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An agent of an express company may

to distract her attention, Held, that receipt for goods, and such agent's she was guilty of contributory neylisignature may be proved by some one yence. who, in regular course of business. The same degree of care is not required has received such receipts and knows of one driving a team across a rail. such agent's hand-writing.

road crossiny as of one crossing on Appeal from an order granting a new

foot. tial to defendant.

This action was brought to recover On the trial defendant offered to damages for the killing of plaintiff's inprove a delivery of the property in suit testate while cross ng one of defendant's to the Adams Express Company and to tracks at their intersection with Broadshow such delivery called a witness who, way in the village of Greanbush. on a receipt of the Adams Express Com It appeared that the deceased was pany being offered by defendant, swore walking northerly on the east side oí he knew the clerk signing the receipt, Broadway. The tracks, three in numhad never seen him write, but had ber, cross that street in a northwesterly seen a large number of receipts sign-direction, ed by him for property delivered Upon the first track some box cars to other express companies, and froin were standing partly across the street, the knowledge thus acquired, he be- and obstructing the view of the delieved it to be the gent's (of the Adams ceased towards the north and east; the Express Company) signature.

second track, which was distant six feet To this proof plaintiff objected. from the first was clear, and the third P. C. Williams, for applt.

was twenty feet from the second. At Wynn & Porter, for respt.

this time an engine, with five box-cars, lleld, That the proof offered was was coming from the south upon the sufficient of the due execution of the third track. About 300 feet southeastreceipt. That in such cases proof of erly of Broadway there was a switch, hand-writing and that witness has seen and there the train made a rupping person signing such receipt not neces- switch, the engine passing on and tle sary.

cars running off on the second track. Order affirmed.

After the deceased passed the first Opinion by Mullin, P, J.

tract there was nothing to obstruct her

view of the second and third tracks. RAILROAD COMPANY. NEGLI. She passed the second track before the GENCE.

cars from which the engine had been N. Y. COURT OF APPEALS.

switched, passed. As she stepped upMitchell, admr., &c., applt. v. The on the third track she was struck by the N. Y. C. & H. R. R. R. Company, re- engine and killed.

The accident happened in the day8pt.

time, and there did not appear to have Decided April 4, 1876.

been anything to distract her attention; Where a person is killed while walking wer a railroad crossing in the day

no train was coming from an opposite time, there being nothing to obstruct direction. the view of the track, and it does A motion was made for a non-suit, not appe ir that there was anything which was granted,

Amasa J. Parker, for applt. and bill of particulars was fully paid Esck Cowen, for respt.

but ordered judgment for plaintiff for lleld, no error. That the deceased the amount of the order. was guilty of contributory negligence. J. F. Seymour, for applts. 20 N. Y. 66; 58 Id. 248; 17 Id. 400; 0. S. Williams, for respt. 39 Id. 358.

Fleld, That in order to entitle plainAlso held, That the same degree of tiff to recover under the circumstances care is not required of one driving a of this case for this order, he should team across a railroad crossing as of one either have amended his complaint or crossing on foot.

in some way given defendant notice of Judgment of General Term, affirm his intention to seek a recovery upon it. ing judgment of non-suit, affirmed. The fact that defendants did not obOpinion by Earl, J.

ject to the reception of the evidence

made no difference. Plaintiff was PRACTICE.

bound by the items set out in his comN. Y. SUPREME Court. GEN’L TERM, plaint and bill of particulars. FOURTH DEPARTMENT.

Judgment reversed. Hallenbeck, respt. v. Phelps et al.,

Opinion by Mullin, P. J. applts. Decided June, 1876.

MORTGAGE. USURY. Where a complaint and bill of partic SUPREME COURT OF Ohio.

ulurs is served setting up certain items, a referee cannot render a judg

Philip Cramer, v. Peter Lepper (not ment on another and different claim yet reported). when the complaint is not amended A party who purchases land subject to or no notice given of any claim on à mortgage which he is to pay as a such new item.

part of the purchase price, is the purPlaintiff sned to recover for certain

chaser of the equity of redemption itms for labor and services, and had

merely, and cannot set up as a de served a bill of particulars of his

fense that the note secured by the

mortgage was usurious. claim.

