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higher than murder in the second walk about 18 feet, and his wife degree. We think the verdict was distant from him 13 feet. proper. There was evidence from He took a revolver from a drawer, which the jury might have found cocked it and deliberately shot her these facts: That the prisoner in the stomach, a wound from and deceased were married in which she soon died. He showed March, 1883, he being 20 and she no remorse. The same afternoon over 30, unattractive and having he denied shooting his wife, gave children, one 13 years old, by a several false versions of the affair, former husband ; that as a soldier's but acted and talked rationally. widow she had a pension of some
He looked as if he had been drink$1,700, with which the saloon ing when he arrived at the jail where the murder was done was soon after the murder, but nothing bought, and which was thereafter peculiar was noticed about him. kept by the prisoner and deceased ; We say these facts might all that they frequently quarreled, and have been found by the jury. that he often swore at and struck The jury, upon a perfectly fair her, threatened to kill her, and on charge, found that there was a two occasions fired off a pistol in deliberate and premeditated design her room, greatly frightening her to effect the death of deceased. and causing her to faint ; that at This question was their peculiar times the prisoner drank to excess, province to decide. We shall not and once since his marriage was interfere. The evidence is stronger treated for delirium tremens; that than that in People v. Conroy, 97 on the morning of July 3, 1984, he N. Y., 62. took two or three drinks of whis- Judgment affirmed and proceedkey with a customer; very soon ings remitted, etc. after his wife came in the bar- Bockes and Landon, JJ., concur. room. He quarreled with her and struck her in the face and kicked
EVIDENCE. her against a table. At this moment the mother of the deceased N. Y. SUPREME COURT. GENERAL rushed at the prisoner to defend
TERM. FIRST DEPT. her child ; the prisoner knocked The People v. The Universal her down. Then a boy, the son of Life Ins. Co. In re Henry C. deceased by her first husband, Bowen. rushed at the prisoner with a large
Decided Jan. 9, 1885. fork. The prisoner struck and disabled him. He then kicked his
B. petitioned the court for an order re
quiring the receiver of an insolvent inwife again, but upon being re
surance company to deliver to him cermonstrated with by a bystander tain paid-up policies of insurance which stopped. He then walked away
he claimed to own and which were in the from his wife, went around a cor
hands of said receiver. The receiver re
sisted the application upon the ground ner of the room and got behind
that such policies had been held by the the bar. To do this he had to
company as collateral security for the
payment of a note made by B. Held, note for said amount and deposited That B. could show by parol evidence
the policies sought to be recovered that the money for which the note was given was not a loan but an advance for ostensibly as security therefor. It services to be performed, which had been further appeared that Bowen had so performed.
advertised the insurance company Appeal by the Receiver of the for three years, and had therefore Universal Life Ins. Co. from an earned the $6,000. The referee order confirming with slight modi- reported in favor of granting Bowfications the report of a referee. en's petition. It was insisted,
Henry C. Bowen petitioned the however, by the receiver of decourt for an order requiring the fendant, that the contract for adReceiver of the Universal Life Ins. vertising and the note being in Co. to deliver to him certain paid- writing, the above facts could not up policies of life insurance which be proved by parol and that the rewere held by such receiver. The lief afforded to Bowen was imreceiver resisted the application properly granted. upon the ground that the policies Charles J. Everett, for applt. had been delivered to the company George C. Holt, for respt. by Bowen as collateral security for Held, That the rule excluding the payment of a note made by parol evidence does not prevent a him which had not been paid. party to an agreement from provThe matter was referred to a ref- ing, by way of defence, the exeree to take evidence and report istence of an oral agreement made the same to the court with his in connection with the written infindings of fact and conclusions of strument where the circumstances law thereon. Before such referee would make the use of the latter it appeared that Bowen had re- for any purpose inconsistent with lieved the insurance company of a the oral agreement, dishonest or lease upon which it was liable for fraudulent, and that as the conrent and which it did not desire, sideration of an agreement is open and that in consideration therefor to inquiry, the party may show the company had agreed to adver- that the design and object of the tise to the amount of $2,000 per written instrument were different year for six years in a paper pub- from what its language if alone lished by Bowen and to pay $6,000 considered would indicate, 92 N. of such amount in advance, and Y., 529, and that it would be manithat the company desired that this festly dishonest to allow the trans$6,000 should appear to be a loan action between Bowen and the and that Bowen should give his Universal Co. to be treated as a note therefor, the payments upon loan when in fact it was an adwhich should equal and fall due at vance for services to be rendered, the same time as the payments to to secure which a valuable conBowen upon the advertising con- sideration was given. tract and so offset each other. То Order affirmed, with the excepthis Bowen agreed and gave his tion of a part fixing the value of
Vol 21-No. 5b,
the policies in question, for the On Nov. 21, 1882, plaintiff purreason that that subject was not chased of defendant at Oswego a included in the order of reference. railroad ticket to Fulton station
Opinion by Brady, J.; Davis, and an omnibus ticket to Fulton P.J., and Daniels, J., concur. village. Defendant safely carried
plaintiff to Fulton station, where
he entered an omnibus. An acciCOMMON CARRIERS. dent happened, by which plaintiff N. Y. SUPREME COURT. GENERAL
was thrown from the omnibus and TERM. FOURTH DEPT.
