It was agreed by the counsel for the The grade of said street was established plaintiff and defendants in the court be- in 1853, and said grade was changed and low, that the motion to quash should be a new grade there for established in 1867. set down for hearing upon a statement of After said change of grade, and after May facts, substantially the same as those em- 31st, 1872, said street was regulated and bodied in the plea, and which we deem it, graded in conformity with such new therefore, unnecessary to recite.

grade, the expense of so regulating and Whereupon the court, on the 22d of grading said street was assessed by the May, 1875, ordered that the attachment Board of Assessors upon the property be quashed, from which order the plaintift benefited thereby; and the damage to the appealed.

land of the relator by reason of the change Held, That the composition proceedings or alteration of the grade of said street, extinguished plaintiff's debt, and that the and the regulating and grading thereof attachment must fall to the ground.

according to said new grade, assessed at Order affirmed.

$1,888. Opinion by Bowie, J.

The assessment lists, including and containing said award or assessment of

damages, were transmitted to the Board MANDAMUS.

of Revision and Correction of AssessN. Y. SUPREME COURT-GENERAL TEIM. ments, February 11th, 1874; and on FIRST DEPARTMENT.

March 26th, 1874, said assessment lists The People, &c., ex rel., Ferdinand were returned by said Board of Revision Kurzman, applt . v. Andrew H. Green and Board of Assessors, with directions to

and Correction of Assessments to the others, composing the Bureau of Re

them “ to omit the assessments for and vision and Correction of Assessments, and awards of damage by reason of change of the Board of Assessors of the City of New grade,” for the alleged reason that the York.

Board of Assessors had no power to inDecided March 6, 1876.

clude the sums awarded to the relator Jurisiliction of Central Park Com- and others in said assessment lists, or to missioners.

make the said award. The owner of land at the time the

The relator asks for a writ of manchange of grade is in fact completed damus compelling the Board of Revision is the person who is damaged, and is

and Correction of Assessments to receive the entitled to the award for

person damages done to property by a and enter the title of the assessment list change of grade.

for regulating and grading 123d street Appeal from order of Special Term de- from Mount Morris Square to Eighth nying mandamus.

Avenue, in the City of New York, as duly The relator is the owner of a house and confirmed, as of the 15th March, 1874. lot of land on the northerly side of 123d Aud that the Board of Assessors retain street, New York City, between 6th and without amendment or alteration the 7th Avenues. The building upon said awards made to this relator for damages lot of land was erected after the grade of done by reason of the change of grade of said street was established in 1953, and in said street, and that the amount allowed conformity with such established grade to this relator for damages be included and before the change of grade in 1867.

and allowed in and by said assessment list. The said house and lot of land were The following questions were raised by purchased by the relator in May, 1872. the appeal:


1. Whether the Commissioners of Cen- On an indictment charging a felony, tral Park had jurisdiction to alter the the jury may acquit of the felony, grade of 123d street at the point where and convict of the constituent mis

demeanor. the appellant's dwelling house had been erected.

Error to the Quarter Sessions of 2d. Whether the appellant is entitled Alleghany Co. to damage, he not being the owner of the The defendants were indicted on property at the time the change of grade single count for a feloneous assault. Plea was determin.d upon by the Park Com- non cul. et de hoc; similiter and issue. missioners.'

Verdict, “guilty of an assault.” Kurzman & Yeaman for applt.

A motion in arrest of judgment, on the Hugh L. Cole for respts.

ground that the indictment for a felony Helil, We think the Commissioners of

did not warrant a conviction for misdeCentral Park had full jurisdiction to alter meanor, having been overruled, the dethe grade of 123d street at the point fendant took this writ of error, assigning where the appellant's dwelling house had for error the overruling of the motion and been erected, and that the provisions of the entry of judgment on the verdict.

Held, That the common law rule that section 3, chap. 52 of the laws of 1852, in respect to the estimate of loss and upon an indictment for a felony, there damage sustained by reason of such

can be no conviction for a misdemeanor change of grade are applicable to this case. no longer exists in Pennsylvania. That the time within which the Board

Judgment affirmed. of Revision had to act had expired.

Opinion by Paxon, J. That the owner of the property in 1967, when the new grade was established, is

JURISDICTION. not the person entitled to the award, as

U. S. SUPREME COURT. the change of grade had not been com

Magdalena A. Zeller, et al., p?ffs. in pleted. It is impracticable, we think, properly to ascertain and determine such error, v. Edgar A. Switzer, defts. in damage, until the change in the grade be in fact completed. And it seems to us

Decided January, 1876. quite apparent that no damage within the To give this court jurisdiction to recontemplation of the law is done until

view the decision of a State Court, that event occurs; and that if the action the judgment of the latter must be of the Park Commissioners had never final. been carried into effect by an actual In error to the Supreme Court of the change, it is clear there would have been State of Louisiana. no loss or damage sustained.

