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but the criticism is without much force, because the names would have been at once revealed to them if defendants had expressed their willingness to accept the terms offered, and when information came to them through Mr. Seward of an opportunity to sell at an advantageous figure it was incumbent upon the defendants to exhibit some interest in the proposition and at least to meet the proposal in the spirit of men responsive to their duty to protect the estate of the deceased partner. The excuse is now given upon the stand by one of the surviving partners that the price offered, $100,000, was so much greater than the actual value of the property that he did not take the offer seriously. That, however, will hardly suffice.

The plaintiff is entitled to ultimate indemnity against the loss that would come to her by reason of the failure of the defendants to perform their legal duty in the premises. She must at the end of the liquidation receive the $25,000 which would have been paid to her had the sale gone through, together with interest from October 1, 1909, less such moneys as were paid over to her after her husband's death, and less whatever balance stood against her husband on an adjustment between him and his partners at the date of his death. In addition, for the year October 1, 1908, to September 30, 1909, she is entitled to a fair share of the profits of the business.

[4] The general rule undoubtedly is that surviving partners are not entitled to anything for their services in liquidating the business of the firm. But here was a business which, pending liquidation, had to be carried on in order to avoid great loss; for if the doors had been locked, and the publication of the papers suspended, the good will of the business, which is a large factor in its value, would have been practically destroyed. The plaintiff and her counsel expected the business to be continued until an adjustment could be reached or the business could be advantageously sold; and there is nothing to warrant a finding that an advantageous sale could have been effected earlier than the fall of 1909. The plaintiff, therefore, must be deemed to have consented to a continuance of the business for that first year.

The rule denying compensation to surviving partners for liquidating the firm business does not forbid equitable allowances for services rendered by the surviving partners in carrying on the business, where it is continued with the consent of the personal representatives of the deceased, payable out of the profits earned during such continuance. Burgess v. Badger, 82 Hun, 488, 31 N. Y. Supp. 614; Robinson v. Simmons, 146 Mass. 167, 15 N. E. 558, 4 Am. St. Rep. 299. Therefore I think an allowance should be made in favor of the defendants for editing the papers and running the business for that year.

In November, 1908, the surviving partners voted themselves salaries of $2,000 each per annum, to commence October 1st, the date of Henry D. Peck's death. This was not done with the consent of the plaintiff, and the arbitrary amount fixed by them would not control; but it does not seem to me that $2,000 each is an excessive amount to allow the three surviving partners for the year ending September 30, 1909, to be paid out of the profits for that year. The plaintiff is entitled to receive one-fourth of the remainder of that

year's profits. As a sale should have been made by October 1, 1909, no allowance can be granted for services rendered by the surviving partners in carrying on the business subsequent to that date.

Other matters of minor importance are to be considered, and the. exact state of the accounts determined in the findings. The intention of the court is to indemnify the plaintiff to the full amount which she would have received, had the sale gone through which the defendants, in violation of their duty, refused to make. This being assured, the court is ready to afford to the defendants every reasonable opportunity to bring the matters of the firm to a liquidation, or to purchase the interest of the plaintiff at that figure, subject to the equalizations referred to, which seems to be permissible under section 1947 of the Code of Civil Procedure.

Counsel may prepare findings, and will be heard upon a settlement thereof, and as to the form of an interlocutory decree, on five days' notice. The plaintiff will be allowed costs of the action.

HUMANE SOCIETY V. RYAN. (Supreme Court, Special Term, Monroe County. August 9, 1912.) PARTY WALLS (8 8*)-CUTTING OPENINGS—INJUNCTION.

Where a party wall agreement provided that, before the wall could be built into by plaintiff, he should pay one-half the cost of constructing it, the fact that plaintiff had paid no part of such cost, and had not used the wall, and that there was considerable open space between it and the buildings on plaintiff's land, did not preclude plaintiff from restraining defendant from cutting windows in the wall, and from compelling the filling up of openings therein. .

