of three hundred dollars, to be in any

NEGLIGENCE. event increased in amount, but for such N. Y. SUPREME Court, GENERAL TERM. period as the said party of the second

FIRST DEPARTMENT. part may continue in possession of the

Mack, applt., v. The Dry Dock & aforesaid demised premises, as a prompt East New York Railroad Company, paying reliable tenant, the amount of

respts. rent to be paid upon the aforesaid six

Decided March 6, 1876. teenth day of each and every month shall in no wise exceed the sum of If passenger is directed to front plut

form with his baggage by conductor twenty-five dollars, as aforesaid."

and remains there, believing himself Upon August the 30th, 1870, Hey to be so ordered by conductor, and is sub-let the premises to McGrath for the there injured, he is not chargeable term of one year, reserving to himself,

with contributory negligence. in a written lease, “store room for at And that is so, though there is room least ten compressed bales of cotton, or

in ide, and a notice posted conspi,

cuously forbidding riding on front woolen rags, or paper stock, in any por platform. tion of said building, and one office.”

Appeal from judgment recovered on On December 29th, 1871, Stone con

a non-suit ordered at Circuit. veyed the aforesaid premises to the sub

Plaintiff, who is a German, and who tenant McGrath; assigned to him also

had been in this country but a few days, his (Stone's) rights upon the original lease. On January 11th, 1872, a notice and who knew but little or nothing of to quit the premises was served mon into one of defendant's cars, having a

the English language, sought to enter Hey by McGrath ; and on December

large and heavy trunk with him. The 24, 1872, this action was instituted. The court instructed the jury that motions to take his trunk to the front

conductor directed him by signs and they should find for the plaintiff'; and,

platform, which he did, and underthe verdict and judgment having been standing that he must stay with it, regiven accordingly, the defendant sued mained standing there, though there ont this writ, and assigned for error the was plenty of room inside. The concharge of the court.

ductor allowed him to remain on the He'd, That the lease in this case front platform and there collected the was not for life, but at will, which, un- fare of him for himself and trunk; der our decisions, is a lease from year but did not in any way indicate to him to year. The plaintiff

, McGrath, hav- that his proper place was inside, or obing purchased the title of the para-ject to his remaining outside. Notices mount landlord, is invested with his were posted up inside of the car, at either rights, and could determine the lease end, forbidding passengers to ride upon just as the paramount landlord might. the platform. The car collided with There is nothing in his lease from Hey the pole of a truck, which was backed which would prevent the exercise of

up to the curb stone beside the track, this right.

and plaintiff's knee cap was dislocated Judgment affirmed.

thereby. Per Curiam opinion.

Plaintiff testified that the truck was standing so that the pole reached out

over the track, that the car was going as to the position of the pole of the rapidly and that the driver made no truck, should clearly have been left to effort to check it.

the determination of the jury. Defendant offered testimony to show Judgment reversed and new trial orthat the pole was parallel with the aered. track and out of the way, but that just Opinion by Daniels, j.; Davis, P. as the car came by the truck, the horses J., ard Brady, J., concurring. shied at some baskets, bringing the pole around too suddenly for the driver to

COSTS. avoid the collision.

New York SUPREME COURT, GENERAL Plaintiff was non-suited.

TERM, FIRST DEPARTMENT. Lewis Saunders for applt.

Geo. E. Phelan, et al., respts., v. H. John M. Scribner, for respt. W. Collender, applt. On appeal, Held, That it is not ne

Decided March 31, 1876. cessary to determine now, whether the If defendant counterclaims without provisions of the General Railroad Act serving offer to allow judgment for as to posting notices applies to street

the excess of claim over counterclaim,

plaintiff is not bound to enter judgcars, but whether it does or not, would

ment for such excess in order to avoid not relieve plaintiff from the imputa costs, but may test the counterclaim, tion of negligence if he heedlessly and and if he recover $50 is entitled to voluntarily rode upon the front plat- full costs, form. The combined assent of the Appeal from order of Special Term, plaintiff and defendant's conductor, denying motion to set aside plainwould not justify a violation of the re- tifts' costs, and to award costs to degulations as to riding inside. But the fendant. This action was brought to case is far different where he is sent recover the sum of $1250, due the against his will by the conductor to the plaintiff's by way of rent. Defendant front platform, by such acts and words admitted the claim, but set up a counas create the impression that he can terclaim for $1,084.65, which plaintiff's only ride there, although he may have, denied. in tac", misunderstood the conductor. The jury found for defendant the It has been decided that a passenger on amount of the counterclaim, and a verthe front platform is not carried at his dict was thereupon entered for plainown risk, if he be there without any tiff for $219.47, the excess of the fault of his own (38 N. Y., 131). amonnt claimed over the counterclaim.

