An agent of an express company may receipt for goods, and such agent's signature may be proved by some one who, in regular course of business. has received such receipts and knows such agent's hand-writing. Appeal from an order granting a new trial to defendant. to distract her attention, Held, that she was guilty of contributory neyli gence. The same degree of care is not required of one driving a team across a railroad crossing as of one crossing on foot. This action was brought to recover damages for the killing of plaintiff's intestate while cross ng one of defendant's tracks at their intersection with Broadway in the village of Greenbush. On the trial defendant offered to prove a delivery of the property in suit to the Adams Express Company and to show such delivery called a witness who, 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 of 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 to other express companies, and from the knowledge thus acquired, he believed it to be the agent's (of the Adams Express Company) signature. To this proof plaintiff objected. P. C. Williams, for applt. Wynn & Porter, for respt. Held, That the proof offered was sufficient of the due execution of the receipt. That in such cases proof of hand-writing and that witness has seen person signing such receipt not neces sary. Order affirmed. Opinion by Mullin, P, J. Upon the first track some box cars were standing partly across the street, and obstructing the view of the deceased towards the north and east; the second track, which was distant six feet from the first was clear, and the third was twenty feet from the second. At this time an engine, with five box-cars, was coming from the south upon the third track. About 300 feet southeasterly of Broadway there was a switch, and there the train made a running switch, the engine passing on and the cars running off on the second track. After the deceased passed the first 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. N. Y. COURT OF APPEALS. cars from which the engine had been switched, passed. As she stepped upon the third track she was struck by the re-engine and killed. Mitchell, admr., &c., applt. v. The N. Y. C. & H. R. R. R. Company, spt. Decided April 4, 1876. Where a person is killed while walking over a railroad crossing in the daytime, there being nothing to obstruct the view of the track, and it does not apper that there was anything The accident happened in the daytime, and there did not appear to have been anything to distract her attention; no train was coming from an opposite direction. A motion was made for a non-suit, which was granted, Amasa J. Parker, for applt. Esek Cowen, for respt. Held, no error. That the deceased was guilty of contributory negligence. 20 N. Y. 66; 58 Id. 248; 47 Id. 400; 39 Id. 358. Also held, That the same degree of care is not required of one driving a team across a railroad crossing as of one crossing on foot. Judgment of General Term, affirm ing judgment of non-suit, affirmed. Opinion by Earl, J. PRACTICE. and bill of particulars was fully paid J. F. Seymour, for applts. Held, That in order to entitle plaintiff to recover under the circumstances of this case for this order, he should either have amended his complaint or in some way given defendant notice of his intention to seek a recovery upon it. The fact that defendants did not object to the reception of the evidence made no difference. Plaintiff was bound by the items set out in his com N. Y. SUPREME COURT. GEN'L TERM, plaint and bill of particulars. FOURTH DEPARTMENT. Hallenbeck, respt. v. Phelps et al., applts. Decided June, 1876. Where a complaint and bill of particulars is served setting up certain items, a referee cannot render a judg ment on another and different claim when the complaint is not amended or no notice given of any claim on such new item. Plaintiff sued to recover for certain itms for labor and services, and had served a bill of particulars of his claim. The answer denied most of such items, set up payment, &c. Judgment reversed. Opinion by Mullin, P. J. SUPREME COURT OF OHIO. A party who purchases land subject to Motion for leave to file a petition in error to the District Court of Summit County. Just before the close of the evidence plaintiff was recalled as a witness in his own behalf, and testified as to a certain order of $150, which he claimed defend- I 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. The referee, in his report, finds that the work, &c., set up in the complaint On the 1st of April, C. executed and delivered to L. a deed of said property, in pursuance of a contract to sell the same, in which he covenanted that the premises were free and clear of all incumbrances except a mortgage claim of T. for $2,500 which L. was to pay to T. From time to time afterwards and until March 12th, 1874, L. paid to T. divers sums on his mortgage. grantee, who assumes, in consideration of the grant, to pay the mortgage. Union Bank v. Bell, 14 Ohio St., 201; Green v. Kemp, 13 Mass., 515; Shufelt v. Shufelt, 9 Paige, 137; Morris v. Floyd, 5 Barb., 130. 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 paymon Pleas of Summit Co. against C.ment of the interest which had accrued and L. to enforce his lien for the balance due on the note, including interest at the rate specified. L. resisted so much of the claim as was usurious. The court found the balance due, including interest at the rate of ten per cent., to be $1,402.50, and decreed, upon failure of payment at a short day, the sale of the mortgaged prem ises. Upon further proceedings, the court decreed that as between themselves C. was bound to pay T. the sum of $275.20 and L. the balance, to wit, $1,126.80. prior to the date of the conveyance. But that the Court of Common Pleas erred in not charging C. with interest on the sum decreed against him from the date of the conveyance to the date of the decree. The rate of such accruing interest was six per cent., there being no agreement as to the rate of interest upon accrued interest. Motion overruled. ATTACHMENTS. DISSOLUTION FOURTH DEPARTMENT. Chamberlain, applt., v. The Rochester Seamless Paper Vessel Co., respt. Decided April, 1876. On petition in error to the District Court, by