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R. H. Rosa, for applt. Farkhurst & Baker, for respt. Held, That there seems to be no question of law. The court cannot review a question of fact on such contradictory evidence.

Opinion by Learned, P. J.

MUNICIPAL CORPORATIONS.
LIABILITY OF.

N. Y. COURT OF APPEALS.
Smith, applt. v. The Mayor, &c., of
New York, respt.

Decided May 30, 1876.

ble upon proof of some fault or neglect on their part, either in the construction. of the sewer or in keeping it in proper repair; that in order to recover plaintiff was bound to show a neglect by defendants to remove the obstruction after notice of its existence, or some omission of duty on the part of the city of ficers in looking after it and seeing that no obstruction occurred.

Also held, That the city does not insure citizens against damage from works of its construction, but is only liable as other proprietors for negligence or willful misconduct- 37 Barb. 292; 36 N. Y. 54; 5 Seld. 456; 45 N. Y. 194; 59 Id. 500.

A municipal corporation does not insure citizens against damage from works of its construction, but is only ing judgment in favor of defendant afJudgment of General Term, affirmliable for negligence or willful mising

conduct.

This action was brought to recover damages sustained by plaintiff by reason of the stoppage and overflow of one of defendant's sewers.

firmed.

Opinion by Allen, J.

ADMINISTRATORS. SUITS BY.

The referee found that the overflow N. Y. SUPREME COURT. GEN'L TERM,

was caused by a stoppage of the sewer with sand and dirt washed in from the street, and that at or just before the flooding of plaintiff's premises there was an unusually heavy shower of rain.

FOURTH DEPARTMENT.
Nichols, respt., v. Smith, applt.
Decided April, 1876.

On a judgment recovered in a foreign
country the administrators of the
deceased judgment creditor may
maintain an action in their own
names in this State.

Appeal from an order sustaining a demurrer.

There was no proof of any obstrucstruction before that time, and there was no evidence or finding that the sewer was liable to become obstructed under ordinary circumstances so as to require the watch and care of the offi In 1872, one Samuel Dixon, residing cials, or that it had been obstructed for in Canada, recovered in that country a a time and under circumstances from judgment against defendants. which it might be assumed that the of ficers of the city knew or ought to have known of the obstruction.

Henry Parsons, for applt.
D. J. Dean, for respts.

Plaintiffs are the administrators of Dixon, and commenced this action in this State on such judgment. The complaint stated that Dixon had no creditors in this State.

Defendants demurred that the com

Held, That defendants were not lia-plaint did not state facts sufficient to ble; that they could only be made lia- constitute a cause of action, and that

plaintiffs did not have legal capacity to ness. In 1868, said L. desiring to make

sue.

The demurrer was sustained.

John H. White, for applt.

Own names.

reparation for this injury, and as he did not want her to be disgraced or become a woman of the town, assisted her in the purchase of the premises in ques

andings

Rhodes & Richardson, for respt. Held, That plaintiffs may maintain tion. The deeds were executed and this action in this State in their delivered. L. paid the purchase money, The title to the judg-saying that $1800 of it were the earnwas absolutely in them and ings of defendant, and the rest a loan, may be prosecuted here. The judg-for which he took her judgment bond, ment is to be used on this tria! to show which was afterwards surrendered to her and cancelled without payment. and establish their title, and the amount they are entitled to recover,

ment

There is no reason why a recovery may not be had in this case in the individual names of plaintiffs as well as in an action on a promissory note or other

chose in action.

Order reversed.
Opinion by Nexon, J.

EXECUTED CONTRACT. IMMORAL CONSIDERATION. SUPREME COURT OF PENNSYLVANIA. Fasig, plff. in error, v. Levan et ux. defts. in error.

L. and F. continued their illicit intercourse until 1871, when a judgment was obtained against L. and the premises levied upon and sold by the sheriff as his property to one Koch, under whom the plaintiff's wife shows title.

On the trial the court charged the jury that if they should find that the purchase money was paid by L., then a resulting trust would be created in his favor, which could only be defeated by the declarations and acts of the parties accompanying the transaction. And the court further charged:

"In the absence of precedent we are Decided March 10, 1876. to decide this case upon the well-known Although an action cannot be main- principle of law, that an immoral contained upon an executory contract, sideration will never support a contract; the consideration of which is immor- to hold this title to be valid in Mary A. al; when the contract has been ex-F., under the evidence in this case, the ecuted, the law will not restore them to their former condition.

