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the commencement of the action

cure a good draft, but drew an unauof foreclosure and the filing of a

thorized draft on the charterers, having at lis pendens therein.

that time no money in their hands, and

such draft when presented was dishonHeld, That by $ 132 of the Code

ored. Held, That an action could not be of Procedure, and SS 1670-1 of the maintained against the charterers to reCode of Civ. Pro., an assignee in

cover the freight for which the draft was

taken. bankruptcy was to be considered, and was, under such circumstances, Appeal from a judgment recova subsequent purchaser or incum- ered on the report of a referee. brancer, and was not a necessary

The defendant chartered the party to the action.

bark “Bessie” for a voyage from the Order affirmed.

U. S. to Cadiz and return. By the Opinion by Daniels, J.; Davis,

terms of the charterparty a portion P.J., and Brady, J., concur.

of the freight was to be paid at Cadiz in cash. On arriving at that

port plaintiff reported to P., the CHARTER PARTY.

PAY. agent of defendants and the conMENT.

signee of the cargo, and delivered

the cargo to him. P. collected on N. Y. SUPREME COURT. GENERAL the cargo with the knowledge of TERM. FIRST DEPT.

plaintiff
more than

sufficient William B. Holdsworth, as mas- money to pay the freight due the ter and agent for the owners of latter. Plaintiff wished to remit the British Bark “Bessie,” respt.,

to his owners and, instead of rev. P. A. De Belaunzaran et al., ceiving his freight in cash, for conapplts.

venience in so doing, allowed P.

to undertake to procure a draft Decided Jan. 9, 1885.

for him and forward the same to When by a charter party provision is made his owners, and relied upon his

for payment of the freight in a particular statement that he had done so withplace and in a particular manner, and the debtor provides the requisite funds at the

out investigating its truth. P. did place named, if the creditor does not ac- not procure a good draft, but forcept payment in the manner agreed upon warded his own draft upon defendhe assumes whatever risk is attendant

ants, which he was not authorupon his omission to do so. By the terms of a charter party a portion of

ized to draw, they having no funds the freight was to be paid at Cadiz in

of his in their hands at that time. cash. Upon arriving there the master of Such draft was dishonored when the vessel, although knowing that the char- presented and plaintiff thereupon terer's agent at that place had sufficient

commenced this action to recover moneys of theirs in his hands with which to pay the freight, for convenience in re- the freight for which it mitting the same to the owners, allowed drawn. such agent to undertake to procure a S. L. Rives, for applts. draft for him and forward the same to

J. A. Shoudy, for respt. them, and relied upon the statement of such agent that he had done so without

Held, That when by a charter investigation. Such agent did not pro- party provision is made for pay.

was

to do so.

ment at a particular place and in the obligation of defendants for a particular manner, and the debtor its payment was neither released provides the requisite funds at the nor satisfied. place named, if the creditor does not accept payment in the manner

RAILROADS. agreed upon he assumes whatever risk is attendant upon his omission N. Y. SUPREME COURT. GENERAL Abbott on Shipping,

TERM. SECOND DEPT. 414, 420; McLaughlin on Shipping, Fleckenstein v. The Dry Dock, 2 Ed., 484; 1 Parsons on Shipping E. B. & B. RR. Co. and Admiralty, 305; 1 Maude & Decided Feb., 1885. Pollock's Merchant Shipping, 387. That defendants put into the

A street railway company does not possess

the exclusive right of way in the streets hands of P. as their agent, with the of a city in the sense that he is a tres. knowledge of plaintiff, the funds passer who undertakes to use its tracks with which to discharge their ob

at all, so that the company may hunt him ligations under the charter. That

out of the way ad libitum.

The railway has the paramount right to plaintiff had only to demand and

move through the street on its tracks, receive them. That the act of leav- but truckmen have the right to drive ing the money due him in the hands across or upon the same and to make of P. to purchase a draft was solely

general use of the same so long as they

do not obstruct the passage of the cars. that of plaintiff voluntarily per- What is to be deemed such an obstruction formed without the knowledge or is a question dependent on the particular consent of defendants and that that

circumstances of each case as it arises. act transferred the money from the Appeal from judgment entered hands of P. as defendants' to his on verdict at Circuit. · hands as plaintiff's agent and

Action for negligence. defendants were not liable for the Plaintiff was the driver of a beer consequences of the fraud by which wagon.