There beiny no agreement as to the rate The answer denied most of such of interest upon accrued interest, it items, set up payment, &c.

will be computed at six per cent. Just betore the close of the evidence Motion for leave to file a petition in plaintiff was recalled as a witness in his error to the District Court of Summit own behalf, and testified as to a certain County. order of $150, which he claimed defend On the 25th of February, 1868, C. ants had accepted, and which was not executed his note to one T. for $2,500, set up in the complaint or bill of par- payable five years after date, with inticulars. No objection was made to terest at the rate of ten per cent. per the reception of this evidence nor any annum, payable annually; and executed suggestion made that plaintiff intended a mortgage on certain real estate in to insist upon the right to recover upon Summit County to secure the same. such order.

On the 1st of April, C. executed and The referee, in his report, finds that delivered to L. a deed of said property, the work, &c., set up in the complaint in pursuance of a contract to sell the

same, in which he covenanted that the grantee, who assumes, in consideration premises were free and clear of all in- of the grant, to pay the mortgage. cumbrances except a mortgage claim of Union Bank v. Bell, 14 Ohio St., 201; T. for $2,500 which L. was to pay to T. Green v. Kemp, 13 Mass., 515; Shufelt

From time to time afterwards and v. Shufelt, 9 Paige, 137; Morris v. until March 12tlı, 1874, L. paid to T. Floyd, 5 Barb., 130. divers sums on his mortgage.

That as between C. and L. the Court On the 25th of April, 1874, T. of Common Pleas rightly construed brought an action in the Court of Com- their contract in holding C. to the pay. mon Pleas of Summit Co. against C. ment of the interest which had accrued and L. to enforce his lien for the bal- prior to the date of the conveyance. ance due on the note, including inter But that the Court of Common est at the rate specified. L. resisted so Pleas erred in not charging C. with much of the claim as was usurious. interest on the sum decreed against him

The court found the balance due, from the date of the conveyance to the including interest at the rate of ten date of the decree. The rate of such per cent., to be $1,402.50, and decreed, accruing interest was six per cent., upon failure of payment at a short there being no agreement as to the rate day, the sale of the mortgaged prem- of interest upon accrued interest. ises.

Motion overruled. Upon further proceedings, the court Per curiam opinion. decreed that as between themselves C. was bound to pay T. the sum of $275.20

ATTACHMENTS. DISSOLUTION and L. the balance, to wit, $1,126.80.

OF CORPORATION. On petition in error to the District Court, by L.it was claimed that the Com-N. Y. SUPREME COURT. GEN. TERM. mon Pleas erred in holding that L. was

FOURTH DEPARTMENT. bound by his contract to pay more than Chamberlain, applt., v. The Roches$2,500, and interest at six per cent., ter Seamless Paper Vessel Co., respt. fron April 1, 1869, and in not holding Decided April, 1876. that C. was liable for interest on said Proceedings under the statute for the sum of $277.20 from the same date. voluntary dissolution of a corpora. he District Court reversed the judg tion must conform strictly to the ment of the Common Pleas, and this

statute. proceeding is to obtain a reversal of the The appointment of a receiver in the

proceedings, of the property of the judgment of the District Court.

corporation, before the report of the Ileli, That as between T., the mort referee appointed under the order, gagee, and L., the grantee of the mort was irregular and in no way resten gagor, the latter must be regarded as property in receiver or prevential purchaser of the equity of redemption

creditors from pursuing their ordi merely, and as such he had no right to set up by way of defense that the note

Appeal from order setting aside atsecured by the mortgage was usurious;

tachments, executions, &c. that the defense of usury in such a case

Defendant was a corporation, and is personal to the mortgagor, and it plamtitl' had procured judgment against waived by him cannot be set up his it, and had issued an execution and

nary remedies.

had levied attachments on property on Where a license has been given by one the ground that defendant had made an or more of several owner's in com

mon of letters patent, the remedly of assignment of its property, &c.

the others is by action for an account Proceedings had been commenced

for whatever has been received. for a voluntary dissolution of the cor

This action was brought by plaintiff, poration, and a referee had been ap- who was the owner of an undivided pointed, before whom there was to be

interest in a patent, to recover for the a hearing, and the notice required by statute had been duly published. Be use of it by defendant withont the

consent, license or permission of plainfore hearing before the referee, and

tiff. Defendant demarred. before his report, a receiver was ap

E. P. Ilart, for applt. pointed by the court and by order

P. Derter, for respt. vested with the title to all the property, and gave the bond required by statute for the infringement of a patent and

Held, That the action being simply After this the order setting aside plain- for damages, that the United States tiff's execution and attachment was

courts had exclusive jurisdiction of it made on the ground that the property and it could not be maintained in the was in receiver.

