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1980, and 1981. The effect of this Abb. Ct. of App. Dec., 480; 55 statute is to make such an occupant Maine, 438; 2 Gray, 541; 5 B. & Ad., practically the owner of his improve-846 ; 3 Burrows, 1905, 1913, 1914; ments, even though he be not the own- 107 Mass., 494. er of the land on which they have been The Court refused to instruct the made. If, therefore, the title to the jury as requested, that, “if they believland had been shown to be in the ed the sparks from the Jennie Brown defendants, the proof would not have set fire to the elevator through the affected the right of the plaintiff to negligence of the defendants, and recover compensation for wilful or the distance of the elevator from negligent destruction of the buildings the nearest lumber pile was three and lumber. Nor could it have hundred and eighty-eight feet, and changed the degree of prudence and from the mill five hundred and care which the defendants were bound twenty-eight feet, then the proxito exercise in order to guard against mate cause of the burning of the injury to that property.

mill and lumber was the burning of The Court refused to permit the the elevator, and the injury was too defendants to prove by witnesses who remote from the negligence to afford were experts, experienced in the bus- a ground for a recovery,” and in lieu iness of fire insurance, and accustom- thereof submitted to the jury to find ed by their profession to estimating and whether the burning of the mill and calculating the hazard and exposures lumber was the result naturally and to fire from one building to another, reasonably to be expected from the and to fixing rates of insurance, that burning of the elevator ; whether it owing to the distance between the was a result which, under the circumelevator and the mill, and the dis- stances, would naturally follow froin tance between the elevator and the the burning of the elevator; and lumber piles, the elevator would not whether it was the result of the conbe considered as an exposure to the tinued effect of the sparks from the mill or lumber, and would not be con- steamboat, without the aid of other sidered in fixing a rate thereon, or in causes not reasonably to be expected! measuring the hazard of mill or lum- Held, no error; the true rule is ber.

that what is the proximate cause of Held, no error; the subject of pro- an injury is ordinarily a question for posed inquiry was a matter of com- the jury. It is not a question of mon observation, upon which the lay science or legal knowledge. It is to or uneducated mind is capable of be determined as a fact, in view of forming a judgment. In regard to the circumstances of fact attending such matters experts are not permit it. The primary cause may be the ted to state their conclusions. In ques- proximate cause of a disaster, though tions of science their opinions are it may operate through successive received, for in such questions scien- instruments. 2 Blacks. Rep., 892. tific men have superior knowledge The question always is, was there an and generally think alike. Not so in unbroken connection between the matters of common knowledge. 2 wrongful act and the injury, a con

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tinuous operation ? Did the facts and independent agencies, and this constitute a continuous succession of must be determined in view of the events, so linked together as to make circumstances existing at the time. a natural whole, or was there some Ryan v. The N. Y. C. RR., 35 N. new and independent canse interven- Y., 210, and Kerr v. The Penn. RR. ing between the wrong and the Co., 62 Pa. St., 353, disapproved. injury? It is admitted that the rule Judgment affirmed. is difficult of application. But it is Opinion by Strong, J. generally held that, in order to warrant a finding that negligence or an

CERTIORARI TO FIRE COMact not amounting to wanton wrong is the proximate cause of an injury, N. Y. SUPREME Court.


GENERAL it must appear that the injury was the natural and probable consequence

TERM. FIRST DEPT. of the negligence or wrongful act,

The People ex rel. George Lake, and that it ought to have been fore- v. The Board of Fire Commissioners seen in the light of the attending of the City of New York. circumstances. We do not say that

The People ex rel. David Closey v. even the natural and probable conse

The Same. quences of a wrongful act or omis- The People ex rel. Sidney Conklin sion are in all cases to be chargeable v. The Same. to the misfeasance or . non feasance.