[Ed. Note.-For other cases, see Party Walls, Cent. Dig. 88 24 41; Dec. Dig. $ 8.*] Action by the Humane Society against Matthew A. Ryan to restrain defendant from cutting windows in a party wall, and to compel him to fill up openings already made therein. Granted,

Fred L. Dutcher, for plaintiff.
Eugene J. Dwyer, for defendant,

SUTHERLAND, J. In 1881 an agreement was made between Babette Wolff, the predecessor in title of the plaintiff, and Francis W. Little, predecessor in title of the defendant, for the erection by Little of a 16-inch party wall on the boundary line between the premises owned by them, respectively, fronting on St. Paul street in the city of Rochester, 8 inches thereof on each side of the dividing line, and that, in case Mrs. Wolff desired at any time to use said party wall, she should pay one-half the cost thereof, to wit, $1,614. No part of said sum has been paid. Little built the wall according to agreement 16 inches thick, solid throughout, with no openings; and thus the wall remained for 30 years, until, in 1911, the defendant, who had recently purchased the Little property, broke 24 openings in the wall and put in windows. The wall had not been utilized for building purposes by *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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Mrs. Wolff or any of those succeeding to her title, and there is con-
siderable open space between the wall and the buildings upon plain-
tiff's land.

This action was brought to restrain the cutting of any further win-
dows in the wall and to compel the defendant to restore the wall to
its former solid condition. The case seems to be practically parallel
to Cutting y. Stokes, 72 Hun, 376, 25 N. Y. Supp. 365, affirmed by
the Court of Appeals, 148 N. Y. 730, 42 N. E. 722, in which it was
adjudged that the defendant, who had cut openings in a party wall,
should be compelled to restore the wall to its former solid condition.
In the Cutting Case, as here, the plaintiff had made no use of the
party wall, and the party wall agreement provided, there as here, that,
before the party wall could be built into by plaintiff, the plaintiff
should pay one-half the cost of constructing the wall, which sum had
not been paid. Therefo the contention of defendant in this case
that plaintiff has no standing to complain of breaks in the party wall
because of the nonpayment of one-half the cost is not well taken.

Judgment should be awarded restraining the defendant from cutting any further openings, and compelling him to restore the wall to its former solid condition.

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(76 Misc. Rep. 300.)

BOCOVSKY V. BUFFALO & L. E. TRACTION CO.

(Chautauqua County Court. April, 1912.) 1. STREET RAILROADS ($ 117*)-INJURIES TO TRAVELERS-PASSING STANDING Car--CONTRIBUTORY NEGLIGENCE.

I'laintiff, a physician, was following a street car which stopped to take on a passenger. After looking ahead and observing no obstacles, he turned to the left in accordance with the law of the road to go round the car, when he saw another car approaching about 100 feet away, without warning, and at a speed of more than 20 miles an hour. He endeavored to avoid collision, but was struck by the car and injured. Held, that since it was the duty of the street railway company, on approaching cars standing on the street receiving and delivering passengers, to have the approaching car under control in order that no injury be done the public, and plaintiff was entitled to presume that defendant would observe such rule, he was not negligent as a matter of law in going on the track.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. $8 239–

257; Dec. Dig. § 117.*] 2. STREET RAILROADS (8 117*)—INJURIES TO TBAVELERS-CONTRIBUTORY NEGLIGEXCE-KNOWLEDGE.

Where plaintiff was struck and injured by a street car running at high speed, past a standing car receiving passengers, he was not negligent, as a matter of law, in driving on the track behind the standing car, because he had knowledge that on prior occasions defendant had driven its cars past standing cars at high speed.

[Ed. Note.--For other cases, see Street Railroads, Cent. Dig. 88 239 257; Dec. Dig. $ 117.*] Appeal from Municipal Court of Dunkirk. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date. & Rep'r Indexes

Action by Vacil D. Bocovsky against the Buffalo & Lake Erie Traction Company. From a judgment of the Municipal Court of Dunkirk in favor of plaintiff, defendant appeals. Affirmed.

Kenefick, Cooke, Mitchell & Bass, for appellant.
Warner & Woodin, for respondent.

OTTAWAY, J. This is an appeal to the County Court of Chautauqua county from a judgment of the Municipal Court of Dunkirk, awarding the plaintiff $750 for injuries to himself and automobile upon a complaint alleging negligence upon the part of the defendant. The plaintiff is a physician and surgeon practicing his profession in the city of Dunkirk, N. Y. The defendant is a street railroad company operating a local and interurban electric railway between Dunkirk and Fredonia and other points. The defendant has two lines of track upon Central avenue, a main thoroughfare connecting Dunkirk and Fredonia. These tracks are located in the center of the street. The accident occurred within the village of Fredonia. Fredonia is an incorporated village containing a few thousand people.