Error to the Common Pleas of Berks county.

Ejectment by L. and wife to the use of the wife against Mary F. for a dwelling-house and lot of ground in Readin .

court and jury would but set a premium on immorality and encourage infidelity to the marriage relations.”

There was a judgment for plaintiffs, from which the defendant took this

writ of error.

Held, That there is nothing in the case to show a resulting trust; that the purchase money was a gift from L. to defendant.

Mary F., the defendant, in 1866, was an employee of L., the plaintiff, by whom she was seduced, and who, afterwards, during her pregnancy, caused her to submit to an operation for abortion which produced a dangerous ill-defendant is not seeking to enforce such

That the doctrine that "An immoral consideration will not support a contract," does not apply to this case The

a contract. If any contract existed, it him to come and get it when he pleased, was fully executed. and that it was all understood, and This is a case of a man who has wrong- plaintiff replied he would gt it in ed a woman, wl. has made her a com- good sleighing, &c. This testimony pensation for that injury, and who now was confirmed by one of plaintiff's seeks to recover it back. In this the witnesses, and also denied by defendlaw will not help him.

Judgment reversed, and a venire facias de novo awarded.

Opinion by Paxson, J.

WEIGHT OF EVIDENCE.

NON-SUIT.

N. Y. SUPREME COURT. GENERAL TERM,

FOURTH DEPARTMENT.

ants and others.

Finally defendants refused to give plaintiff any of the lumber, and this action was brought.

On the trial at the circuit plaintiff was non-suited on the ground that he had made no case.

J. B. Emmons, for applt.
E. S. Merrille, for respt.

Held, That the nonsuit was error.

Hodgkins, applt. v. Van Amber, et. A non-suit should only be directed

al., respts.

Decided April, 1876.

A non-suit should only be ordered where the evidence on either side is so clear and undisputed that a virdict in conflict with it could not be sustained.

On a motion for a non suit all disputed facts are to be decided in favor of plaintiff.

Appeal from a judgment at circuit. This action was brought to recover a quantity of lumber claimed to be the property of the plaintiff.

One G. purchased of defendants 10,000 feet of spruce lumber. Plaintiffs purchased of G. the lumber he bought of defendants and paid him for the same. About the time of this sale by G. to plaintiff, they saw Van A., one of de fendants, who stated that G had 10,000 feet of lumber at their mill. Plaintiff then asked Van A. if he would just as soon deliver it to him as to Gates, and

he said he would. G. then told Van A. to deliver the lumber to plaintiff and Van A. agreed.

where the evidence on either side is so clear and undisputed that a verdict in conflict with it would not be sustained.

That the question of fact in the case was a disputed one, and on a motion for a non-suit all the disputed facts must be decided in favor of plaintiff, and this the court could not do. Judgment reversed. Opinion by Noxon, J.

FIRE INSURANCE. WAIVER OF

CONDITION.

N. Y. COURT OF APPEALS.
Church, applt., v. The Lafayette Fire
Insurance Co., of Brooklyn, respt.

Decided May 23, 1876.

Payment of the premium at the time of
making a contract of insurance is
not necessary to bind the company;
and if a credit is given by the agent,
An agent may waive such payment and
the contract is equally obligatory.
give such credit.

The question of waiver is for the jury
to determine.

Plaintiff and Van A. also had other This was an action upon a policy of conversations in which Van A. told fire insurace. The evidence showed a

requested the court to submit to the jury the question whether or no defendant had not given plaintiff credit on the policy in question. The court refused to do this, and nonsuited the plaintiff. N. C. Moak, for applt.

Philip S. Crooke, for respt.

