plaintiff was injured could have been avoided by proper care and diligence is a question for the jury.

This action was brought to recover damages for injuries sustained by plaintiff at a railroad crossing on defendant's road. The plaintiff testified that at the time of the injury she was in her seventeenth year, and was passing along the sidewalk of Elk street, in the village of Dunkirk, north of defendant's tracks, some five in number; that she had crossed two of them and looked both ways to see if a train was approaching, and saw an express train coming west on the main track further south; that she stopped to let this train pass, standing within about one foot of another track. She first stated that she remained standing between the two tracks about ten minutes, but she afterwards said it was a shorter time, waiting for the express train to pass, and while thus waiting she was hit by the tender of an engine which had backed out and came along in an opposite direction from the express train, at the rate of eight miles an hour; that this train sounded no whistle, rung no bell, and gave none of the usual warnings of its approach. The evidence showed that the rear of the express train had just passed Elk street, when, at the same instant, the engine of the other train came the other way. It did not appear that plaintiff had any means of determining how long she stood between the tracks. A witness on the part of the plaintiff testified that she stood there about a minute, and other evidence showed it must have been a very short time. The Court directed a non-suit, on the ground that plaintiff was guilty of contributory negligence.


A. P. Laning, for applt.
Murray & Pattison, for respt.

sion, which, from all the circumstances of the case, may have been entirely erroneous. It was fair to presume that a very short time had elapsed before plaintiff was struck, and that plaintiff could not have turned and avoided the accident. The time she remained between the tracks, and whether the accident could have been avoided by the exercise of proper care and diligence, should have been submitted to the jury.

Order of General Term, granting motion for a new trial, affirmed. Opinion by Miller, J.

Held, error: That plaintiff's testimony as to the length of time she stood between the tracks should not be considered as absolutely accurate, conclusive and controlling, and was at most but a mere impres


Harris, applt., v. Equitable L. As. Soc.
of U. S., respt.

Decided February 15, 1876.

renewal of a life insurance policy, which had been forfeited by non-payment of premiums, procured by fraud, is void, and an offer of judyment for the amount of the money received as premiums at the time of renewal, with interest and costs, after suit brought, is a sufficient tender to allow the company to disaffirm. This action was brought upon a policy of life insurance issued by the defendant, which provided that if any declaration in the application upon which it was issued should prove false, then the policy should become null and void. The policy was forfeited by reason of a failure to pay the premiums due in September and December, 1869, and March, 1870. In February, 1870, the assured had a severe attack of inflammatory rheumatism, which resulted in disease of the heart, and of which she died in April following. On March 28, 1870, plaintiff went to defendant's office and tendered the premiums due and asked to have the policy renewed, stating that the assured was in good health, that she had not been sick since she was ex


amined for insurance, and signed a paper TAXATION. which stated that she was as well as when insured and in as good insurable condition N. Y. SUPREME COURT, GENERAL TERM. as when examined. Defendant accepted the premiums tendered, and gave a receipt continuing the policy in force. After the expiration of sixty days, defendant having refused to pay the amount insured, this action was commenced. Afterwards and before answering defendant served an offer of judgment for the amount of the premiums paid in March, 1870, with interest and costs. This offer was refused. The judge held that defend ant was bound, upon discovery of the fraud, to return the premiums and to disaffirm the new contract, and never having done so, it was liable upon the policy, and directed a verdict for plaintiff,

A. R. Dyett, for applt.

Geo. De F. Lord, for respt.

Held, error: That plaintiff's fraudulent representations avoided the policy; that the offer to allow plaintiff to take julgment for the amount of the premiums and interest thereon was a substantial compliance with the rule requiring a party seeking to disaffirm a contract on the ground of fraud, to return or offer to return all that he has received under the contract within a reasonable time after

discovery of the fraud; if the offer had been accepted, all parties would have been restored to their former condition and equity done between them, and this is all that is required. 50 N. Y., 670. That it was no answer to say that the offer of judgment, not having been accepted within ten days, was to be deemed to have been withdrawn, as it was plaintiff's fault if he did not accept it.

Order of General Term, reversing ment for plaintiff, affirmed.

Opinion by Miller. J.


People ex rel Utica and Black R. R. R. Co., v. Shields et al..

Decided January, 1876.

In a certiorari where the collection of
a tax in the hands of the City Treas
urer is stayed, the Treasurer was a
proper party. So also, all the asses-
sors of the city.

The relators were liable to be taxed for
personal property at actual value of
stock in same manner as other per-
sonal property.
Failure of relators to furnish the as-
sessors with the statement required
by law, left it with the assessors to
pass their judgment as to value of
property upon same basis as upon in-
dividual property.