Decided October 9, 1877. They are not when there is a sufficient Where a party relies upon mere irregularities

in the proceedings, he cannot for the first and independent cause operating be

time raise such objections in a court of retween the wrong and the injury. In

view. They are waived if not raised below. such a case the resort of the sufferer Delay of a year and four months after determust be to the originator of the inter- mination of proceedings is not such laches mediate cause. But where there is

as will positively deprive an injured party of

his right to a writ of certiorari to review no intermediate sufficient cause the

them. original wrong must be considered as

Writs of certiorari to review proreaching to the effect, and proximate to it. The inquiry must

, therefore, ceedings by which the relators were

respectively dismissed from the Fire always be whether there was any Department of the City of New York. intermediate cause disconnected from

The relators were all charged with the primary fault, and self-operating,

a violation of the following regulation which produced the injury. In the nature of things there is in every

adopted by the Fire Department. transaction a succession of events,

IN BOARD FIRE COMMISSIONERS, more or less dependent upon those

New York, October 1st, 1874. preceding, and it is the province of « Resolved: That on and after the jury to look at this succession of this date any member of the departevents or facts, and ascertain whether ment assigning his salary, or incurthey are naturally and probably con- ring liabilities which he refuses or nected with each other by a continuous neglects to honorably discharge, will sequence, or are dissevered by new be considered as violating the rules

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of the department, and subject him- board in a jurisdictional defect of self to such penalty as the Commis- authority. For without some proof sioners may deem advisable.

of that portion of the charge, the WM. B. WHITE, relator could not be found guilty and Secretary

dismissed. A true extract,

The charge against Closey was CARL JUSSEN,

proved, and he was properly dismissed. Secretary

The relator Conklin was notified of a The relator, Lake, is charged with similar charge, and although he did incurring liabilities which he refused not appear the charge against him to pay. Notice was served upon him, was fully made out and his dismissal and he appeared in response. The

proper. proceedings against Lake were insti- In the case of Lake there was no tuted in December, 1874, and deter- such laches as deprived him of the mined on the 10th of that month. writ. The simple circumstance that The writ of certiorari in his behalf the place made vacant by his dismiswas allowed on the 4th of April, 1876. sal may have been supplied by an

Closey and Conklin were charged other ought not to deprive him of with assigning their salary.

redress when the return has clearly The counsel for relator, Lake, on shown him entitled to it. In the the argument on the return of the cases of Closey and Conklin, proceedwrit, raised the objection that the ings affirmed. In case of Lake, proregulation had not been published as ceeding reversed, but without costs. required to make it binding upon Opinion by Daniels, J.; Davis, P. members, and that the offence had J., concurs in result. Brady, J., been committed previous to the regu- concurs. lation going into effect.

Douglass A. Lener, for relators.
D. J. Dean, for respts.

Held, That the foregoing objections


TERM. FIRST DEPT. should be made before the tribunal

Lorenzo Macino and Veraldi Miinvestigating the charges, in these as in other legal proceedings. Proof of chaeli, plffs. in error, v. The People, such facts would probably have been deftr

. in error.

Decided October 9, 1877. made, if the objections had been there raised. No such objections

Where a person procures another to voluntar

ily give him possession of goods, with the having been made below, the law re

intention by such person so receiving them gards them as waived, and the parties to steal them, that constitutes the crime of practically as admitting that there larcency. was no basis in fact upon which they Writ of error to Court of General could have been maintained.

Sessions of the County of New York, The relator, Lake, pleaded guilty on conviction of the crime of grand of incurring the liability, but not of larcency. refusing to pay. The refusal to pay The prisoners were convicted of was not proven. This involved the larcency for stealing American and French gold coin owned by the com- construction. The answer of the witplaining witness.

ness that he gave him the money beIt was argued and claimed by the cause it was surer in his possession, counsel for plaintiffs in error, that if indicates the existence of a purpose any offense had been committed it only to make a delivery of its cuswas that of obtaining goods under tody; he evidently did not intend to false pretences and not that of lar- give the money, but, as the jury receny.

garded it, he simply placed it in the The case as one of larceny, how- hands of the supposed priest to be ever, was submitted to the jury by carried for the owner to Italy. The the Court, to which exception was Court would not have been warranted duly taken.

in taking the case from the jury. It The following facts appeared from is their province to decide upou conthe evidence in behalf of the People. Alicting conclusions.

