for respt.

showed allowances by way of interest plaintiff, upon which interest was alto plaintiff upon balances in defendants' lowed for the balances in the defendhands.

ant's hands. This view is fortified by It was urged below by plaintiff's the acceptances taken by plaintiff at counsel that the action being to recover the time of defendant's embarrassment, money held by defendants in a fiduciary as well as the statement in the affidavit capacity, that an execution might be is- of plaintiff's attorney, with reference to sued against the person of defendant if the allowance of interest by defendants no order of arrest had been obtained, on balance due plaintiff. The facts and urged also that the question as to seem to give the defendants the prewhether the defendants actually receiv- ponderance of proof. ed the money in a fiduciary capacity or Order appealed from reversed with not being the question which the jury $10 costs. was to determine, it could not be tried

Opinion by Daniels, J.; Davis, P. in advance upon affidavits.

J., and Brady, J., concur in result. S. P. Nash, for applt.

HIGHWAY. OBSTRUCTIONS. Benj. G. Hitchings and H. F. Pultz,

N. Y. SUPREME COURT, GENERAL TERM. Held, That even if the cause of ac

FOURTH DEPATMENT. tion and of arrest were identical, Baxter, respt. v. Warner, applt. which they were not, as the determina Decided January, 1876. tion of the question as to whether or The fact that a street is laid out with not the money was held or received in sidewalks, gutters, &c., and used by a fiduciary capacity, was not necessary

the public, is prima facie evidenie

that it is a street for public use, &c. to a recovery, still a motion to vacate Obstructions to highway. the order of arrest was proper, and the Liability of party interfering with court will look at the facts before it and

public highway. determine whether the order of arrest This action was brought, originally, should be sustained or not alike in in a justice's court, for damages to cases where the cause of action and of plaintiff's horse harness, &c. arrest are identical as well as in cases The defendant, having a ditch or where they are not. In this case, how- sewer to dig, applied to one R. to do ever, although the facts alleged in the the work. R. hired a man to help him. affidavit upon which the order of arrest They partly completed the work and was obtained, were sufficient, if uncon- passed into Lansing street, and at night troverted, to sustain the order; two of left a part of the ditch open, but prothe defendants positively deny the facts tected by a barricade of boards. They alleged concerning their obligation to left no light at the barricade. Plaintiff, pay over the identical money received in passing along the street with his by them. And their statements upon horse and buggy, got his horse into the this subject were sustained by the form ditch; the horse ran away, and the of the accounts shown to have been ren- damage sued for was incurred. dered to the plaintiff during the pro There was no direct evidence that gress of the business, by which accounts Lansing street was a public street, but it appears that the moneys received it appeared that it was guttered, curbed, were made a matter of credit to the land had sidewalks.

The night of the accident was dark. The defendant cannot escape liability There was a judgment for plaintiff. for the doing of such acts by proving S. W. Lindsley, for applt.

that he made a contract with another Wm. II. Davis, for respt.

to do them, and that they were actually Ileld, We think the evidence was done by the latter and not by himself. sufficient prima facie to show that (Ellis v. Sheffield Gas Cons. Co., 2 Ell. the accident occurred upon a public & Black, 767; Gray v. Pullen, 5 Best highway. Lansing street evidently had & S., 970–981 ; Pickard v. Smith, 106 been laid out as a public street, with a B. (N. S.) 480; Mersey Docks v. Trustcarriageway, sidewalks, gutters, &c., ees, L. R. 1 H. of L., 114; Storrs v. and it was in constant use as a street. City of Utica, 17 N. Y., 104; Congreve These things would not ordinarily exist v. Smith, 18 id., 79.) unless it was a street provided for pub The question of the contributive lic use, by competent authority, and negligence of the plaintiff was one of subject to public control and supervi- fact, and we think it was submitted to sion. Indeed, the charter of the city, the jury in a manner quite as favorrecognized the existence of the street. able to the defendant as the evidence and the provision relieving the city of warranted. the control of a portion of it does not

The judgment and order denying a detract from the character of any part new trial should be affirmed. of it in actual public use as a high way. Opinion by Gilbert, J.; Mullin, P.J., The defendant, therefore, had no right and Smith, J., concurring. to do anything, himself, or to cause anything to be done by another, whether PARTNERSHIP. PROMISSORY servant or contractor, which rendered

NOTE. the street less safe than formerly. It N. Y. SUPREME Court-Gen’L TERM. is immaterial to inquire whether Rey