A motion for non-suit was deThomas G. Poole, respt., v. The nied, as was also a motion for a D., L. & W. RR. Co., applt.
new trial on the minutes, made on Decided Jan., 1885.
the grounds that the verdict was Defendant sold separate tickets to plaintiff contrary to law; that it was conover its own and a connecting line in trary to evidence, and on the excepwhich it was not interested, but for which
tions taken. it sold tickets as ageut. Ileld, that the
Rhodes, Coon & Higgins, for separate tickets were insufficient evidence to justify the conclusion that defendant applt. contracted to carry plaintiff beyond its W. C. Crombie, for respt. line, and that it was not liable for injuries Held, Error. The separate occurring on the connecting line.
tickets delivered to plaintiff, Appeal from judgment in favor whether regarded as contracts or of plaintiff, entered on verdict for tokens, are insufficient evidence to $350 damages, and from order de justify the conclusion, as a matter nying motion for a new trial on of law, or of fact, that defendant the minutes.
contracted to carry plaintiff beyond Action to recover for injuries Fulton station. 53 N. Y.,' 363. sustained by plaintiff. Defendant See also 61 N. Y., 538 ; 94 id., 278; is a common carrier of passengers 56 Me., 234 ; 107 U. S., 102; 99 by a railroad extending from Os- Mass., 220; 100 id., 26 ; Wharton wego to Syracuse, and passing a on Neg., SS 582, 583; 2 Rorer on station called Fulton. The village Railroads, 975. of Fulton is about one mile east of Each ticket is, as it purports to the station, and between the sta- be, an independent contract or totion and village a line of omnibuses ken; one by the railroad, to carry is run by one H. By an arrange- from Oswego to Fulton station, ment between defendant and H. and the other by the omnibus line each sold tickets over the line of to carry from Fulton station to the other and accounted for the Fulton village. In this case the sales, but they did not share in the uncontradicted evidence is that the profits and losses of the business two lines were not connected in of the respective parties to the ar- business except that each, as agent, rangement. The tickets were on sold tickets over the other. Under separate cards, one for each line. the evidence the court erred in refusing to nonsuit and again in de formed upon this sidewalk an obnying the motion for a new trial struction. This was forty feet long on the minutes.
and nearly three feet in height, Buxton v. Northeastern RR. Co., and at either end it descended very L. R., 3 Q. B., 519, and Bristol & sharply. At the time of the acciExeter R. v. Collins, 7 H. L. Cas., dent this icy accumulation was 191, distinguished.
covered with a light snow. It was Judgment and order reversed rather difficult to climb up it and and new trial granted, costs to descend from it. Plaintiff, after abide event.
having passed over the heap, fell Opinion by Follett, J.; Hardin, as she was descending. The obP.J., and Boardman, J., concur.
struction had existed two weeks at least. Defendant asked the court
to charge that if the obstruction MUNICIPAL CORPORATIONS. was visible and apparent to any NEGLIGENCE.
passer-by it was negligence in N. Y. SUPREME COURT. GENERAL plaintiff to try and cross it, and TERM. THIRD DEPT.