Held error. That the fact that de

prior dealing of plaintiff with defend- | Plaintiff's counsel requested the court ant for many years, and that he was in to submit the whole case to the jury no there was a contract. the habit of getting policies without whether or He also paying the premium at the time; that The court refused to do so. plaintiff, on Sept. 6, 1871, called at the company's office to get the property in question insured, saw defendant's see retary, and tried to have the old rate reduced, which the secretary refused to do, and plaintiff then replied, “Very well, I must have it insured." The next day defendant made out the policy by which it insured the building from fendant had on former occasions given September 6th. Plaintiff called again plaintiff credit for premiums was for on the 9th, and asked the secretary if the jury to consider on the question of he had taken the building; he replied waiver of the condition in the policy. he had at the old price. Plaintiff made 59 N. Y., 521; 26 Id., 465. That the no objection, and no further conversa- evidence was sufficient to leave to the tion took place. On October 16, 1871, consideration of the jury the question plaintiff again called to obtain insur- whether a credit was not intended to be ance upon other property. The secre- given, and payment of the premium tary was not in, but the plaintiff stated when the policy issued waived, and conto defendant's clerk that he had another sidering the circumstances and previous policy, and would pay for the two to-dealings of the parties, it could not be gether, and the clerk replied "Very held as matter of law that there was no well." Plaintiff did not call again un-waiver and no credit given. til November 8th, after the fire, which took place No ember 7th. He inform ed the secretary of the loss, and offered to pay for the two policies, but the seca retary refused to take anything on the policy in suit, stating that defendant was not liable because the house was unoccupied. A few days after the plaintiff paid the premium upon the second policy from its original date, which was accepted. At the close of plaintiff's evidence defendant's counsel roved for a nonsuit on the grounds, that there was no evidence of any contract of insurance, and that if a contract was proved it was the contract in the written policy, and it never became binding on defendant because the policy provided that it should not be binding until the premium was actually paid. land & Pacific Railroad Co.

of

Payment of the premium at the time making a contract of insurance is not necessary to bind the company, and if credit be given by the agent it is equally obligatory. 59 N. Y., 171. An agent may waive such a condition and give such credit. 35 N. Y., 131; 26 Id., 460.

Judgment of General Term affirming judgment of nonsuit, reversed and new trial granted.

Opinion by Miller,

J.

RAILROAD COMPANIES. LIA-
BILITY FOR ANIMALS KILL-
ED AT CROSSING.

SUPREME COURT OF MISSOURI.
Holman v. The Chicago, Rock Is-

Decided May, 1876.

to give the required signal, and the killing. No fact tending to connect the two was shown.

Judgment reversed, and cause remanded.

In an action against a railroad company for killing an animal at a crossing, it is not sufficient to show that the employees of the company neglected to ring the bell or sound the whistle in order to authorize a ver- Opinion by Hough, J.; Wagner, C. dict against the company, but it must J., and Napton and Sherwood, J.J., also be shown that such negligence concurring.

caused the damage.

This was an action to recover damages for the killing of a cow belonging to the plaintiff, by a train on defendant's railroad, in a street of the town of Cameron.

On the trial plaintiff introduced testimony to show that the bell was not rung, nor the whistle blown, as the train approached and ran over the cow.

Defendant introduced one Riley, the conductor of the train, who testified that the bell was rung and the whistle sounded.

There was a verdict and judgment for plaintiff, from which defendant appealed.

SERVICE OF SUMMONS BY
PUBLICATION.

N. Y. SUPREME COURT. GEN'L TERM,
FIRST DEPARTMENT.

In the matter of the application

of the Atlantic Giant Powder Company and the Giant Powder Company to vacate and set aside an order directing service by the publication of the summons in an action brought by Israel Hall and others against the Atlantic Giant Powder Company and others.

Decided May 26, 1876.

An order directing service of summons by publication against a non-resident corporation will be sustained under $135 of the Code, when the subject of the action is personal property, within the State, and the transactions in controversy took place here, and the cause of action arose here.

Held, That conceding that the servants of defendant neglected to ring the the bell or sound the whistle, the question is, whether there is any evidence tending to show that the cow was killed by reason of such neglect; that there 18 no necessary connection between the failure to ring the bell, or sound the Appeal from order denying motion. whistle, and the killing; that both may of the Atlantic Giant Powder Company concur in point of time, and the latter and the Giant Powder Company to set not be the result of the former (58 Mo., aside order directing publication of 503); that the connection must be prov-summons and service of summons by ed by the party alleging its existence. publication.

All the facts and circumstances attending the killing should be shown, so that the jury may rationally conclude whether it resulted from such negligence or from other causes.

In the case at bar no such evidence was offered. But two facts were shown to fix defendant's liability; the failure

The action in which the order directing the service by publication was made was an action brought by Israel Hall and others, against T. P. Shaffner, the Atlantic Giant Powder Company, the United States Blasting Oil Company and others, by the plaintiffs as stockholders of the U. S. Blasting Oil Com

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