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with a proper defendant before the Order appealed from must be reCourt the relator must be remitted. versed, but as the respondent is en

The writ must therefore be dis-titled to motion fees and disbursemissed.

ments, if any, no costs will be allowed Opinion by Brady, J.; Davis, P. to either party on this appeal. J., concurring.

Opinion by Brady, J.; Davis, P.

J., concurring
ALLOWANCE IN SURPLUS

MONEY PROCEEDINGS.
N. Y. SUPREME COURT. GENERAL

COMMON CARRIERS. CON.
TERM. FIRST DEPT.

VERSION. Aaron H. Wellington v. The Ulster

N. Y. COURT OF APPEALS. County Ice Company et al.

Magnin et al., applts., v. Dinsmore, Decided June 1, 1877.

Prest., &c., respt. In proceedings as to the surplus moneys aris

Decided Sept. 18, 1877. ing on sale of mortgaged premises; motion where a common carrier gives a receipt limitcosts and referee's fees only can be allowed. ing its liability to a specific sum, if the Appeal from an order granting

value of the goods is not stated, the dis$75 for costs and disbursements to

closure of the value is a condition precedent

to the attaching of any liability to the carthe attorney for the first junior inort

rier for merely ordinary neglect unaccom. gagee on a reference as to the sur- panied by any misfeasance or wilful act. plus moneys.

To deprive a common carrier of the benefit of On the report of the referee, to

a contract for limited liability there must be

an affirmative act of wrong.doing. whom it was referred to determine A mere non-delivery is not a conversion, nor the respective claims of lienors to the is a refusal to deliver on demand if the goods surplus moneys arising upon a sale

have been lost through negligence, or stolen. of the mortgaged premises, an order This action was brought against was made confirining the report of defendant as a common carrier to the referee and granting to the attor-recover the value of a package of ney for the first junior mortgagee watches entrusted to its care. The $75 for costs and disbursements, be- watches were valued at $1,491.50. sides $30 referee's fees.

Their value was not stated to defenThis appeal is by the second junior dant, and it gave the shippers a remortgagee to so much of the order as ceipt limiting its liability, if the value grants $75 to the attorney for the was not stated, to $50. The watches first junior mortgagee for costs and were never delivered to the consignee. disbursements.

The case has been before this Court Geo. R. Carrington, for applt. on three distinct appeals (see 53 N. N. A. Halbert, for respt.

Y., 652; 56 Id., 168; 62 Id., 35). A Held, The appeal in this case is verdict for $50 and costs was given sustained by the case of McDermott for plaintiffs. v. Hennessy (9 Hnn, 59), in which C. B. Smith, for applts. it was held, that on a proceeding of C. M. Da Costa, for respt. this kind, the motion costs and refer- Held, That the disclosure of the ee's fees only could be allowed. value of the goods was a condition

precedent to the attaching of any

MARRIED WOMEN. EVI. liability to the carrier for merely or

DENCE. dinary neglect unaccompanied with N. Y. COURT OF APPEALS. any misfeasance or wilful act.

McVey, respt., v. Cantrell, applt. What would be ordinary care in Decided Sept. 18, 1877. caring for a package of small value where a married woman borrows money for might come far short of it and be the benefit of her separate estate, such grossly negligent in respect of a

estate is charged as soon as the debt is con

tracted, and the obligation cannot be valuable package of jewelry and

affected by a subsequent diversion of the watches. The value of the property money to another purpose. is intimately connected with the ques. While parol evidence is inadmissible to show tion of negligence and the degree of

an agreement to charge the separate estate

of a married woman where the obligation care required from the bailee.

sued upon is in writing, the intention to There was no waiver of the clause

charge it may be presumed from the nature limiting defendant's liability.

of the transaction. There was

no conversion of the This was an action upon two promgoods. A mere non-delivery will not issory notes made by defendant, who constitute a conversion, nor will a re- is a married woman living apart from fusal to deliver, on demand, if the her husband and having a separate esgoods have been lost through negli- tate consisting of real estate. The notes gence or stolen. Ang. on Car., SS 431 in no way charged her separate estate. -3; 2 Kern., 509; 4 Esp., 157; 2 Plaintiff testified that the notes were Bur., 2825. Negligence alone would given for money borrowed by defendnot show a misfeasance on the part ant for the avowed purpose of paying of defendant, or an abandonment by interest on mortgages upon her real it of its character as a carrier. The estate. The evidence on this point act which will deprive a carrier of was conflicting. Defendant testified the benefit of a contract for a limited to the effect that the money for which liability, fairly made, must be an the notes were given was used for the affirmative act of wrongdoing, not support of her family. The Court merely ordinary neglect in the course submitted to the jury the question of the bailment. It need not neces- whether the nosey was borrowed on sarily be intentional wrongdoing, but defendant's representation that she the mere omission of ordinary care in desired it to pay interest on the mortthe safe-keeping and carriage of the gages, and the plaintiff relied on such goods is not a misfeasance.