In this case the conductor might Detendant presented to the clerk of the clearly have seen that his instructions court for taxation a bill of costs, claimwere misunderstood, since the passenger ing that as the only issue raised was as endeavored at the outset to enter the to the counterclaim, and that as to that car, until he was directed forward. The the jury found for him, therefore he conductor should have corrected his was entitled to costs. The clerk refused mistake, and since he had the charge to tax the bill, but taxed the costs for and control of the car, should have in- plaintiff. formed plaintiff that his proper place From the order of Special Term, dewas inside. The conflicting testimony | nying the motion to set aside plaintiff's'

costs and to allow the defendant's, this Parol lease, how it affects tenant from appeal is taken.

year to year. Geo. Stevenson for respt.

Tenant holding over; tenant sowed crop Michael Nolan for applt.

under an agreement; the landlord

afterwards sold ; tenant may reap. On appeal, Held, That costs can Notice. only be given as allowed by statute. This was an action of trover. The Code, by sec. 304, provides that if

In 1871 plaintiffs made a parol conthe plaintiff in an action for the re-tract with one T to lease of him his covery of money, recovers $50 or over farm of 120 acres for the term of two he is entitled to costs, and by sec. 305, years, from April, 1871, with the privithat defendant has costs whenever plain- lege of two crops of wheat at a yearly tiff is not entitled to them. The de- rental of $500. fendant may, however, under sec. 385, The crop of wheat for which this offer to allow judgment to be taken action was brought, was sowed in fall against him for a sum specified, and of 1872, the ground being prepared in costs, and if the plainiff does not accept September of that year. this, and gets no more favorable judg On the 1st June, 1872, T entered inment, he must pay defendant costs from to a written contract with the defendthe time of the offer.

ant, whereby he sold the said farm to If, however, the defendant interposes the defendant, T agreeing to give de a counterclaim, plaintiff may (sec. 246 fendant a warranty deed of farm, free of Code) enter judgment for the excess from incumbrance and possession thereof his claim over the counterclaim, but of, on April 1, 1873. T afterwards he is not bound to do so. He may con-executed the deed, and defendant in test the validity of the counterclaim April 1, 1873, went into possession. without incurring any penalty therefor, A few days after the contract of T but if with the counterclaim defendant and defendant was made, and before serves the above offer, plaintifl contests any preparations was made by plainthe counterclaim at the risk of costs. tiffs to sow the crop in fall of 1872, de

No offer was served in this case, and fendant served a notice on them forplaintiffs are entitled to costs. Order bidding sowing same, &c., &c. The affirmed.

defendant harvested the wheat. PlainOpinion by Braily J.; Davis, P. J., tiffs forbid it, and this action was and Daniels, J., concurring.

then brought for the value.

T swears that when he sold he talked LEASE. CROPS.

with defendant, that plaintiffs were still N. Y. SUPREME COURT, GENERAL TERM, to have some privileges. FOURTH DEPARTMENT.

There was a judgment for plaintiffs.

Jeremiah McGuire, for respt. Reeder, et al., re&pts., v. Sayre,

Spicer 6 Baker, for applt. applt.

Held. It may be assumed as settled Decided January, 1876.

law in this State, 1. That the provision The provision of law that an agreement not to be performed within one of the revised Statutes (2 R. S., 135, $ year is void, does not apply to con- 2, Sub. 1,) which avoids every agreetracts for leasing lands.

ment that by its terms is not to be


formed in one year, does not apply to subject to that right. For obvious reacontracts for the leasing of lands- sons it is immaterial to enquire whether (Young v. Duke, 1 Seld., 461: over- he had such notice when he entered inruling Crowell v. Crane, 7 Barb., 191,) to the executory contract for the purand 2nd, that a parol lease for more chase of the land. The right of the than one year, though void for the tenants was vested, and not a mere reterm by reason of another statute (2 R. vocable license, and the defendant acS., 125, SS 8-9), inures as a tenancy from quired by virtue of the contract no year to year, and that the oral lease greater interest than his vendor could regulates the term of the tenancy in all then sell. respects, except its duration. In this

We entertain no doubt that the judgcase the lease was valid only for one ment should be affirmed. year from April 1, 1871, yet the tenants Opinion by Gilbert, J.; Mullin, P. having actually entered under the lease, J., and Smith, concurring and having continued in the occupation of the demised premises after that