FOURTH DEPARTMENT. nolds was a contractor or a servant; he

White's Bank of Buffalo v. Joseph was employed by the defendant to dig

Getz and another. the ditch in the street, and the injury

Decided January, 1876. is attributable to that act. The rule deduced from the maxim respondeat Where an agent acts in making or en

dorsing negotiable instruments withsuperior, which exempts an employee,

in the scope of his general authority, does not apply to cases where the inju the fact that he has abused or pervertrious act is the very act which the con ed it in the particular instance, contractor was employed to do, or a neces. stitutes no particular defense against sary consequence of the work commit a bona fide holder for value. ted to him. Here the defendant shows This is an appeal from a judgment no legal authority for making the open-on a verdict of a jury for plaintift. ing in the street. It was an illegal act. The action was on a promissory note That act necessitated the obtruction of made by J. Getz & Co., of which dethe street by barriers, to prevent trav- fendant, Jewett, was one of the part elers from falling into the ditch, and ners.

Getz & Co. were extensive man. these barriərs being left in the night- ufacturers in Buffalo, and Jacob Getz, time without lights, were the immedi- one of the firm had oversight of the ate cause of the accident to the plaintiff business, and borrowed money and

He re

signed the firm name to notes, &c., and holder of the note, according to the setendorsed the firm name.

tled rule of law of this state. On the trial evidence was given that ceived the note in suit from Shutterthis note in suit was endorsed outside worth in payment of a draft for a large of the firm business, and that S., to amount on which Shutterworth was whom the note was delivered, knew of liable as drawee, and actually gave up this want of authority.

the draft to Shutterworth. This constiBefore the note was due S. delivered tuted a parting with value, and nothing same to plaintiff, in part payment of a appears in the case, which, in other reprotested draft for $800, drawn by him, spects, impeaches the plaintiff's right to S., and held by plaintiff, and which recover. (Pratt v. Coman, 37 N. Y. plaintiff delivered up to S.

440, and cases cited.) The measure of There was no evidence tending to recovery in such a case is the amount of show that plaintiff, in any way, knew the bill or note surrendered, and not its of this want of authority in the person supposed value as affected by the solvwho endorsed the firm name.

ency or insolvency of the parties liable The court directed a verdict for the on it. (Young v. Lee, 2 Ker. 551; S. C., plaintiff.

18 Barb., 187.) Such value is fixed by Sherman S. Rogers, for respt. the agreement of the parties, which is Thayer and Benedict, for applt. evinced by the exchange of the new

Ileld, Mr. Jewett being a partner in security for the old one. the firm of Getz, Jewett & Co., is The judgment must be affirmed. liable on the endorsement of the note Opinion by Gilbert, J.; Miller P. in sait by his co-partner, Mr. Getz, in J., and Smith, J., concurring. ti:e partnership name, notwithstanding such indorsement was made without any COMMON CARRIER. BAGGAGE. actual authority to make it; for the rea- N. Y. SUPREME Court, GENERAL TERM, that the plaintiff is a bona fide holder

FOURTH DEPT. of the note for value, and without notice of such lack of authority. Each

Sloman, respt., v. Great Western

R. R. Co., applt. party has a general authority, by virtue of the partnership relation, to endorse

Decided January, 1876. notes in the partnership name. They Railroad companies are not liable for

the loss of merchandise delivered to are mutual agents of each other. Where

them as baggage for transportation an agent acts in making or endorsing

with a passenger. negotiable instruments within the scope To make the company liable the pasof his general authority, the fact that

senger must in some way bring to that he has abused or perverted it in the the knowledge of the company, the particular instance, constitutes no de fact that the property checked is fence as against a bona fide holder for

merchandize, not baggage. value. In such a case the apparent au The plaintiff was a wholesale cloththority is the real authority. (Weeks ing merchant in the city of Rochester, v. Fox, 3 N. Y. Sup., Thomp. & Cook, his son was traveling for him and sell356-7, and cases cited.)

ing his goods. On August 8, 1873, the The evidence leaves no room for son was at Flint, Michigan, had with doubt that the plaintiff is a bona fide him, containing his samples, two large

trunks weighing about 300 pound: baggage-master knew, or was informed, apiece. On the afternoon of that day that the trunks contained merchandize. he leit Flint to go to Rochester. He The receipt given for extra baggage went to the baggage master of de- did not show it in any way. fendant's road and bad his trunks check Judgment reversed. ed, paid extra baggage rates thereon, Opinion by Gilbert, J.; Mullin, P. and took a receipt therefor. When the 1.J., and Smith, J., concurring. trunks were checked the son was asked where he wanted them checked to. He

INJUNCTION. CONTRACT. replied that he did not know at that

CONSTRUCTION. time as he had sent a dispatch to a cus

N. Y. COURT OF APPEALS. tomer at Fulton ville to know if he wanted any goods and if he did not, he

Clark, respt., v. The N. Y. L. Ins. and would go to Rochester, as he expected Trust Co. et al., applts. to meet some customers on the train. Decided January 25, 1876. Just before the train started he had | An injunction will not be granted unthe trunks checked to Rochester, 1-88 a reasonably clear case is made The goods were damaged on the trip

out. and this action was for damages.