representation, and charged that if Judgment of General Term, affirm- this was the fact the jury might find ing judgment for plaintiff, affirmed. for the plaintiff, and it was imma

Opinion by Allen, J. All concur, terial what the money was used for. except Church, Ch. J., and Earl, J., Defendant's counsel requested the not voting, and Rapallo, J., absent. Court to charge that if the money

was used by defendant for the support of herself and children, they must find for defendant. This re

quest was refused, and defendant exVol. 0_No. 5*

cepted. The jury found for plain- Appeal from judgınent for defentiff on the question submitted to them. dant on report of a referee. II. H. Morange, for applt.

Defendants are trustees of a School Daniel T. Robertson, for respt.

District in the towns of Greenbush Held, no error; that the question and North Greenbush, and this action was one of fact; that while parol evi- is brought against them to recover dence is not admissible to show an damages for the seizure of a steam agreement to bind the separate estate tug belonging to plaintiff, under a of a married woman where the obli- warrant issued by defendants for the gation on which the action is brought collection of the School Tax. The is in writing, the intention to charge property assessed was that part of the separate estate may be presumed plaintiff's bridge over the Hudson from the nature of the transaction. River which is within the towns of 22 N. Y., 456.

Greenbush and North Greenbush and The separate estate of a married certain lots or parts of lots in Greenwoman is held bound for a debt con- bush, not used or required for bridge tracted for its benefit, not simply purposes. Up to the time of the assessupon the theory that the money ment the bridge had been used exclusought to be recovered has gone into sively for the passage over and across and increased it or relieved it from a lit of railroad trains, the railroad comcharge, but upon the ground that the panies paying for the passengers and parties must have intended that the freight carried over. Since then it estate should be bound for it. The has been used also. as a foot bridge, obligation is created as soon as the for which tolls are taken. Plaintiff debt is contracted, and cannot be claims that its bridge is a toll bridge, affected by a subsequent diversion of and that it can be taxed only in the the money obtained to purposes other City of Albany where its office is than that of benefiting the estate. located.

Judgment of General Term, affirm- Matthew Ilale, for applt. ing judgment for plaintiff, affirmed. Amasa J. Parker, for respt. Opinion by Rapallo, J. All con- Held, That the real estate of a toll

bridge should be assessed in the town

in which it situated. Such is the ASSESSMENTS. BRIDGES. rule in regard to all incorporated comN. Y. SUPREME COURT. GENERAL panies, 1 R. S., 389, $ 6, and we do TERM. THIRD DEPT.

not think the concluding clause of Hudson River Bridge Co., applt., that section was intended to create a v. John A. Patterson et al., respts. different rule in regard to toll bridges. Decided Sept., 1877.

We think that clause refers to the The real estate of a toll bridge should be as- place of taxation of personal property

sessed and taxed in the town in which it is and to that only. situated.

Held also, That this bridge is not The bridge of the Hudson River Bridge Com

a toll bridge, within the meaning and pany, at Albany, is not a toll bridge within

intent of the statute. Also that the the meaning of the Statute, 1 R. S., 389, $6.

lots in Greenbush not used or neces

cur.

man, J.

sary for the construction or mainten- may be sustained by the default of ance of the bridge, were liable to as- any of the collectors of the several sessment and taxation in the same wards of this city be charged to the manner and to the same extent that said wards respectively, and added to a farm or store or house and lot own the taxes of said wards this year," ed by the company would be. The mi- which was passed in pursuance of gration of the treasurer, the removal Chapter 80, Laws of 1837, authorizing of the toll house or the principal busi- it. It did not appear that any tax ness office from one side of a stream was imposed or collected under this to the other or from one town to resolution. At the time it was adoptanother would not, and ought not to ed a suit was pending against the carry along the right of taxation of collector and his sureties to recover houses, lots or vacant real estate. the amount of the deficiency; the

Judgment affirmed with costs. sureties were then solvent, and a few By the Court. Mem. by Board- days after secured the full amount of

the deficiency.