VERDICT BY COMPROMISE. time, with the assent of the lessor, a

RAILROAD REGULATIONS. valid tenancy for another year was

IMPROPER CONDUCT OF ATcreated (Schuyler v. Leggett, 2 Cow.,

TORNEY. 660; People vs. Rickert, 3 id., 226;

Lounsbury vs. Suydam, 31 N. Y., 514).
By the terms of the parol agreement in

The St. Louis & Southwestern Railthis case, the tenants became entitled to road Co. v. Myrtle. sow a crop of wheat in the fall of 1872, Decided March, 1876. and to reap it the following season. In an action to recover unliquidated They sowed the crop accordingly, and damages, the jury may resort to we are of opinion that they had a right

means to arrive at a verdict that are

not allowed in actions where the to reap it and carry it away. The

damages are liquidated. privilege of sowing the crop was exer A railroad company have a right to recised by the tenants as such, with the quire all persons to procure tickets sanction and assent of the lessor. These before entering the cars. facts are sufficient to establish a new To make the improper conduct of an contract, or that which is equivalent

attorney, in going outside the evi

dence and making improper comthereto, whereby the grant of the privi

ments available as error, the Court lege made by the original agreement must be called upon and refuse to revived (Like vs. McKinstry, 41 Barb.,

stop counsel. 191. S. C., 4 Keyes, 397). The in This was an action by the appellee validity of the original demise is no ob- to recover damages for an alleged injujection to the new contract. The case ry and ejectment from the cars of the of Dung vs. Parker, 52 N. Y., 494, appellant. The complaint is in two does not affect this principle, and the paragraphs. The first alleges that it principle is supported by the case of was a rule of the company not to perHarris vs. Frink, 49 id., 24.

mit passengers to travel on freight The defendant took his conveyance trains without tickets, and that plaintiff with notice of the right to take off the entered the cars of the company, but crop claimed by the tenants, and it was was unable to first procure a ticket, be

cause the ticket office of the company

BILL OF PARTICULARS. was not open before the train passed. N. Y. SUPREME Court, GENERAL TERM, That upon his failure to furnish a tick

FIRST DEPARTMENT. et, he tendered his fare to the conduct

Corbett, rcspt., vs. Trowbridge, et al., or, who refused to receive it, but with force expelled him from the train, etc.

applts. The second paragraph is substantially

Deci ied March 31, 1876. as the first. Verdict for plaintiff for Appeal from order denying further $562.50.

bill of particulars. Held, 1. That in an action to recover This action was brought to recover unliquidated damages, the jury may re- for professional services rendered by sort to means to arrive at a verdict that plaistiff at attorney and counsel for the are not allowed in criminal actions, or in defendants, in their administration of a civil action where the damages are the estate of one George Harden, deliquidated; and that if it did appear that ceased. After service of the complaint, the verdict for $562.50 was the result defendants duly demanded a bill of of a compromise, it would not vitiate it. particulars

, and thereafter received from 2. That the appellant had a right to the plaintiff

' a statement containing the adopt a regulation that all persons who items of services, many of which were travel on a freight train should procure rendered on the same day, without giva ticket before entering the cars. Buting the price charged for any of such such a regulation imposes the duty up-services, but at the end stating that the on the company of having the ticket items set forth are charged for at office open sufficiently long enough be- twenty thousand dollars.” Defendants fore the departure of the train to ena- applied at Special Term for an order ble passengers to procure tickets.

requiring plaintiff

' to specify the charge 3. That the expulsion of plaintiff from for each item of service separateiy. the train was wrongful, and that after

Motion denied. careful consideration the verdict cannot be disturbed on account of excessive

RII. Corbett, in person for respt. damages.

G. L. Ingraham, for applt. 4. That in order to make available

On appeal, Held. That defendants as error the improper conduct of an at- are entitled to specific statements of torney, in going outside of the evidence each service, date of rendition and sum and making improper comments in his charged ; if not for each item, certainly argument to the jury, it must appear for t' ose occurring upon the same day. that objection was urged to such argu- They should not be required to be prement, or that the court was called upon pared to resist all the charges by proof to stop counsel and confine hiin within of their value, when, if the sun claimed the record, and that the failure of the for each were specified, it might, in court to interpose, when opposing coun- many instances, be consented to. The sel are present and do not ask the inter- bill is to advise the vefendant of what position of the court, or object to the line of argument, will not entitle the he is called upon to pay, and should asparty to a new trial.

similate in theory and practice to the Judgment affirmed.

bill of a merchant for goods delivered. Opinion by Buskirk, J.

Order reversed, and an order entered

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