erty which the testator would not have made, if left freely to act his own pleasure, and this kind of influence will not generally be presumed, but must be proved, like any other fact, by him who alleges it. But there are certain cases in which the law indulges in the presumption that undue influence has been used, and those cases are where a patient makes a will in favor of his physician, a client in favor of his lawyer, a ward in favor of his guardian, or any person in favor of his priest or religious adviser, or where other close confidential relationships exist. Such wills, when made to the exclusion of the natural objects of the testator's bounty, are viewed with great suspicion by the law, and some proof should be required besides the factum of the will before the will can be sustained."

In recapitulation we find :

First. That Flavia M. Morley, a resident of the city of Rochester, county of Monroe, and state of New York, was of sound mind and memory on the date of the making of the will offered for probate herein. That she executed the same in the presence of two witnesses, and acknowledged the execution of the same, and declared the same to be her last will and testament, and requested the two witnesses to sign their names as witnesses thereto, which they accordingly did, in her presence and in the presence of each other.

Second. That the will offered for probate herein was not her free and unrestrained act and deed, but was procured through the undue and improper influence and fraudulent acts of Robert A. Van Allen upon her exercised over a series of years.

I find, as conclusions of law, that the will offered for probate herein should be denied probate, and the petition of the petitioners be dismissed, and the objections of the contestant as to undue influence and fraud of Dr. Van Allen in procuring the execution and publication of said will be sustained, with costs to the contestant as of a contest, to be paid out of the estate, and, as the executor of said will appears to have been an innocent party in connection with the undue influence exercised over the testator, costs are allowed to the executor as of a contest, to be paid out of the estate, together with allowance to the special guardian as of a contest for representing the incompetent party herein, to be paid out of the estate. All to be taxed and fixed upon the settlement of the findings and decree herein. The fees of the stenographer for furnishing minutes, amounting to $148.73, are to be paid as a disbursement, payable out of the estate.

Let formal findings be drawn in accordance with this decision, to be settled with the settlement of the decree and of costs and allowances, upon three days' notice.

BLOUNT v. PENNSYLVANIA R. Co.

(Supreme Court, Trial Term, Erie County. November, 1908.)

1. CARRIERS (§ 180*) CARRIAGE OF FREIGHT

Goods.

LIABILITY FOR DAMAGE TO

A carrier of perishable freight, under a bill of lading stipulating for through shipment and providing that only the carrier in whose custody the goods were at the time of the loss should be liable therefor, is liable only for negligence occurring on its own line.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. § 180.*]

2. CARRIERS (§ 185*)-THROUGH CARRIAGE OF FREIGHT-DAMAGES-LIABILITY -BURDEN OF PROOF.

Where freight is delivered to a carrier for through transportation, the shipper, suing the terminal carrier for damage to the goods, need only show that he delivered the goods to the initial carrier in good order, and that the goods were damaged on their arrival at the point of destination, and the burden is then on the terminal carrier to show that they were not injured while in its possession.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 835-844; Dec. Dig. § 185.*]

3. CARRIERS (§ 185*)-THROUGH CARRIAGE OF FREIGHT-DAMAGES-LIABILITY -BURDEN OF PROOF.

In an action against the terminal carrier of perishable freight for damages to the goods, evidence held to show that the damages did not occur on its line, relieving it from liability therefor.

[Ed. Note. For other cases, see Carriers, Dec. Dig. § 185.*]*

4. CARRIERS (§ 177*)-THROUGH CARRIAGE OF FREIGHT-LIABILITY OF TERMINAL CARRIER.

A terminal carrier is not responsible for any defect in the car in which the goods were shipped under a contract for through carriage, where it did not furnish the car and was not the owner of it.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 775-803; Dec. Dig. § 177.*]

Edward P. White, for plaintiff.
Frank Rumsey, for defendant.

Action by John W. Blount against the Pennsylvania Railroad Company. Judgment of dismissal.

