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higher than murder in the second degree. We think the verdict proper. There was evidence from which the jury might have found these facts: That the prisoner and deceased were married in March, 1883, he being 20 and she over 30, unattractive and having children, one 13 years old, by a former husband; that as a soldier's widow she had a pension of some $1,700, with which the saloon where the murder was done was bought, and which was thereafter kept by the prisoner and deceased; that they frequently quarreled, and that he often swore at and struck her, threatened to kill her, and on two occasions fired off a pistol in her room, greatly frightening her and causing her to faint; that at times the prisoner drank to excess, and once since his marriage was treated for delirium tremens; that on the morning of July 3, 1884, he took two or three drinks of whiskey with a customer; very soon after his wife came in the barroom. He quarreled with her and struck her in the face and kicked her against a table. At this mo

walk about 18 feet, and his wife was distant from him 13 feet. He took a revolver from a drawer, cocked it and deliberately shot her in the stomach, a wound from which she soon died. He showed no remorse. The same afternoon he denied shooting his wife, gave several false versions of the affair, but acted and talked rationally. He looked as if he had been drinking when he arrived at the jail soon after the murder, but nothing peculiar was noticed about him.

We say these facts might all have been found by the jury. The jury, upon a perfectly fair charge, found that there was a deliberate and premeditated design to effect the death of deceased. This question was their peculiar province to decide. We shall not interfere. The evidence is stronger than that in People v. Conroy, 97 N. Y., 62.

Judgment affirmed and proceedings remitted, etc.

Bockes and Landon, JJ., concur.

EVIDENCE.

ment the mother of the deceased N. Y. SUPREME COURT. GENERAL

rushed at the prisoner to defend her child; the prisoner knocked her down. Then a boy, the son of deceased by her first husband, rushed at the prisoner with a large fork. The prisoner struck and disabled him. He then kicked his wife again, but upon being remonstrated with by a bystander stopped. He then walked away from his wife, went around a corner of the room and got behind the bar. To do this he had to

TERM. FIRST DEPT.

The People v. The Universal Life Ins. Co. In re Henry C. Bowen.

Decided Jan. 9, 1885.

B. petitioned the court for an order requiring the receiver of an insolvent insurance company to deliver to him certain paid-up policies of insurance which he claimed to own and which were in the hands of said receiver. The receiver resisted the application upon the ground that such policies had been held by the company as collateral security for the

payment of a note made by B. Held, That B. could show by parol evidence that the money for which the note was given was not a loan but an advance for services to be performed, which had been so performed.

Appeal by the Receiver of the Universal Life Ins. Co. from an order confirming with slight modifications the report of a referee.

Henry C. Bowen petitioned the court for an order requiring the Receiver of the Universal Life Ins. Co. to deliver to him certain paidup policies of life insurance which were held by such receiver. The receiver resisted the application upon the ground that the policies had been delivered to the company by Bowen as collateral security for the payment of a note made by him which had not been paid. The matter was referred to a referee to take evidence and report the same to the court with his findings of fact and conclusions of law thereon. Before such referee it appeared that Bowen had relieved the insurance company of a lease upon which it was liable for rent and which it did not desire, and that in consideration therefor the company had agreed to advertise to the amount of $2,000 per year for six years in a paper published by Bowen and to pay $6,000 of such amount in advance, and that the company desired that this $6,000 should appear to be a loan and that Bowen should give his note therefor, the payments upon which should equal and fall due at the same time as the payments to Bowen upon the advertising contract and so offset each other. To this Bowen agreed and gave his

Vol 21-No. 5b.

note for said amount and deposited the policies sought to be recovered ostensibly as security therefor. It further appeared that Bowen had advertised the insurance company for three years, and had therefore earned the $6,000. The referee reported in favor of granting Bowen's petition. It was insisted, however, by the receiver of defendant, that the contract for advertising and the note being in writing, the above facts could not be proved by parol and that the relief afforded to Bowen was improperly granted.

Charles J. Everett, for applt.
George C. Holt, for respt.