L.it was claimed that the Com- N. mon Pleas erred in holding that L. was bound by his contract to pay more than $2,500, and interest at six per cent., from April 1, 1869, and in not holding that C. was liable for interest on said sum of $275.20 from the same date. he District Court reversed the judg ment of the Common Pleas, and this proceeding is to obtain a reversal of the judgment of the District Court. Proceedings under the statute for the voluntary dissolution of a corporation must conform strictly to the statute. The appointment of a receiver in the proceedings, of the property of the corporation, before the report of the referee appointed under the order, was irregular and in no way vested property in receiver or prevented creditors from pursuing their ordi nary remedies. Held, That as between T., the mortgagee, and L., the grantee of the mortgagor, the latter must be regarded as purchaser of the equity of redemption merely, and as such he had no right to set up by way of defense that the note secured by the mortgage was usurious: that the defense of usury in such a case is personal to the mortgagor, and it plamtiff had procured judgment against waived by him cannot be set up his it, and had issued an execution and ; Appeal from order setting aside attachments, executions, &c. Defendant was a corporation, and had levied attachments on property on the ground that defendant had made an assignment of its property, &c. Proceedings had been commenced for a voluntary dissolution of the corporation, and a referee had been ap pointed, before whom there was to be a hearing, and the notice required by statute had been duly published. Before hearing before the referee, and before his report, a receiver was appointed by the court and by order vested with the title to all the property, and gave the bond required by statute. After this the order setting aside plain tiff's execution and attachment was made on the ground that the property was in receiver. Where a license has been given by one or more of several owners in common of letters patent, the remedy of the others is by action for an account for whatever has been received. This action was brought by plaintiff, who was the owner of an undivided interest in a patent, to recover for the use of it by defendant without the consent, license or permission of plaintiff. Defendant demurred. E. P. Hart, for applt. P. Dexter, for respt. Held, That the action being simply for the infringement of a patent and for damages, that the United States and it could not be maintained in the courts had exclusive jurisdiction of it State courts, 37 N. Y., 119; 3 Com., 9, and that the demurrer was properly sustained. other actions in which patent rights The license of one or more of seve Held, That the appointment of the receiver before hearing before the referee, was irregular, and no property vested in him, and that his appoint-diction of actions upon contract and The State courts will entertain jurisment in no way interfered with the rights of creditors to pursue their ordinary legal remedies. The proceeding was not an action, and the court had no right to appoint a receiver except in ral owners in common of letters patent conformity to the statute. There is no 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 appointment in this case was irregular. 2 Curtis, 506; L. R. 1 Ch. Ap. 29. ever may have been received by them. Pitts v. Hall, 3 Blatch., 201, distinguished. Order reversed. Opinion by Smith, J. Where plaintiff delays for several 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 A. Cardozo, for applt. will not prevent defendant amending his answer. S. Jones, for respt. On appeal. Appeal from order allowing an amendment of defendant's answer. Plaintiff brings this action for the specific performance of a contract, and for damages for its non-performance. It appears that the defendant employed an auctioneer to sell certain lots of land under definite instructions. At the sale, plaintiff bought in the lots, but defendant claiming that the auctioneer had violated and exceeded his instructions, refused to execute the necessary deeds. This action was commenced in May, 1869. In September, 1870, judgment by default was entered on the report of a referee. This was afterwards opened, on terms, and defendant allowed to answer, issue being as of September 27, 1870. Nothing further appears to have been done in the matter until April, 1875 when the cause was placed on the Special Term calendar. When reached the cause was postponed, plaintiff not being ready, and on condition that plaintiff consent to refer it. Defendant in his first answer admitt. ed that the lots wers put up for sale, but denied that plaintiff purchased them. Fearing that that form of an answer would not raise, as an issue, the auctioneer's alleged transgression of authority, defendant now seeks, to amend by putting that fact clearly in issue. Plaintiff opposes this application on the ground of defendant's intentional laches, and for the further reason that if defendant succeeds in establishing that defence, plaintiff will now have no remedy against the auctioneer because Held, That plaintiff bases his opposition principally on defendant's alleg ed laches, but as the delay seems to have resulted from the mutual indisposition of both parties to proceed, plaintiff's objection loses its force. The action was practically suspended during several years, a part of the time in the hope that a settlement might be effected. During this delay, by reason of the auctioneer's death and the statute of limitations, plaintiff has lost whatever remedy he might have had against him for entering into an unauthorized contract, but this loss is so clearly attributable to plaintiff's own neglect in the prosecution of his action that the defendant should not, on that account, be deprived of his amendment. No reason appears in the papers for the supposition that defendant intentionally delayed making this application after its propriety was discovered. Order aflirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. STATUTE OF LIMITATIONS. N. Y. COURT OF APPEALS. Smith, survivor, &c., applt., v. Ryan, respt. Decided June 6, 1876. Where notes are transferred by in- |