A construction given to a contract There was a judgment for plaintiff.

claimed to restrict the right to build

to the street line. W. F. Coggswell for respt.

This was an action to restrain the Sprague, Gorham & Bacon for applt. erection of a building upon a strip of

Held That railroad companies are land 74 feet wide, on 22d street, in the not liable for the loss of merchandize City of New York, and extenging cast delivered to them under the description from Broadway 122 feet. It appeared of baggage, for transportation along that on May 12, 1849, an agreement with a passenger. If a railroad com- was entered into between one K. & M. pany knowingly undertakes to trans- and wife, for the purpose of reserving port merchandize in trunks or boxes, 7! feet in front of the houses on each which have been received by them for side of 22d street, from being built transportation in passenger trains, they upon. The agreenient recited that the are liable unless the agent, who received parties were respectively the owners of the package for that purpose, violates a divers lots on either side of 220 street regulation of the company by so doing, between Fourth Avenue and Broadand the passenger or owner of the goods way, that divers dwelling houses had has notice of such regulation.

been erected on each side of said street That to render a company liable for leaving a court yard 7} feet in front of the loss of merchandize transported as them, “ and the parties hereto deeming baggage, the company or its agents it to be for their natural advantage that must know, or must have been informed the lots fronting said street when built in some way by the passenger when the up between Fourth Avenue and Broadbaggage was received, that it was not way, should be occupied exclusively ordinary baggage but was merchandize. for dwelling houses, and that the fronts

That there was no evidence in this of all such Iwelling houses should be case warranting thic inference that the placed back seven feet and a half from


the liue of the street,

do the right of property in the lots on tor themselves and their respective heirs Broadway, and something more than a and assigns, grant and agree to, and doubtful right is required to justify with each other, that so much of their an interference. A reasonably clear respective lots belonging to them res- case should be made before the rights pectively, as is contained between the of an owner of property should be imline of the street and a line seven and paired to the extent claimed. a half feet therefrom shall forever here. Judgment of General Term reversafter remain and be enjoyed as a court ing that part of judgment of Special yard in front of any houses to be erect- Term, which denied the relief demanded on said lots, &c..” It was proved ed as to the lots on Broadway, rethat when the agreement was made, the versed. land had been divided into lots, and Opinion by Church, Ch. J. that the parties had before them a map which had been filed seven years in the GOOD WILL SALE OF. Register's office, and according to which, N. Y. COURT OF APPEALS. lots on Broadway a'id Fourth Avenue,

Sander, et al., applts., v. Homan, et were laid out twenty-five feet wide and

al., respits. running back about ninety six feet; be

Decided February 22, 1876. tween these, the lots were laid out twenty-five feet Twenty-second Upon the sale of a business and its good

will, accompanied by an agreement street, and running back half the width

not to carry on a similar business of the block ninety-six feet.

within certain limits, the vendor is W. A. Beach, for respt.

bound not only not to solicit but to Lyman Tremain, for applts.

decline all business from customers Held, That the lots laid out twenty

within the prescribed limits. five feet on Broadway and Fourth

This action was bronght to recover Avenue, must be regarded as fronting a sum specified as liquidated damages on those streets, and the lots between for the breach of a contract, under must be deemed to front on Twenty- which defendants sold the good-will of second street; and it must be presumed their business as retail dealers in meat that the parties to the agreement so re- and vegetables in New York city to garded them, and that when they specifi- plaintiffs

, and covenanted with them ed lots fronting on Twenty-second street not to engage in a similar business for they intended to distinguish between five years within certain limits. A year those and other lots fronting on other after, defendants engaged in a similar streets. It must be assumed that the business a short distance outside of the parties in making the agreement, had prescribed limits, and supplied some in contemplation the lots as laid out of their old customers within

said and designated on the map, and it limits by sending daily to their resimight be inferred that they assumed dences a wagon with the provisions they that the lots on Broadway and Fourth needed and receiving orders, through Avenue, would or might be ocenpied their messenger who carried them, for for business purposes.

the day following. Only four such inAlso helú, That the injunction stances were shown upon the trial. sought woul.i seriously interfere with There was evidence on the part of

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