State courts, 37 N. Y., 119; 3 Com., 9, Tield, That the appointment of the

and that the desnurrer was properly receiver before hearing before the

sustained. referee, was irregular, and no property

The State courts will entertain jurisvested in him, and that his appoint- diction of actions upon contract and ment in no way interfered with the

other actions in which patent rights rights of creditors to pursue their ordinary legal remedies. The proceeding Y., 443, 662.

come in question collaterally. 47 N. was not an action, and the court had

The license of one or more of seveno right to appoint a receiver except in

ral owners in common of letters patent conformity to the statute. There is

confers a right as against all, and the restriction in the statute on creditors pur- remedy of the other tenants in common suing all their remedies up to the regu- is by action for an account for whatlar appointment of receiver, and the

ever may have been received by them. appointment in this case was irregular. 2 Curtis, 506; L. R. 1 Ch. Ap. 29. Order reversed.

Pitts v. Hall, 3 Blatch., 201, distinOpinion by Smith, J.

guished.

Judginent of General Term, affirmPATENTS. JURISDICTION. ing order of Special Terin sustaining

N. Y. COURT OF APPEALS. demurrer to the complaint, aflirmed. De Witt, aizplt., v. Elmira Nobles Mfg.

Opinion by Allen, J.
Co., respt.
Decided June 20, 1876.

AMENDING PLEADINGS. The United States ourts have exclusive X. Y. SUPREME COURT. GEN'L TERM, jurisdiction of im action for the in

FIRST DEPT. fringement of a patent. State courts have jurisdiction in ac

Mathias Bradley, applt. v. Michael tions in which putent rights come in Sheehy, respt. question collaterally.

Decided May 26, 1876.

no

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cessary deeds.

Where plaintiff delays for severai of the statute of limitations, and the

years after issue joined, in bring- fact that he has since died.
ing his cause to trial, such delay
will not prevent defendant amend-

A. Cardozo, for applt. ing his answer.

S. Jones, for respt. Appeal from order allowing an

On appeal. amendment of defendant's answer.

lleld, That plaintiff bases his oppoPlaintiff' brings this action for the sition principally on defendant's alieu. specific performance of a contract, and ed laches, but as the delay seems t have for damages for its non-performance.

resulted from the mutual indisposition It appears that the defendant em

of both parties to proceed, plaintiffos ployed an auctioneer to sell certain lots objection loses its force. of land under definite instructions. At

The action was practically suspended the sale, plaintiff

' bought in the lots, during several years, a part of the time but defendant claiming that the auc

in the hope that a settlement might be tioneer had violated and exceeded his effected. During this delay, by reason

of the auctioneer's death and the statinstructions, refused to execute the ne

ute of limitations, plaintiff has lost This action was commenced in May, whatever remedy he might have had 1869. In September, 1870, judgment against him for entering into an unauby default was entered on the report of thorized contract, but this loss is so a referee. This was afterwards opened, clearly attributable to plaintiff's own on terms, and defendant allowed to an- neglect in the prosecntion of his action swer, issue being as of September 27,

that the defendant should not, on 1870.

that account, be deprived of his Nothing further appears to have been amendment. done in the matter until April, 1875

No reason appears in the papers for when the cause was placed on the the snpposition that defendant intenSpecial Term calendar. When reached tionally delayed making this applicathe cause was postponed, plaintift not

tion after its propriety was discovered.

Order aflirmed. being ready, and on condition that plaintift consent to refer it.

Opinion by Daniels, J.; Davis, P. Defendant in his first answer admitt. J., and Brady, J., concurring. ed that the lots wers put up for sale, but denied that plaintiff purchased them.

STATUTE OF LIMITATIONS. Fearing that that form of an answer

N. Y. COURT OF APPEALS. would not raise, as an issue, the auc Smith, survivor, &c., applt., v. Ryan, tioneer's alleged transgression of au- respt. thority, defendant now seeks, to amend Decided June 6, 1876. by putting that fact clearly in issue. Where notes are transferred by in

Plaintiff opposes this application on dorsement, in part payment of a debt, the ground of defendant's intentional payment of the notes at maturity by laches, and for the further reason that

the makers does not operate as an if defendant succeeds in establishing

acknowledgment of the residue of the

indebteilness, they not being the authat defence, plaintiff ' will now have no

thorized agents of the debtor. remedy against the auctioneer because There is no agency between several joint

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