This action was brought upon a bond The orler below should be reversed, and given to release the steamboat Frolic from the writ of mandamus granted.

Opinion by Daris, P. J.; Daniels and a provisional seizure. The defendants Brady, J. J., concurring.

answered the petition November 25, 1870, setting up several defenses, and,

Dec. 5, 1870, filed a peremptory excepINDICTMENT. FELONY. MISDE

tion. The court below upon hearing susMEANORS.

tained this exception, and gave judgment SUPREME COURT OF PENNSYLVANIA. in favor of the defendants. The defenses Hunter et al, v. The Commonwealth. set up in the answer were not passed Decided November 15, 1875.



From this judgment an appeal was quantity of dry weeds and rubbish which taken to the Supreme Court, where a had been pulled up and deposited the prejudgment was entered as follows: vious autumn by the company's workmen

“On appeal from the second judicial on the roadway between the track and the court, parish of Jefferson, it is ordered and plaintiff's fence. The fire thus reaching adjudged that the judgment of the lower the fence destroyed a few panels thereof, court be set aside; that the exception be and thence, impelled by a strong wind, overruled; that the case be remanded to burned across two dry grass fields to anbe proceeded with according to law, and other fence, which communicated the fire that the appellee pay costs of appeal.” to a tract of woodland inclosed by it. The

To reverse this judgment the present distance between the railroad and the adwrit of error has been prosecuted, and a joining fence was five or six feet, and from motion is now made to dismiss the writ the railroad to the woodland six hundred because the judgment is not final.

leet. Held, The judgment was not final. There was also evidence for the plainThe State Supreme Court having merely tiff that this engine, about a mile west of reversed the judgment, the inferior court this farm, was on that day throwing out must now proceed further.

an unusual number of sparks, and was Writ dismissed.

kindling fires along the roadside at every

hundred yards. On the other hand, the Opinion by Waite, C. J.

defendants proved that the engine was

provided with a spark-arrester as good as NEGLIGENCE. REMOTE AND any then in use, and called two stack inPROXIMATE CAUSE.

spectors, who testified that the engine on SUPREME Court of PENNSYLVANIA. arrived at Harrisburg with its spark-ar

that day started from Philadelphia and Pennsylvania Railroad Company, v. rester in perfect order. The defendants, Hope.

in three distinct points, asked the court Decided February 7, 1876.

to charge that there was no sufficient eviIn an action against a railroad for dence of negligence on their part as to

negligently firing plaintiff's wood- either the rubbish vr the roadway or the land, whether or not the injury was condition of the engine; and, in their the direct natural consequence of de- last point, asked the court to instruct the fendant's negligence, is a question for the jury.

jury as matter of law, thatError to the Common Pleas of Chester and the fire thereby caused upon the line

“The sparks emitted from the engine county.

of the defendant's roadway, were not the Case, ex delicto, by Hope against the Pennsylvania Railroad Company for dam- proximate cause of the burning of the

fence between the pasture land and the ages caused by the negligent firing of his

woodland, or of the woodland itself, both property by the defendants. Plea, “Not

the fence and the woodland being at least guilty.”

six hundred feet distant from the place The facts were these: The plaintiff was

where the fire originated.” the owner of a farm through which the

The court below declined to affirm these railroad passed east and west. On the morning of March 18, 1873, immediately er the burning of the woodland, an 1 of the

points, and left it to the jury to say whethafter the mail train had passed west, fire fence inclosing it, was the direct natural was discovered at the end of a cross tie of consequence of the defendant's neglithe track; thence it spread to a small gence.

Verdict and judgment for the plaintiff rods long, being the easterly end of a farm for the full amount claimed, to which the known as the “Cross-lot," with damages defendants took this writ of error, assign- for withholding the same. Plaintiffs ing for error the answers to their points claimed that the easterly boundary of and the charge of the court.

their farm is a fence which was erected in Held, That the question of the proximi- 1812 by one T., who was then in possesty of the injury to the original cause was sion, and that he cultivated the land up a question of facts peculiarly for the jury. to the fence. The evidence showed that

How near or remote each fact is to its the fence was erected to protect a crop of next succeeding fact, in the concatenation wheat which T. had planted upon the of circumstances from the prime cause to land in controversy, and that this land the end of the chain of facts, which is im- continued until in 1866 in the actual posmediately linked to the injury, necessarily session of T. and his grantees as part of must be determined by the jury. These the Cross-lot farm, and that for upwards facts or circumstances constitute the case of fifty years the adjoining owner had and depend upon the evidence. The jury occupied up to the fence. In 1820 the must determine, therefore, whether the fee of the farm was conveyed to T. by a facts constitute a continuous succession deed which described it as then in the of events so linked together that they be possession of T., and stated the eastcome a natural whole, or whether the erly boundary to be “the east line of the chain of events is so broken, that they be- Montressor Patent, as the same ought to come independent, and the final cause can be established.” It was also proved on not be said to be the natural and probable the part of the plaintiff's that in 1814 one consequence of the primary cause, the v. 0. owned the Cross-lot farm and lived negligence of the defendants. Per curiam opinion.