Held, That the rule excluding parol evidence does not prevent a party to an agreement from proving, by way of defence, the existence of an oral agreement made in connection with the written instrument where the circumstances would make the use of the latter for any purpose inconsistent with the oral agreement, dishonest or fraudulent, and that as the consideration of an agreement is open to inquiry, the party may show that the design and object of the written instrument were different from what its language if alone considered would indicate, 92 N. Y., 529, and that it would be manifestly dishonest to allow the transaction between Bowen and the Universal Co. to be treated as a loan when in fact it was an advance for services to be rendered, to secure which a valuable consideration was given.

Order affirmed, with the exception of a part fixing the value of

the policies in question, for the reason that that subject was not included in the order of reference. Opinion by Brady, J.; Davis, P.J., and Daniels, J., concur.

COMMON CARRIERS.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Thomas G. Poole, respt., v. The D., L. & W. RR. Co., applt.

Decided Jan., 1885. Defendant sold separate tickets to plaintiff over its own and a connecting line in which it was not interested, but for which it sold tickets as ageut. Held, that the separate tickets were insufficient evidence to justify the conclusion that defendant contracted to carry plaintiff beyond its line, and that it was not liable for injuries occurring on the connecting line.

Appeal from judgment in favor of plaintiff, entered on verdict for $350 damages, and from order denying motion for a new trial on the minutes.

Action to recover for injuries sustained by plaintiff. Defendant is a common carrier of passengers by a railroad extending from Oswego to Syracuse, and passing a station called Fulton. The village of Fulton is about one mile east of the station, and between the station and village a line of omnibuses is run by one H. By an arrangement between defendant and H. each sold tickets over the line of the other and accounted for the sales, but they did not share in the profits and losses of the business of the respective parties to the arrangement. The tickets were on separate cards, one for each line.

On Nov. 21, 1882, plaintiff purchased of defendant at Oswego a railroad ticket to Fulton station and an omnibus ticket to Fulton village. Defendant safely carried plaintiff to Fulton station, where he entered an omnibus. An accident happened, by which plaintiff was thrown from the omnibus and injured.

A motion for non-suit was denied, as was also a motion for a new trial on the minutes, made on the grounds that the verdict was contrary to law; that it was contrary to evidence, and on the exceptions taken.

Rhodes, Coon & Higgins, for applt.

W. C. Crombie, for respt.

Held,. Error. The separate tickets delivered to plaintiff, whether regarded as contracts or tokens, are insufficient evidence to justify the conclusion, as a matter of law, or of fact, that defendant contracted to carry plaintiff beyond Fulton station. 53 N. Y., 363. See also 61 N. Y., 538; 94 id., 278; 56 Me., 234; 107 U. S., 102; 99 Mass., 220; 100 id., 26; Wharton on Neg., 582, 583; 2 Rorer on Railroads, 975.

Each ticket is, as it purports to be, an independent contract or token; one by the railroad, to carry from Oswego to Fulton station, and the other by the omnibus line to carry from Fulton station to Fulton village. In this case the uncontradicted evidence is that the two lines were not connected in business except that each, as agent, sold tickets over the other. Under the evidence the court erred in re

fusing to nonsuit and again in denying the motion for a new trial on the minutes.

Buxton v. Northeastern RR. Co., L. R., 3 Q. B., 549, and Bristol & Exeter R. v. Collins, 7 H. L. Cas., 194, distinguished.

Judgment and order reversed and new trial granted, costs to abide event.

Opinion by Follett, J.; Hardin, P.J., and Boardman, J., concur.

MUNICIPAL CORPORATIONS.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT.

Ellen Pompey, respt., v. The Village of Saratoga Springs, applt.

Decided Jan., 1885.

Snow and ice from time to time slid off the roof of a barn which stood at the edge of a sidewalk, and this caused an obstruction forty feet long and nearly three feet high, extending across the whole width of the sidewalk. This pile at both ends descended sharply. It had existed two weeks. It was rather difficult to get up on it and to get down from it. Plaintiff in the daytime passed over it, but, in descending, slipped, there being a light snow on the ground, and was injured. Held, That the question of contributory negligence was for the jury.

