible for me to do.

ty, such as cigars, has done all in his There can, however, be no objection to power to complete its delivery to venthe time which the defendant needs to dee, and thereafter exercises no conmake a case. Ninety days is not unrea trol over and asserts no possession in sonable, but such time is not to operate

the property, the vendee's title is per

fect. as a stay of proceedings.

The relative rights of vendors and purThe application for an extra allowance

chasers of cigars are not affected by remains to be disposed of. This is founded

the act of Congress of July 20, 1868, upon section 309 of the Code, which pro

requiring the boxing and stamping vides : “ In difficult or extraordinary of cigars before salc, so as to invali.

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