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John D. Kernan, for respt.

Held, That M. was entitled to recover the amount allowed by the referee; that a surety is entitled to full indemnity against the consequences of the default of his principal and to call upon him for reimbursement, not of what he was obliged to pay in discharge of the obligations for which he was surety, but of all reasonable expenses legitimately incurred in consequence of such default or for his own protection. These do not include expenses incurred in defending himself against the just claim of the creditor, or remote and consequential damages sustained by the surety, such as sacrifices of property to meet his liability, loss of time, injury to business, expenses incurred in seeking to avoid payment, &c. These principles are not abrogated by § 3 of Chapter 314, Laws of 1858.

Also held, That the fact that M., instead of proceeding in equity to compel the creditors to prosecute, gave security and brought the actions himself in their names, made no difference in the allowance of his claim. Order of General Term, reversing order of Special Term, affirmed.

Opinion by Rapallo, J. All concur, except Church, Ch. J., absent.

ALTERATIONS. EFFECT OF. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Mary C. Kinney, respt., v. George Schmidt et al., applts.

Decided January 4, 1878.

receiving same to fill up the spaces with the words which the context indicated to be proper.

Appeal from a judgment recovered on trial at Circuit.

This action was brought upon the following guaranty indorsed upon the back of a lease:

In consideration of the letting of the premises above mentioned to the above named Francis X. Schwer, and of the sum of one dollar to me paid by the said party of the first part, we do hereby covenant and agree to and with the party of the first part above named and by her legal representatives, that if default shall at any time be made by the said Francis X. Schwer in the payment of the rent and performance of the covenants above contained on his part to be paid and performed, that we will well and thereof that may remain due unto the truly pay the said rent or any arrears said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants or either of them withfault from the said party of the first out requiring notice of any such depart.

Witness our hand and seal this twenty-ninth day of March, in the year of our Lord one thousand eight hundred and

SCHMIDT & KOEHNE, [L.S.] WITNESS, WM. H. BUTLER.

The premises leased were the store and basement of the building No. 79 Cedar Street, the lease was for one year at the annual rental of $3,500, payable in monthly installments on the first of each month.

This action was brought on the aforesaid guaranty for several months

Immaterial alterations of an instrument after arrears of rent. The defence set up

execution do not render it void. Where an instrument is signed with certain

spaces left blank, it will be presumed that the parties intended to allow the party

was that the instrument sued on had been materially altered after execution and was thereby avoided.

Defendants offered proof tending to show that the words in italics in the above guaranty were inserted after execution. But the evidence on this subject was conflicting.

The justice presiding at Circuit directed a verdict for the amount of plaintiff's claim. Defendants requested to go to the jury on the question of the alteration of the instrument, but such request was refused. F. G. Solomon, for applt. Chas. Meyer, for respt. Held, That as the question of alter ation was taken from the jury, the defendants are entitled to the presumption that the words in italics were written in after the instrument was executed. Those were the only words defendants claimed were added.

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spaces may be filled in with any date, time of payment, amount, place of payment or payee, provided this be done consistently with the legal import or tenor of the form signed or indorsed, and to that extent it has been abundantly sustained by authorities. 7 Grat., 189; 8 Leigh, 43; 4 Ohio, N. S., 529; 5 Cranch, 142; 7 Cowen, 336; 9 Wallace, 544. Νο good reason exists for excluding that which the defendants gave from the operation of this rule.

The defendants practically authorized the blank spaces to be filled in with the words which the context indicated to be proper.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring.

APPEAL.

N. Y. COURT OF APPEALS. Bastable, respt. v. The City of Syracuse, applt.

Decided January 15, 1878. An order of General Term giving leave to ap

peal where less than $500 is involved, which assigns no cause for so doing, is insufficient, and the appeal should be dismissed. A reference in the points of counsel to the opinion of the Court below as reported, is not a substitute for a compliance with the rule requiring such opinion to be printed with the papers in the case.

The judgment in this case being for less than $500, an order of General Term was made giving plaintiff leave to appeal, without assigning any cause for so doing.

Geo. K. Collins, for respt.
M. A. Knapp, for applt.

Held, That the appeal should be dismissed; that the order was not in

compliance with Chapter 322, Laws of 1874, because it did not state that the case involved some question of law which ought to be reviewed in this Court.

Also held, That a reference in the points of counsel to the opinion in the Court below, as reported in the Supreme Court Reports, was not a substitute for a compliance with the rule of this Court requiring the opinion in the Court below to be printed with the papers in the case.

Appeal dismissed with costs. Opinion by Rapallo, J. All concur, except Church, Ch. J., absent.

COSTS.

N. Y. COMMON PLEAS.

TERM.

Branagan v. Palmer.

Decided January, 1878.

the amendment consisting of leaving out and abandoning the counterclaim.

Plaintiff claims the costs of the action against the defendant' as upon the discontinuance of an action for the subject-matter of the counterclaim.

The only authority cited in support of this motion is Curry v. Blair, 4 N. Y. Weekly Digest, 271.

It appears from an investigation of the record in that case, however, that the motion therein was not opposed, and the question discussed in the points of plaintiff's counsel remains an open one, if there be any question about the matter.

Section 542 expressly allows the SPECIAL amendment therein provided for to be made, without costs, although without prejudice to the proceedings already had.

The withdrawal of a counterclaim within the

Plaintiff's counsel contends, however, that abandoning the counterclaim contained in the original answer

time allowed to answer is not analogous to the discontinuance of an action for the demand which is the subject of such counter-is not an amendment, and that if the claim, and will not entitle plaintiff to costs. amendment was allowed without costs, The right of plaintiff to costs upon demurrer to an answer is subject to defendant's right it would prejudice the proceedings to amend without costs under § 542 of the already had, i. e., his demurrer and the costs accrued upon it, before the amended answer was served.