On the morning of the accident the plaintiff was driving his automobile shortly after 11 o'clock up Central avenue from Fredonia toward Dunkirk. He was driving his car between the tracks and the easterly curb of the paved street at a rate of speed between six and eight miles an hour. As he was proceeding in this manner, the car of the defendant stopped to receive a woman who came from the easterly curb and was standing between the tracks of the defendant and the easterly curb apparently intending to take the car. A delay occurred, and the plaintiff, after looking ahead and observing no obstacles, turned to the left to pass defendant's car. As he came upon the westerly track of defendant's railway, he saw a south-bound car 100 feet away approaching him rapidly. The car gave no warning of its approach and was traveling at a speed of upwards of 20 miles an hour. The plaintiff immediately swung his car to the right and endeavored to avoid a collision with the on-coming car. He was struck by the car and thrown upon the pavement and injured, and brings this action for the recovery of damages sustained.

[1] Upon the argument the principal contention made by the defendant seeking a reversal of the judgment rendered by the Municipal Court was that the plaintiff was guilty of contributory negligence in attempting to pass the car of the defendant to the left while his view was obstructed by the car in front of him. The question of contributory negligence was for the trial court, and the facts and circumstances of this case amply sustained its conclusion. In turning to the left to pass the car, the plaintiff was observing the law of the road, and the evidence discloses that before turning to the left he looked and listened and neither saw nor heard the south-bound car. It was the duty of the defendant in the operation of its cars in approaching cars standing upon the street receiving and delivering passengers to have the approaching car under control in order that no injury be done the public. The plaintiff had a right to presume that the defendant would observe this rule of care and caution, and, it appearing that

the north-bound car had stopped at a designated place for the reception of passengers, the plaintiff had a right to assume that a car approaching from the north on the west-bound track would be under the control of its operator. Brooks v. International R. R. Co., 112 App. Div. 555, 98 N. Y. Supp. 765, affirmed 187 N. Y. 574, 80 N. E. 1105; Mapes v. Union R. R. Co., 56 App. Div. 513, 67 N. Y. Supp. 358; Stevens v. Union R. R. Co., 75 App. Div. 602, 78 N. Y. Supp. 624; Schron v. Staten I. EI. R. Co., 16 App. Div. 111, 45 N. Y. Supp. 124; Tupper v. Metropolitan St. R. Co., 36 Misc. Rep. 819, 74 N. Y. Supp. 868; Binns v. Brooklyn Heights R. R. Co., 89 App. Div. 359, 85 N. Y. Supp. 874.

[2] The defendant further insisted, in support of its contention that the plaintiff was guilty of contributory negligence, that the plaintiff had knowledge that on prior occasions the defendant had driven its cars past standing cars at a high rate of speed, and that, being possessed of this knowledge, he was guilty of contributory negligence in attempting to pass the standing car under the circumstances revealed by the testimony of this case. In support of its contention it cites the case of Magar v. Hammond, 171 N. Y. 377, 64 N. E. 150, 59 L. R. A. 315, as authority.

In determining the applicability of this authority, it is necessary to bear in mind the frequent admonitions of the Court of Appeals that the opinion in any case must be limited to the facts involved and should not be extended to cases where the facts are essentially different. Crane v. Bennett, 177 N. Y. 106, 69 N. E. 274, 101 Am. St. Rep. 722. The rule cited by the defendant cannot be said to apply to the facts of this case. The plaintiff was traveling upon a public highway subject only to such rules of care and caution as an ordinarily prudent man under like circumstances would exercise, having the right to assume that all persons using this highway would observe the same rule. The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both, even though such other has once conducted himself in a contrary manner. Newson v. N. Y. C. R. R. Co., 29 N. Y. 383.

The judgment of the trial court is affirmed, with costs of this appeal. Judgment affirmed, with costs.

(76 Misc. Rep. 303.)

NEAR et al. v. SHAW et al

(Chautauqua County Court. April, 1912.) 1. WILLS (8 188*)—MUTUAL WILL-REVOCATION.

Where a widow and her brother executed mutual wills, and the widow thereafter married, the marriage operated as a revocation thereof under Decedent Estate Law (Consol. Laws 1909, c. 13) $ 36, providing that a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.

[Ed. Note-For other cases, see Wills, Cent. Dig. 449; Dec. Dig. $

188.*] **For other cases see same topic & $ NUMBER 1R Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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