0. P. Buel, for applt.
SURETYSHIP.

D. J. Dean, for respt.
N. Y. COURT OF APPEALS.

Hell, That there was no basis for Oakley, applt., v. The Mayor, &c., plaintiff's claim; that even if taxes of N. Y., respt.

had been collected a second time, Decided Sept. 18, 1877.

they would not inure to the benefit

of the defaulting collector or his Where the surety for a ward collector has

sureties. 2d. It did not appear that given a bond and mortgage in discharge of his liability for a defalcation of said col- any such taxes had been collected. lector, he is not entitled to recover the Judgment of General Term, affirmavails thereof where the amount of such de ing judgment of Special Term disfalcation has been made good by taxation pursuant to the act of 1837, and especially

missing complaint, affirmed. 80 where the resolution of the Board of Su- Opinion by Eurl, J. All concur.

. pervisors authorizing such taxation has not been acted upon.

This action was brought to recover NEW YORK CITY. LIABILITY the avails of a bond and mortgage

OF.

N. Y. COURT OF APPEALS. given by plaintiff to defendant. It appeared that plaintiff, who was a Ham, applt., v. The Mayor, &c., of, surety of one of defendant's ward N. Y., respt. collectors, gave the mortgage in suit Decided Sept. 10, 1877. upon the defalcation of said collector An action cannot be maintained against the in a settlement with defendant, and

City of New York for injuries arising from

the unskilfulness of workmen employed by was discharged. It was proved that

the Board of Public Instruction in making this settlement was made by plaintiff repairs to the building occupied by such in ignorance of the following resolution of the Board of Supervisors of When officers are elected or appointed to

perform a duty neither local nor corporate, New York, passed Oct. 3, 1837 :

and are independent of the corporation in “ Resolved. That all losses which their tenure of office and mode of discharg.

Board.

ing their duties, they are public or State action lies against the corporation for officers, and no action will lie against the their acts or negligence. 2 Dil. on city for their acts or negligence.

Mun. Corps., $ 772; 62 N. Y., 162. This action was brought to recover Judgment of General Term, redamages for injuries to plaintiff's versing judgment for plaintiff and property, by the flowing of water granting new trial, affirmed. from the second story of a building Opinion by Miller, J. All concur, which was leased by the former except Rapallo, J., absent. Board of Education of the City of New York. Upon the organization

ATTACHMENT. DAMAGES. of the Department of Public Instruc- N. Y. SUPREME Court. GENERAL tion it continued in its occupancy for

TERM. THIRD DEPT. educational purposes.

Afterwards,

Samuel S. Olcott, Sh’ff, &c., respt. owing to the defective construction of certain water-closets built by the v. Edwin B. Low, applt. Board of Education, plaintiff's prem- Where property has been attached by a sheriff

Decided Sept., 1877. ises were several times overflowed,

and delivered to a third person on his reand the injuries complained of done.

ceipting therefor, and after final judgment Roger H. Lyon, for applt.

has been obtained and execution issued, a D. J. Dean, for respt.

demand for the return of the property or

payment of the value thereof has been made Hel, That this action could not

by the sheriff and refused by the receiptor; be maintained against defendant;

the true measure of damages, in an action that as defendant had no authority to by the sheriff on the receipt, is the value of employ, manage, control, and direct the property at the time of the demand. the action of persons employed by the Appeal from judgment on verdict Department of Public Instruction, or in favor of plaintiff, and from order to remove or discharge them for un- denying a new trial. skilfulness or neglect of duty, the Plaintiff, who is Sheriff of Essex rule of respondeat superior would County, levied upon a quantity of not apply, 5 N. Y., 48; 8 Id., 222; 11 stone belonging to one Edward L. Id., 432; and even when such officers Barrett, by virtue of a warrant of atare elected by the municipal corpor- tachment issued in an action against ation, it is only when their duties re- said Barrett. An inventory and aplate to the exercise of corporate praisal was duly made and the stone power, and are for the benefit of the were then delivered to the defendant corporation, that they are servants and on his giving a receipt therefor, and agents within said rule; if they are undertaking to return them on deonly elected or appointed according mand, or pay their value. The stone to law to perform a duty neither were mostly cut stone, and were inlocal or corporate, and are independ-tended to be used by Barrett in doing ent of the corporation in the tenure mason work on the N. Y. & Canada of their office and mode of discharg- RR. After the levy was made and ing its duties, they are public or State receipts given, the defendant permitofficers with such powers and duties ted one O'Brien to use the stone in as the statute prescribes, and no doing the said mason work, and they

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