WHEELER, J. It appears from the evidence that on the 27th of April, 1905, at a flag station called Glenn, on the Atlantic Coast Line Railroad, the plaintiff and several other parties made a shipment of a car load of strawberries to commission men in the city of Buffalo. The last carrier over whose route the berries were transported was the defendant, by whom the berries were carried from Sunbury, Pa., to the city of Buffalo. The shippers testify that the strawberries were in proper condition when shipped. It is conceded that on their arrival at the city of Buffalo they were worthless. There is no evidence of any delay in the transportation of the berries from Sunbury to Buffalo, or that the car could have been brought from the former to the latter place more expeditiously. It was conceded by counsel at the trial that

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 119 N.Y.S.-5

the ice compartments in the refrigerator car were nearly full on its arrival at Buffalo. The bill of lading provided as follows:

"It is agreed, and is part of the consideration of this contract, that this through line, or any railroad forining part thereof, will not be responsible for the injury to or decay of fruit, vegetables, or other perishable freight, caused by detention in consequence of an accumulation of freight at any point, or of the breaking down of cars or locomotives, or from any other cause over which (these) companies have no control. In issuing through bills to points on or over connecting lines, this company acts only as agent, and assumes no responsibility as principal. And in case of loss or damage, whereby there is liability, that company shall alone be liable therefor in whose custody the same may be at the time of such loss or damage. Conditions of this bill of lading are hereby accepted by

J. W. Blount, Shipper,

"J. H. Loud, Agent." The only possible conclusions to be reached from the evidence are that either the car was not in a proper condition to receive the berries when shipped, or there was a failure to re-ice the car on the part of some one of the carriers constituting the connecting lines, before the delivery of the berries in the city of Buffalo. While a carrier, in cases like this, is only liable for negligence occurring on its own route (Sherman v. Hudson R. R. Co., 64 N. Y. 254; Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; Canfield v. Baltimore & Ohio R. Co., 75 N. Y. 144; Farnsworth v. N. Y. C. & H. R. R. R. Co., 88 App. Div: 320, 84 N. Y. Supp. 658; Root v. Great Western R. R. Co., 45 N. Y. 524), nevertheless it appears also to be the law that where property is delivered to a railroad company, to be transported by it and another company over their respective roads to its place of destination, it is enough for the owner, in an action against the delivering company to recover damages for negligence, to show that he delivered the property to the first company in good order, and the burden is then cast upon the company delivering the goods thus damaged of showing that they were not injured while in its possession, or that they came to its possession thus injured. Smith v. N. Y. Central R. R. Co., 43 Barb. 225, affirmed in 41 N. Y. 620; Springer v. Westcott, 2 App. Div. 296, 37 N. Y. Supp. 909; Fox v. Wabash Ry. Co., 16 Misc. Rep. 370, 38 N. Y. Supp. 88; Canfield v: Baltimore & Ohio R. R. Co., 75 N. Y. 144, 148; Berkowitz v. Chicago, Mil. & St. P. R. R. Co., 109 App. Div. 880, 96 N. Y. Supp. 825.

The principal question then presented is whether the defendant in this case has met and overcome the presumption of negligence on its part which the law imposes. We think the defendant has satisfactorily shown that the damage to the berries in question must have been occasioned before the car in which the berries were shipped was delivered to the defendant. It appears the berries were loaded into the car in question on the 27th of April, at Glenn, S. C. The car was delivered to the defendant at Sunbury, Pa., at 10:20 p. m. of April 29th, and that it reached Renoro, on the defendant's line, five hours later on schedule time; that the car was there examined and found to contain 10,000 pounds of ice, which must have been in the car at the time it was received at Sunbury; that 500 pounds of ice was added at Renoro, which filled the compartments. The car arrived at the Alabama

fied in advance of its arrival, and there met it. It was at once opened, and the bunkers found to be seven-eighths full of ice. It is true that there is evidence that the drip pipes connected with the ice bunkers were defective, and that water was not running therefrom; but the evidence on the part of the defendant is (and this evidence is uncontradicted) that the clogging of the drip pipes, or defective drainage from the bunkers, would have no effect on the temperature inside the cars.

It appears that on the arrival of the berries in Buffalo, they were in a rotten condition, and were condemned by the health authorities of the city as worthless. It does not seem possible, if the berries had been delivered to the defendant in good condition at Sunbury at 10:20 the night before, that they would have been spoiled and been in the condition described when the car was opened. The day was not a hot day. The outside temperature was only about 48 degrees; whereas, the temperature of the car inside, when opened, is described as stifling, and probably as high as 75° to 85°, notwithstanding the ice in the bunkers. The night before had been cool, and the only fair inference to be drawn from the facts shown is that the intense heat inside the car was caused, not by the outside temperature, but by the heat caused by the decomposition and fermentation of the berries incident to their decaya fact of common knowledge and experience under such conditions. Where decomposition is advanced, it could not be well expected that refrigeration would overcome the heat caused by decay.