The relator is a Railroad Company in this State, with their principal office and a large amount of personal property in the Second Ward of the city of Utica.

In the year 1875, the assessors of said city assessed said company, on its capital stock, as personal property in said Second Ward, the sum of $40,000, and entered same in the roll for that year under the head of rolling stock.

The said Railroad Company did not furnish to the assessors the statement

showing the real estate owned by them, the amount of their capital stock and the amount paid in and secured to be paid excepting sums paid for real estate as required by Sec. 2 of title 4, Chap. 13, vol.

3 of the R. S.

The officers of the company appeared before the said assessors and asked to have said assessment stricken from the roll, on the ground that the debts owing by the company exceeded the true value of the judg-personal property of said company. The

officers of the Railroad Company did not give to the assessors any information as to the amount and value of its capital or the cost of its real estate, or any information from which the assessors could de

termine its surplus profits or reserved owned by said company. The statement
funds, or the true amount of its capital was not sufficient.
stock taxable as personal property.

Writ of certiorari dismissed.
Opinion by Smith, J.

The assessors refused to strike off the assessment, and this certiorari was brought.

Held, That the certiorari was properly brought against the assessors and city treasurer. The tax roll had, by resolution of the Common Council, been placed in the hands of the city treasurer, and the writ stayed the collection of the tax.

The collector was not a necessary porty. That the assessors committed no error. That the Railroad Company was liable to be assessed and taxed for personal property at the actual value of their capital stock and in the same manner as other personal property. (People v. Assessors of Brooklyn, 39 N. Y., 81.)

In re Malone v. Clinton.
Decided January 6, 1876.


judgment creditor, whose judgment was a lien against his debtor's real estate, prior to the latter's being declared an habitual drunkard, cannot be postponed on a sale of the real estate in the payment of his claim till after the costs of the estate are paid.

That had the company furnished to the assessors the statement showing the real estate owned by them, the amount of its capital stock and amount paid in and secured to be paid in, excepting the sums paid for real estate and other matters as required by law it would have been the duty of the assessors to have adopted the data or facts embraced in such statement in making their assessment. That by reason of the failure of the company to furnish such statement, the assessors had no data to follow in making such assessment, and they were justified in forming their judgment upon the best information in their possession.

Error to the Court of Common Pleas, No. 1, of Alleghany County.

This is an appeal, by one Malone, from a decree of the court, distributing the fund raised by a sale of the real estate of Wm. Clinton, an habitual drunkard. The sale was made by his committee on leave of the court. The appellant claims the money should be applied on a judgment in his favor, which is the prior lien on the land sold. After the entry of the judgment, Clinton was, by inquisition, duly found to be an habitual drunkard. It does not appear that the court then made any order in regard to the payment of the costs attending the inquisition, as is made its duty by the second section of the Act of 16th of April, 1849, Purdon's Digest, 881, pl. 13. These costs appear to be unpaid. There now appearing to be no personal estate out of which they can be paid, the auditor reported, and the court decreed, that they be paid out of the pro

That, although the affidavit presented by the company to the assessors showing the indebtedness of the company may ceeds of the real estate. The fund is have been supposed to have been suffi- insufficient to pay the judgment of the cient, it was not and did not bind the assessors, and such company were not entitled to have their debts deducted from such assessment on any such showing. The indebtedness they claimed to deduct may have been for actual valuable property purchased and now held and

appellant. If these costs are thus paid it takes that amount from the appellant which he would otherwise receive on his judgment. All the assignments involve the correctness of giving a preference to the payment of these costs.

Held, That the judgment creditor could

not be divested of his vested lien; that he had a prior claim, which must be paid in preference to the costs.

Messrs. O'Conor, Carter & Peckham for plaintiffs.

Messrs. D. D. Field, Field, & Deyo,

Decree reversed, and distribution or- and Edelstein for defendant Tweed. dered accordingly.

Opinion by Mercur, J.

Westbrook, J. Section 265 of the code provides for a motion for a new trial before judgment, and requires it to be heard in the first instance, "At the Circuit or Special Term, except that when exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard in the first instance at the General Term, and the judgment in the mean time suspended." Its language is incompatible with a hearing at the General Term in the first. The Special Term has no power to or- instance, when a motion at Special Term der a motion for a new trial, upon has been entertained and decided. There exceptions, to be heard in the first in-is, it seems to me, an absolute want of stance at the General Term, after power to send the motion to the General having entertained a motion for a Term in the first instance, when the Spenew trial, upon the judge's minutes; and it makes no difference that the cial Term has passed upon the applicalatter motion was based upon question. And this has been expressly held. tions of fact; the code allows no (Hastings vs. McKinley, 3 Code Reportseparation of the application. er 10; Morgan vs. Bruce 1 Code ReUpon a motion for a stay of proceed- porter, new series, 364; Price vs. Keyes ings, without security, pending an 8 N. Y. Sup. Court, page 177.)

less a motion for a new trial. The 265th

appeal, the Court should be possessed of all the facts and circumstances There was, in this cause, a motion for relating to the appellant's means and a new trial under section 264 of the code property; in considering such an upon the judge's minutes, and that was application, the recovery had is pre- denied. It is true that such motion was sumed to be correct, and the posses- based only upon questions of fact, and sion thereof ought not to be jeopard- not upon exceptions; but it was none the ized by tieing appeilee's hands. The difficulty of the legal questions involved, the length of the trial, the labor of preparing for trial, the amount of the verdict, the number of motions made in the course of the proceedings, are considered in determining whether a case is " difficult or extraordinary" for the purpose of fixing an allowance.



The People of the State of New York against William M. Tweed and others.

Decided Mar. 21st, 1876.

Motion on the part of plaintiffs for an extra allowance, and on the part of the defendant, Tweed, that the motion for a new trial be heard in the first instance at General Term, pursuant to section 265 of the code, or for a stay of proceedings, pursuant to section 348 of the code.

section of the code allows no separation of the application. The existence of exceptions is necessary to the order which sends the motion to the General Term in the first instance, but the fact that they have been taken does not authorize the Circuit or Special Term to send them to the General Term and retain the motion upon the facts for its own disposal. On the contrary, when the order to hear at the General Term is made, the Special Term loses its control of the cause, and when the Special Term hears and decides the application, the power to send to the General Term in the first instance is gone.

This conclusion disposes of the motion cases, when a defence has been interfor a suspension of judgment upon a pure- posed, or in such cases where a trial has İy legal ground, without any considera- been had, and in actions or proceedings tion of the propriety of such action, which for the partition of real estate, the court will be presently considered in examining may also, in its discretion, make a further the second motion for a stay of proceed- allowance to any party, not exceeding five ings after judgment, pursuant to section per cent. upon the amount of the recovery 348 of the code, pending an appeal to the or claim, or subject matter involved." General Term from the judgment and This action is conceded to be within the from the order denying the motion for a spirit and the letter of the statute. It new trial. certainly is both "difficult" and "extraordinary "--difficult, not only because of the legal questions involved, but also on account of the very great labor and preparation which the development of the facts upon the trial involved, and the length of time occupied with the trial itself; and

It is undoubtedly true that section 348 authorizes the Court or a judge thereof to stay proceedings upon the appeal upon such terms as shall be just, but the exercise of this discretion can only be intelligently exercised upon proof showing the condition of the defendant's property. extraordinary when considered with refer

Whilst it is true that I regard this cause as presenting difficult and extraordinary questions, worthy of review, yet I cannot, and do not, assume that errors have been in fact committed, and that the r covery is wrong. On the contrary, moderate selfrespect requires me to believe that the plaintiffs are entitled to the fruits of their recovery, and that their possession thereof should not be jeopardized by arbitrarily sary. The trial itself also consumed sevtieing their hands. If there is no property eral weeks, and from the number of counto be reached, the judgment and execu- sel employed, I do not think that an altion will do no harm; if there is, and ex-lowance of one per cent. is unreasonable. ecution is necessary to recover it, then

such execution should not be stayed, with- SALE. DELIVERY.

out security sufficient to preserve it. When an appeal shall have been taken, the Court, or a judge thereof, upon an application showing all the facts, will be able to exercise an intelligent discretion, which, in the absence of such proof, it is impossible for me to do.

There can, however, be no objection to the time which the defendant needs to make a case. Ninety days is not unreasonable, but such time is not to operate as a stay of proceedings.

The application for an extra allowance remains to be disposed of. This is founded. upon section 309 of the Code, which provides: "In difficult or extraordinary

ence to the character of the issues and the amount of the verdict, and the number of motions argued previous to the trial, two of which were only finally determined by the Court of Appeals. The preparation for trial must have occupied the time of counsel for months, and the employ. ment and compensation of proper accountants for a long time was also neces


REVENUE LAWS. SUPREME COURT OF ILLINOIS. Straus et al. v. Minzesheimer. Decided February, 1876. Where the vendor of personal property, such as cigars, has done all in his power to complete its delivery to vendee, and thereafter exercises no control over and asserts no possession in the property, the vendee's title is perfect. The relative rights of vendors and purchasers of cigars are not affected by the act of Congress of July 20, 1868, requiring the boxing and stamping of cigars before sale, so as to invali

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