on it, and one B. owned the farm now belonging to defendant, and was in posses

sion of it seven years. That each agreed EJECTMENT. EVIDENCE.

to keep one-half of the fence in repair and N. Y. COURT OF APPEALS.

did so. In 1866 defendant tore down the

old fence and erected a new one to the Jones et al. applts. v. Smith, respt.

westward of it, on what he claims to be Decided February 22, 1876.

the true line of the Montressor Patent, In an action of ejectment, evidence cutting off the land in dispute. Defend

tending to show an acquiescence in ant proved that the new fence was on the and practical location of a boundary true easterly line of the Montressor Patline for more than twenty years is admissible, although such line is not ent. Plaintiffs contended that the dithe true line described in plaintiffs' vision line had been established by pracgrant.

tical location, and the old fence must be A witness being interrogated as to a regarded as such line, whether on the true conversation with B., and B. being line of the patent or not. The complaint called, testified to a particular con- was dismissed on the ground that as the versation with witness, the witness deeds under which the plaintiffs derived can be recalled to deny specifically title, declared the easterly line of the farm the alleged conversation testified to by B.

to be the easterly line of the Montressor This was an action of ejectment brought lished.” This was an admission that the

patent, the same

as “be estabthe ancestor and intestate of the plain- line was not established, and by implicatiffs, in his lifetime, to recover a strip of tion, that the fence was not on the true land about twenty rods wide by seventy line.

R. L. Hand for applt.

Error to Common Pleas of Union counRobert S. Hale for respt.

ty. Heli, error; that the evidence of acqui Assumpsit by Shriner on a note drawn escence in the fence as a boundary line May 11, 1871, at three months, by the should have been submitted to the jury; firm of Young & Worth to the order of that the jury might have found from the G. W. Minsker, and by him endorsed to evidence a practical location of a line be- R. T. Barber for value before maturity. tween the two farms, and a possession of Barber was one of the firın of Young & more than twenty years in pursuance of Worth, which firm became insolvent besuch location.

fore the maturity of the note, and was On the trial V. 0. was interrogated as dissolved; a bill for an account was filed to conversations with one B., and denied and a receiver appointed. The note was that B. had ever claimed that the fence not paid at maturity, and was duly proteswas not on the true line. B. was after-ted. In May, 1873, Barber endorsed it wards called and testified to a particular to Shriner, who brought suit on it in the conversation with V. O. as to whether the court below. It did not appear that Barfence was a division fence. V. 0. was ber was personally insolvent. The note then recalled by plaintiffs, and they had been discounted by Barber out of his offered to disprove by him the alleged con- own funds, and there was no evidence that versation with B., and to contradict B. in Shriner knew that Barber was a member that respect. Defendant objected on the of the firm. ground that V. O. had been fully exam Upon the trial the plaintiff, after proof ined. The objection was sustained and of the note, offered it in evidence; the exception taken. Defendant urged that defendants objected on the ground that the effect of the acts of acquiescence Shriner, being an endorsee after maturity, proved was destroyed by this evidence of could not sue on it in his own name. ObB.

jection overruled, and note admitted. Held, That the court in excluding the The defendants offered to prove that re-examination of V. 0. must have as- Barber was a member of the firm of Young sumed that such evidence had been in sub- & Worth, and that the partnership had stance denied by V. O., otherwise the re- become insolvent, and had been dissolved fusal was error, and if denied it was a question for the jury.

before the maturity of the note, which Judgment of General Term reversed, offer was refused. and new trial ordered.

ļi Verdict for the plaintiff and judgment Opinion by Rapallo, J.

thereon, to which defendants took the

writ, assigning for error the admission of NEGOTIABLE PAPER. the note in evidence, and the rejection of SUPREME COURT OF PENNSYLVANIA.

defendant's offer. Young & Worth v. Shriner.

Held, The note is admitted to have Decided February 7, 1876.

been good in the hands of Minsker, the

payee, and was taken from him by Barber It is not competent for the maker of a for a full consideration paid out of his indipromissory note" to set up, as a de- vidual funds. Though Shriner took the value after maturity, any equities note after it was overdue and protested, it existing between the maker and an in- was without notice that Barber was a parttermediate endorsee. not connected ner of Young & Worth. There was nowith the transaction between the orig- thing to put him on his guard, and no inal parties.

want of consideration or of equity to af

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