that she should have gonj around
it. The court refused so to charge. Ellen Pompey, respt., v. The Plaintiff had a verdict of $8,000. Village of Saratoga Springs, applt. C. S. Lester and John L. HenDecided Jan., 1885.
ning, for applt. Snow and ice from time to time slid off the
Chas. M. Davison and L. B. roof of a barn which stood at the edge of Pike, for respt. a sidewalk, and this caused an obstruc- Held, That the charge requested tion forty feet long and nearly three feet
was properly refused. Whether high, extending across the whole width of the sidewalk. This pile at both ends plaintiff was negligent or not was descended sharply. It had existed two a question of fact. A person who, weeks. It was rather difficult to get up in the lawful use of a highway, on it and to get down from it. Plaintiff meets with an obstacle therein in the daytime passed over it, but, in descending, slipped, there being a light may yet proceed if it be consistent snow on the ground, and was injured. with reasonable care so to do, and Held, That the question of contributory generally this is a question of fact, negligence was for the jury.
depending upon the nature of the A statute authorizing a tax for the “support of streets” imposes upon a corpora
obstruction and the surrounding tion the duty of, and affords it the means circumstances. We do not say for, keeping the sidewalks of such streets that there might not be a case free from dangerous accumulations of
where the danger of going on was snow and ice,
so perfectly apparent that doing so Plaintiff fell upon a sidewalk might not be negligence as matter in the defendant village. It was of law. But this was not such a shown that from time to time ice case. See 131 Mass., 169; 76 N. Y., and snow slid off from the slate 329; 83 Id., 14. roof of a barn on the line of the The obstruction here extended sidewalk and that it had gradually across the whole sidewalk. To have avoided it entirely, therefore, snow. By $ 54 the trustees are it would have been necessary for authorized, for the purpose of proplaintiff to go out in the street. viding the means of sustaining the When this is the situation, we several departments of the village cannot say that going on and mak- and defraying the expenses of the ing a careful and cautious effort to corporation, to levy and collect an cross the obstruction is in all cases annual tax not exceeding $7,500, negligence as matter of law. for the support of roads, bridges, Plaintiff may have been passing culverts, streets, lanes and alleys along, intent upon her business, within the village. This language assuming that the sidewalk was includes the sidewalks of streets, safe, and perhaps did not notice its and the expression for the “supcondition ; or if she did not, may port of streets,” etc., when thus have been excused for not noticing used means keeping the whole it. The requests of defendant street, including the sidewalk, in took from the jury any considera- order and therefore keeping them tion of all these questions.
free of dangerous obstacles. There Mere knowledge, previously ob- was no proof of lack of funds in tained, of an obstruction does not this department. The evidence necessarily show that plaintiff no- shows that the superintendent was ticed it at the time of the accident: of opinion that he could not use and whether, if the plaintiff did the funds of this department to not notice the obstruction, she clean sidewalks. In this construcwould then be guilty of negligence, tion we think he was wrong. As has been held to be a question of no lack of funds is shown, 50 N. fact. 11 Hun, 101; 28 Id., 110; Y., 236, and as there were methods 69 N. Y., 166; 20 W. Dig., 328. provided for raising them, this de
Defendant also defends upon the fense is not made out. ground that there was no way un- Judgment affirmed, with costs. der the village charter (Laws of
Opinion by Peckham, J.; Lear1866, Chap. 220) of raising funds to ned, P.J., concurs; Fish, J., diskeep the streets free from a dan- sents. gerous accumulation of snow and ice. We do not think this well
SPECIFIC PERFORMANCE. founded. By $ 38 of this charter the village superintendent, within N. Y. SUPREME COURT. GENERAL ten days prior to the annual elec
TERM. FIFTH DEPT. tion, must report in writing to the
Henry C. Van Arsdale, respt., trustees the condition of (among
v. William Perry, applt. other things) the sidewalks and the probable amount necessary to
Decided Jan., 1885. keep them in good order during A parol promise by the owner of land to the coming year. It is not keep
give it to another, accompanied by actual
delivery of the possession thereof to him, ing them in good order to allow a
will be enforced in equity where the prodangerous accumulation of ice and
misee is induced by such promise to make