A statute authorizing a tax for the "

sup

port of streets" imposes upon a corporation the duty of, and affords it the means for, keeping the sidewalks of such streets free from dangerous accumulations of snow and ice.

Plaintiff fell upon a sidewalk in the defendant village. It was shown that from time to time ice and snow slid off from the slate roof of a barn on the line of the sidewalk and that it had gradually

formed upon this sidewalk an obstruction. This was forty feet long and nearly three feet in height, and at either end it descended very sharply. At the time of the accident this icy accumulation was covered with a light snow. It was rather difficult to climb up it and descend from it. Plaintiff, after having passed over the heap, fell as she was descending. The obstruction had existed two weeks at least. Defendant asked the court to charge that if the obstruction was visible and apparent to any passer-by it was negligence in plaintiff to try and cross it, and that she should have gone around it. The court refused so to charge. Plaintiff had a verdict of $8,000.

C. S. Lester and John L. Henning, for applt.

Chas. M. Davison and L. B. Pike, for respt.

Held, That the charge requested was properly refused. Whether plaintiff was negligent or not was a question of fact. A person who, in the lawful use of a highway, meets with an obstacle therein may yet proceed if it be consistent with reasonable care so to do, and generally this is a question of fact, depending upon the nature of the obstruction and the surrounding circumstances. We do not say that there might not be a case where the danger of going on was so perfectly apparent that doing so might not be negligence as matter of law. But this was not such a case. See 131 Mass., 169; 76 N. Y., 329; 83 Id., 14.

The obstruction here extended across the whole sidewalk. To

have avoided it entirely, therefore, it would have been necessary for plaintiff to go out in the street. When this is the situation, we cannot say that going on and making a careful and cautious effort to cross the obstruction is in all cases negligence as matter of law. Plaintiff may have been passing along, intent upon her business, assuming that the sidewalk was safe, and perhaps did not notice its condition; or if she did not, may have been excused for not noticing it. The requests of defendant took from the jury any consideration of all these questions.

Mere knowledge, previously obtained, of an obstruction does not necessarily show that plaintiff noticed it at the time of the accident: and whether, if the plaintiff did not notice the obstruction, she would then be guilty of negligence, has been held to be a question of fact. 11 Hun, 101; 28 Id., 110; 69 N. Y., 166; 20 W. Dig., 328.

Defendant also defends upon the ground that there was no way under the village charter (Laws of 1866, Chap. 220) of raising funds to keep the streets free from a dangerous accumulation of snow and ice. We do not think this well founded. By § 38 of this charter the village superintendent, within ten days prior to the annual election, must report in writing to the trustees the condition of (among other things) the sidewalks and the probable amount necessary to keep them in good order during the coming year. It is not keeping them in good order to allow a dangerous accumulation of ice and

snow. By 54 the trustees are authorized, for the purpose of providing the means of sustaining the several departments of the village and defraying the expenses of the corporation, to levy and collect an annual tax not exceeding $7,500, for the support of roads, bridges, culverts, streets, lanes and alleys within the village. This language includes the sidewalks of streets, and the expression for the “support of streets," etc., when thus used means keeping the whole street, including the sidewalk, in order and therefore keeping them free of dangerous obstacles. There was no proof of lack of funds in this department. The evidence shows that the superintendent was of opinion that he could not use the funds of this department to clean sidewalks. In this construction we think he was wrong. As no lack of funds is shown, 50 N. Y., 236, and as there were methods provided for raising them, this defense is not made out.

Judgment affirmed, with costs. Opinion by Peckham, J.; Learned, P.J., concurs; Fish, J., dis

sents.

SPECIFIC PERFORMANCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Henry C. Van Arsdale, respt., v. William Perry, applt.

Decided Jan., 1885.

A parol promise by the owner of land to give it to another, accompanied by actual delivery of the possession thereof to him, will be enforced in equity where the promisee is induced by such promise to make

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