It is argued that the defendant was responsible for defective car. I do not think the evidence shows the car was defective in any manner which affected the berries; but, if it were, it was not furnished by the defendant, and was not one of its cars, and it cannot, we think, be held responsible for any defects in the car itself. The probabilities all point to the berries having been damaged by reason of defective icing of the car while en route, and before the car was delivered to the defendant. It was en route several times longer before reaching Sunbury than it was from Sunbury to Buffalo, and we cannot find in accordance with the plaintiff's contention that the berries were damaged while on defendant's road.

We think the weight of evidence is against that contention, and therefore dismiss the plaintiff's complaint.

(134 App. Div. 358.)

FIESEL v. WHITE SEWING MACH. CO. (Supreme Court, Appellate Division, First Department. October 22, 1909.) TRIAL (§ 16*)-CALENDARS-STRIKING CAUSE FROM DAY CALENDAR-Grounds. Under court rules providing that no application to postpone the trial of a cause sent to a jury for trial shall be entertained, and that when the counsel is actually engaged in the trial of a cause in a court of record the cause shall be passed for the day, etc., an attorney employed in a cause which has been assigned to a part for trial, the presiding justice of which has directed the parties to appear before him at a specified time, when the case would be taken up, is at the specified hour engaged in the trial of the cause, though a jury had not been impaneled; and the justice pre

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

siding over another part cannot send a cause on the day calendar in which such attorney is attorney to the foot of the general calendar because of the inability of the attorney to try it.

[Ed. Note. For other cases, see Trial, Dec. Dig. $ 16.*]

Appeal from Trial Term, New York County.

Action by John Fiesel by Susan Fiesel, his guardian ad litem, against the White Sewing Machine Company. From an order denying a motion to restore the case to the day calendar after it had been sent to the foot of the general calendar, plaintiff appeals. Reversed, and motion to restore granted.

See 131 App. Div. 893, 115 N. Y. Supp. 1120.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

I. Henry Harris, for appellant.
Clarke & Lyon (Marshall B. Clarke, of counsel), for respondent.

CLARKE, J. This case appeared upon the No. 2 day calendar, called in Trial Term, Part 8, on May 18, 1909, and was No. 55 thereon. On May 19th it was No. 26 on said calendar, and was answered ready by both sides, and the plaintiff held his witnesses throughout that day. On May 20th it was No. 18, and was answered ready on the call. On May 20th the plaintiff's attorney had another case on the No. 1 calendar called in Trial Term, Part 3, which was No. 1 thereon; the justice presiding at the calendar in Part 3 assigned the case No. 1 on his calendar to Part 4 for trial, and the attorney and his witnesses under such direction appeared before the trial justice at said part. A case on trial before him was not quite concluded, and he directed the parties to appear before him at 2 o'clock, when it would be taken up. At said time he requested the pleadings to be handed up, and directed the attorney to start his case; but a jury had not actually been impaneled.

The attorney, relying upon his assignment to Trial Term, Part 4, had at about half past 11 discharged his witnesses for the day in the Fiesel Case. After the handing up of the pleadings and the direction to start his case in Part 4, the attorney was informed that his case, which was No. 18 on the No. 2 calendar in the morning, had been called for trial at 2 o'clock in Part 8. He appeared before the justice there presiding and stated the situation. The justice inquired if a jury had been actually impaneled in Part 4, and, being informed that it had not, refused to pass the case and sent it to the foot of the general calendar. Thereafter plaintiff moved for an order restoring the case to the day calendar, which was referred to the calendar justice who had presided at Part 8, by whom the motion was denied, and from the order entered thereon this appeal is taken.

Rule 6 of the “Rules for the Regulation of Trial Terms of the Supreme Court in the First Judicial Department and to Regulate the Calendar Practice Therein," provides for three separate day calendars, which shall be called, respectively, in Trial Terms, Part 3, Part 8, and Part 14. It further provides for the trial parts to which cases shall be sent from each of said day calendars. It also provides: