Held, That the judgment entered by default July 3, 1883, was a final judgment within the provisions of 1240 of the Code, and an execution on such judgment was regular. Defendant having accepted the favor granted was bound by the conditions imposed, and on the determination against him of the defense interposed under the provisions of the order, the conditions upon which the leave was granted became binding on him. The subsequent judgment entered did not have the effect of vacating the original judgment. That stood under the terms of the order, and the period during which no execution was to issue having expired, we can see no reason why the judg ment originally entered should not be enforced in the way provided by law. demurrable under § 897 of Chap. 410. Laws of 1882, because it demands that the assessment be vacated as well as that the money be repaid. The complaint alleged that plaintiff's property situated in the city of N. Y. had been assessed by defendant for improvements to Tenth avenue; that this assessment was absolutely void but that its invalidity did not appear of record, but had been declared by the Court of Appeals in proceedings affecting other property; that defendant had advertised plaintiff's property for sale on account of the non payment of said alleged assessment; that plaintiff had paid said assessment under compulsion supposing same to be legal and valid; and that the repayment of the sum so paid had been demanded of the comptroller of the Order affirmed, with $10 costs city of N. Y. and disbursements. Opinion per curiam; Sedgwick, Ch. J., and Ingraham, J., sitting. ASSESSMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. John M. Burke, respt., v. The Mayor, etc., of N. Y., applt. Decided Dec. 31, 1886. An assessment upon real property in the city of N. Y. which is absolutely void may be disregarded and an action to recover back money paid thereon may be maintained against said city without first having said assessment vacated in a proceeding taken for that purpose. When the complaint in such an action contains appropriate averments for the recovery of the money so paid, it is not The relief demanded was that the assessment should be declared a nullity and absolutely void and that plaintiff have judgment for the recovery of the money paid thereon. Defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, for the reason that $897 of Chap. 410, Laws of 1882, expressly forbid an action of any sort for the vacation of any assessment. George S. Coleman, for applt. Held, That the action was not controlled by the statute of 1882, for the reason that it appears by the complaint that the assessment itself was void and that the pay ment was coerced under its apparent authority. That it was void was held in Matter of Deering, 85 N. Y., 1, and being wholly void it was not necessary that it should be vacated by an order of the court to entitle plaintiff to recover back the amount paid upon the assessment. But the proceeding through which the assessment was made could be wholly disregarded and an action brought against the city to recover back the money. 71 N. Y., 495; 31 Hun, 550; 101 N. Y., 240. That it was no objection to the right of plaintiff to maintain the action that more than this may have been included in the demands for judgment, for as the facts were admitted by the demurrer, plaintiff was entitled to recover the sum of money paid by him. Judgment overruling demurrer affirmed. Opinion by Daniels, J.; Davis, P.J., and Brady, J., concur. EVIDENCE. PHYSICIANS. N. Y. COURT OF APPEALS. McKinney, respt., v. The Grand St., P.P. & F. RR. Co., applt. Decided Feb. 8, 1887. After the patient has once removed the bar of secrecy and made the privileged information public the right to further object to its admission is waived; so held, where plaintiff on a previous trial had called the physician and his testimony was given in her behalf, and the same testimony was objected to by her on this trial. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. Upon the trial defendant called one C. as a witness, and proposed to prove by him the injuries claimed to have been suffered by plaintiff in consequence of the collision in question, as learned by him upon a personal examination of plaintiff when visiting her as a physician. This evidence was excluded. It appeared that upon a previous trial C. had been called by plaintiff and had testified fully in her behalf as to all the facts bearing upon her physical condition as affected by the accident, learned by him in his attendance upon plaintiff. Samuel D. Morris, for applt. Anthony Barrett, for respt. Held, That the evidence was competent and its exclusion error. The intent of the statute in making such information privileged is to inspire confidence between patient and physician, and the bar of secrecy having once been removed by the patient and the information having lawfully been made public the right to object further thereto was waived. 103 N. Y., 573; Wattrou's Whart. Maxims, 17, p. 49; 11 Wend., 442; 9 N. Y., 371. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. Opinion by Ruger, Ch. J. All concur, except Danforth, J., dissenting. HUSBAND AND WIFE. TORT. Sylvester S. Mangum et al., respts., v. Richard W. Peck et al., applts. Decided Dec., 1886. It seems, That there is now no occasion in this State for joining the husband with his wife in an action for her torts and that a husband is not liable for his wife's personal torts. Held, The liability of the husband to be joined as a co-defendant with his wife in actions for her personal torts and trespasses resulted from the suspension of her legal existence during her coverture. A married woman could not be sued separately, and a party sustaining an injury from her wrongs would have been without remedy if the husband could not be joined with her in an action, and for that reason the hus Appeal from judgment in favor band was joined. of plaintiffs. Action against husband and wife for the recovery of damages resulting to plaintiffs from the fraud of the wife alone. She presented to plaintiffs a bond and mortgage for $4,000, purporting to have been executed by her husband, but which were in fact were in fact forgeries, and under false representations that they were genuine instruments induced plaintiffs to loan the money thereon. He There was no claim of any participation of the husband in the transaction in any manner. did not instigate or authorize the fraud, had no knowledge of its execution until after its consummation and received none of its proceeds. The action is prosecuted on the theory that the torts and wrongs of the wife committed during coverture are imputed to the husband and that an unqualified liability is cast upon him by law for the resulting consequences. H. A. Meyenborg, for applts. Evarts, Choate & Beaman, for respts. It would seem now that no such reason exists in this State, and that there is no occasion for joining the husband with his wife in an action for her torts because she may be sued alone, her common law disability in that respect having been released by modern legislation tending to the emancipation of the wife from the husband's control. We are inclined to that view and to hold that the simple entry into the marriage relation can entail upon a husband no consequences such as plaintiffs endeavor to force upon the husband in this action. But the question has been decided both ways by the Supreme Court and will not be set at rest until it is finally determined by the Court of Appeals, and as it is think it better to facilitate a diwell presented by this case we rect appeal to the Court of Appeals by an affirmance of this judgment. Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P.J., concurs. PLEADING. GENERAL ASSIGNMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Nathaniel Hooper et al., respts., v. C. McCulloch Beecher et al., applts. Decided Dec. 31, 1886. Action by a judgment creditor of the assignors to set aside a general assignment for the benefit of creditors. The complaint alleged: "That after the contracting of the debt upon which plaintiff's judgment was recovered, the defendants, B., J. and B., on or about the 17th day of May, 1884, assigned all their property to the defendant Bartlett, in trust for the payment of their debts, which said assignment was recorded in the office of the clerk of the city and county of N. Y., on the 17th day of May, 1884," and after other allegations the complaint further averred, "That the said assignment was made by the defendants, B., J., and B., with the intent to delay, hinder, and defraud their creditors." The answers of defendants denied the last allegation of the complaint quoted, but were silent as to that previously quoted. Held, That the due execution of the assignment was an established fact under the pleadings and that a judgment setting aside said assignment, rendered upon a trial at which the only evidence going against the validity of the assignment was to the effect that it was executed by one partner of a firm without authority from the others and had not been ratified by them, and based upon findings that the said assignment had not been executed with the assent or ratification of all the copartners, could not be sustained. Appeal from judgment declaring void and setting aside a general assignment for benefit of creditors made by the firm of C. McCulloch Beecher & Co. The complaint alleged that defendants Beecher, Johnson & Vol. 25-No. 22. Baillie were copartners carrying on business in the city of New York under the firm name and style of C. McCulloch Beecher & Co., and after setting forth the recovery of a judgment against them by plaintiffs, the issuing of an execution thereon, etc., it proceeded to allege as follows: "That after the contracting of the debt on which the aforesaid judgment was recovered said defendants Beecher, Johnson & Baillie, on or about the 17th day of May, 1884, assigned all their property to defendant Bartlett in trust for the payment of their debts, which said assignment was recorded in the office of the clerk of the city and county of N. Y. on the 17th day of May, 1884," and after other allegations the complaint further averred "That said assignment was made by the defendants Beecher, Johnson & Baillie with intent to delay, hinder, and defraud their creditors." This last allegation so far as it averred fraudulent intent was put in issue by the answers of defendants, but the several allegations touching the making or execution of the assignment were admitted by not denying the same. Upon the trial the only evidence given tending to show any invalidity in the assignment was to the effect that it had been executed by one partner only and that the other partners had not authorized or ratified its execution. This evidence was objected to on the ground in substance that the pleadings established the due execution. The court, however, held that the question was an open one and received the evidence offered, and on such evidence found that the assignment was not executed with the assent or ratification of all the copartners and set it aside for that reason. C. E. Tracy and John V. B. Lewis, for applts. Franklin Bien, for respts. Held, That the pleadings presented an issue of fact upon the question of fraud, but that that issue was not tried at all. That there was no issue as to the making of the assignment, for the allegations of the complaint not being controverted by the answers were required "to be taken as true for the purposes of the action." Code Civ. Pro., §522. That defendants were not bound to meet any such issue and were deprived of the effect of the pleadings as controlled by the section of the Code, supra. That this was an error fatal to the judgment. Judgment reversed and new trial ordered. as not to interfere with travel on cross streets. Held, Sufficient to warrant the submission of the question of defendant's negligence. A railroad need only use ordinary care to prevent injury to people on the street; but if in running its trains it omits precautions which in the use of ordinary care it should have adopted to prevent an accident it is liable. The inability of a parent to hire a servant to look after a child is immaterial on the question of the parent's negligence if the child itself is guilty of none. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant, a corporation operating a railroad from the city of Brooklyn to Fort Hamilton, running its cars by means of a dummy engine. Its tracks are laid through Third avenue, which runs about north and south where it crosses 39th street at right angles. The injury occurred Sept. 3, 1883, in the afternoon. It was proved that one train of two cars had come up on the east track on its way to Brook Opinion by Davis, P.J.; Brady lyn, and had stopped at 39th street and Daniels, JJ., concur. for a moment or two, the dummy reaching somewhat beyond the north crossing of the street, while the rear end of the rear car was seventeen or eighteen feet south of the south cross walk. Plaintiff was standing on the curbstone near the southeast corner of the avenue and the street waiting for the train to proceed on its way to Brooklyn; about the time the train started she commenced to cross the street toward the west, and arrived where the up train was passing about the time the rear end of the second car was passing |