The fact that The complaining witness, who is an the owner may voluntarily deliver Italian, met the two prisoners, also over the custody of his property, does Italians, in the city of New York not protect the person procuring it when about to engage his passage to from the legal charge of larceny, Italy. One of the prisoners professed where it is received by him with the to be a priest, and both represented felonious intention of stealing it. that they were going to Italy and The rule on that subject has been could secure the passage at a lower held to be, that if under all the cirrate. The priest was represented as cumstances of the case it be found being very rich, and the other pris- that a party has taken goods from the oner said to the complaining witness, owner, though by his delivery, with “ If you have some money you may an intent to steal them, such taking give it to him because he is very amounts to felony. 62 N. Y., 623. rich." The witness then gave them The case was not improperly disposed the money. They then gave him two of, and the conviction should be aftwenty-five cent pieces with which he firmed. was sent for cigars, and when he re- Opinion by Daniels, J.; Davis, P. turned the prisoners had disappeared. J. and Brady, J., concur. When asked on the trial why he gave the money to the priest, witness said, “ Because it was surer in his possession.”

SURETIES. FRAUDULENT W. F. Howe, for plff. in error.

CONVEYANCE. Horace Russell, for deft. in error.

N. Y. SUPREME COURT. GENERAL Held, That if the complaining wit

TERM. FIRST DEPT. ness intended when he handed over

John Martin and another, applts., the money to part with the title to v. James W. Walker, and Fanny, his it as well as the possession of it, then wife, respts. a case of larceny was not presented Decided October 9th, 1877. by the evidence. But the testimony Objection to non-joinder of party as defendant presented is susceptible of a different

can only be taken by demurrer. Vol. 5–No. 10

Sureties having paid the debt of the principal by Morrow, together with counsel

are subrogated to all the rights of the prin. fee. cipal, and have the right which their princi

After such payment by plaintiff pal had as creditors to set aside a deed made by debtor to hinder, delay, and defraud they recovered a judgment against creditors.

Walker by reason of the payment so Appeal from a judgment rendered made, and issued execution, which was at Special Term, dismissing the com- returned unsatisfied. plaint, with costs.

Plaintiffs now seek to set aside the This action was brought in 1874, deed by defendant conveying the real to set aside a conveyance of certain estate through Williamson to his wife, real estate made by James W. Walker the defendant, Fanny Walker. to one Williamson, without considera- The evidence on the trial showed tion, which real estate was immedi- that the conveyances made of the real ately after the conveyance to Wil-estate from Walker to Williamson and liamson conveyed by him to the de- from Williamson to Mrs. Walker were fendant, Fanny Walker. These con- made for the purpose of enabling veyances were made on the 4th of Walker to escape payment of such of May, 1867, and were claimed to be amount as might be recovered against fraudulent as against the plaintiffs. Walker in the Morrow suit pending

When the conveyances aforesaid against him for assault. were made an action against the de- The objection was taken on the fendant, James W. Walker, for assault trial that Williamson should have and battery was pending. Morrow, been made a party defendant, and the plaintiff in the action for assault, furthermore that Reynolds was not a recovered judgment May 24, 1867. party plaintiff, as it was alleged that Execution was issued on such judg- he had assigned his claim to the plainment which was returned unsatisfied, tiff Martin. and proceedings supplementary to ex- C. Bambridge Smith, for applts. ecution were instituted. For disobe- A. H. Reavy, for respts. dience to an order in the supplemen- Held, That the evidence showed tary proceedings, Walker, the judg- that Reynolds, the co-surety, had suftiment debtor, was fined, for contempt cient interest to maintain the action of Court, the amount of the judgments with Martin, as he had not been fully recovered by Morrow, and $250 coun- compensated for the sum paid by him sel fee in addition. Walker took an by reason of his obligation on the appeal from the order punishing him bond. for contempt, and in order to obtain a That strictly Williamson should stay of proceedings procured the have been made a party defendant, plaintiffs to go upon his bond as sure- but that objection could only be taken ties for the payment of the amount by demurrer, and the objection had required by the order to be paid. been waived by failure to demur.

The order appealed from was af- That although no judginent was firmed, and the plaintiffs were obliged obtained by Morrow in the suit for to pay the amount of the fine, which assault and battery at the time of the included the judgment recovered conveyance by Walker, still the re

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