Code of Civil Procedure.

Motion by plaintiff for leave to tax costs against defendant upon amendment of answer. The facts appear in the opinion.

John S. Berry, for the motion.
William H. Townley, opposed.
J. F. DALY, J.-Action for the
conversion of a fund held in trust.

Defendant answered and with other defences set up a counterclaim. Plaintiff demurred to the counterclaim.

Within the time allowed by § 542 of the Code, and before the demurrer was noticed for argument, the defendant served an amended answer,

Defendant may amend by omitting or withdrawing a defence or a claim. Diamond v. Williamsburg Fire Insurance Company, 4 Daly, 494, reviewing many cases and questioning Woodruff v. Dickie, 5 Rob., 619, and 31 Howard, 164; Brown v. Leigh, 49 New York, 78.

The withdrawal by defendant of a counterclaim, within the time allowed by the law for amending his answer, is not analogous to the discontinuance of an action for the demand which is the subject of the counterclaim, be

cause the defendant has not brought tual consent. After this numerous actions were instituted, and to settle these it was agreed to submit the matters in controversy to arbitration,

the plaintiff into Court upon the demand. As to the plaintiff's right to costs upon his demurrer to the original answer, the demurrer was subject"in order to settle without further to the defendant's rights to amend, under § 542, without costs. Motion denied, with $10 costs.

AWARD.

N. Y. COURT OF APPEALS. Jones, assignee, &c., respt., v. Welwood et al., applts.

Decided November 13, 1877.

litigation the many actions and canses of action existing." The submission provided that the arbitrators should decide according to law and equity, "and their decision shall be the final decision between the parties." The arbitrators reported that all claims and demands and disputes between the parties were merged in and satisfied and discharged by the

An award of arbitrators that all the causes of contract of January 11, 1872, and

action referred to them were merged in and satisfied and discharged by a certain contract between the parties, and ordering judgments dismissing the complaints, and which concludes by saying that the award is "not intended to determine any of the rights of either of said parties arising under" said contract, is not final or definite, and should

be set aside.

It is only when matters omitted in a submission to arbitrators are not necessarily dependent on and connected with the other points, that a partial award will be sustained.

This was an appeal from an order of General Term, affirming an order of Special Term vacating an award of arbitrators. One W., a married woman, owned a tract of land which was managed by her husband. The latter made a contract with S. by which the land was to be divided into lots and sold. S. was to sell the same and receive a portion of the profits for his services. Disputes arose as to the amounts due under this contract, and on January 11, 1872, a new contract was entered into between all the parties interested, to settle the same. This contract was acted under until in April, 1872, when it was rescinded by mu

ordered judgment dismissing the complaints in said actions. The award concludes as follows: "This award is not intended to determine any of the rights of either of said parties arising under the contract of January 11, 1872."

B. F. Tracy, for applt.

Moody B. Smith, for respt.

Held, That the award was properly vacated on the ground that a mutual, final and definite award on the subject-matter submitted was not made. 2 Cai., 320; 22 Me., 240; Morse on Arbitration, 59, 342; 5 Cow., 197; Willes, 270.

It is only when matters omitted in a submission to arbitrators are not necessarily dependent on and connected with the other points that a partial award will be sustained. 1 Taunt., 549.

Order of General Term, affirming order of Special Term vacating award, affirmed.

Opinion by Church, Ch. J. All concur, except Folger, J., absent.

RAILROAD COMPANIES.

NEGLIGENCE.

U. S. SUPREME COURT. The Chicago, R. I. & P. RR. Co., pl. in error, v. Hamilton Houston. (Oct., 1877.)

Persons crossing a railroad track are bound to look and listen for approaching trains; and they are not relieved from the necessity of taking such precaution by the neglect of the company's servants to sound the whistle or ring the bell on approaching the crossing. Error to the Circuit Court of the United States for the Western District of Missouri.

Deceased was the wife of the plaintiff; her death was caused by injuries inflicted by the locomotive of a railway train belonging to the defendant, whilst the train was passing through the village of Cameron in that State. The house at which the deceased resided was north of Second Street and east of Harris Street, which the tracks crossed. South of the two tracks, and about ninety feet east from Ilarris Street, was situated a building belonging to the company, called the section house, near which was a well of water. Both building and well were on the company's rightof-way.

At about half-past six in the evening of the 13th of March, 1872, the deceased took a pail upon her arm and left her house and, it is supposed, started for the well near the section house. She was seen by her daughter as she left her house, and by the engineer a few seconds before she was struck by the locomotive. It does not appear that she was seen by any other person after leaving the house before she was injured. When discovered by the engineer the locomotive was within four feet of her.

She was then on the main track of the railway about ninety feet east of Harris Street, and was apparently passing from the track south. She was struck by the extreme end of the beam of timber running across the engine, known as the bumper, and was thrown into a ditch about ten feet from the section house. The engineer testified that when he discovered her it was impossible to stop the train so as to avoid striking her. She died within an hour after receiv ing the injury.

It appeared from the evidence that the railway was in plain view from the house of the deceased, and that a train approaching from the west could be seen from it, and from any point between the Harris Street crossing and the section house, for a distance of three quarters of a mile. At the time of the accident there was a bright moonlight; and the headlight of the engine was burning, and the movement of the train created a loud noise. There was some conflict of evidence as to the rate of speed at which the train was running at the time, and whether its bell was rung and its whistle sounded.

The Court refused to instruct the jury, as requested, to render a verdict for defendant.

Verdict was rendered for plaintiff, and judgment entered thereon.

Held, That the failure of the engineer to sound the whistle, or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company's employees in these particulars was no excuse for negligence on her part. She was bound to listen and

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