He testified that he P. converted such money to his stopped to deliver some beer to a own use. 4 Campbell, 262 ; 6 B. customer, leaving his team as close & C. 160 ; 45 N. Y., 64.

to the curb as was practicable; Judgment reversed and new trial that he left his wagon to go into ordered.

the customer's building and found Opinions by Davis, P.J., and on his return that his team had Brady, J.

been moved by some street sweepDaniels, J., dissents upon the ers, so that his wagon was parground that while plaintiff had tially over the track; seeing the consented to receive such a draft approaching car he endeavored to as would remit the freight to his get out of its way, but before he owners he never agreed to and could do so the car struck his never did accept the draft which wagon with such force as to knock P. drew upon defendants, and that him off and severely injure him. there was accordingly no payment The case was submitted to the made of the freight to plaintiff and jury.

was

Held, That a street-railway com- PRACTICE. GUARDIAN. pany has not the exclusive right N. Y. SUPREME Court. GENERAL of way in the streets of a city in

TERM. SECOND DEPT. any such sense that a person is a trespasser who undertakes to use Jane M. Simis, respt., v. The its tracks at all, so that they may

New York College of Dentistry, hunt him out of the way ad libi- applt. tum. That the railway has the Decided Feb., 1885. paramount right to move through

At the time of the commencement of the the street on its tracks. But truck

action the plaintiff was a minor, but she men have a right to drive across became of age prior to the trial thereof. or upon the tracks, and to make No guardian was ever appointed. Held,

That such omission did not affect the general use of them so long as

jurisdiction of the court ; that such omisthey do not obstruct the passage sion at the time of the commencement of of the cars.

the action was an irregularity merely, What is to be deemed such an

which

waived by defendant's obstruction must depend upon a

pleading to the merits, and that when variety of circumstances which

plaintiff obtained her majority the ne

cessity for a guardian had ceased to exist. vary in any specific case, as e. g.

Appeal from a judgment enthe crowded condition of the

tered on the verdict of a jury at street, snow or ice therein, the

Circuit. width of the street, etc.

At the time of the commenceTherefore it follows that the

ment of this action plaintiff was a propriety of plaintiff's conduct must in part at least depend upon prior to the trial of the case.

minor, but she became of age

No the promptness with which he was getting his truck out of the guardian was appointed. way, and that would depend on

J. L. Overfield, for respt. the weight of the load, the strength

M. Walsh, for applt. of his team, etc.--all of them facts.

Held, That the omission to have Therefore the first motion to dis- a guardian appointed did not affect miss the complaint was properly the jurisdiction of the court. That denied.

such omission at the time of the That as there was a plain case

commencement of the action was of conflict of evidence when the an irregularity merely. That by motion was renewed at the end of pleading to the merits this irreguthe case the court properly submit- larity was waived. That when ted the case to the jury.

the plaintiff attained her majority That no matter how disinterested the necessity for a guardian ceased. a witness may be the court is not 14 Hun, 276; 9 Bosw., 639. That bound to accept his story if there plaintiff must therefore be rebe anything in conflict with it. garded as rectus in curia.

Judgment affirmed, with costs. Judgment affirmed.

Opinion by Pratt, J.; Barnard, Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur. P.J., and Dykman, J., concur.

Vol. 21-No. 6a.

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JUSTICE'S COURT. PRAC- That inasmuch as defendant de-
TICE.

murred this case is governed by

the provision of the Code, and it N. Y. SUPREME COURT. GENERAL

was incumbent on plaintiff to prove TERM. SECOND DEPT.

his claim, inasmuch as the LegisAlphonse Oatman, respt.,

respt., v. lature has said that plaintiff must George Schmidt, applt.,

prove his case in all cases except Decided Feb., 1885.

those stated in the said Act of 1881.

Aside from this, however, this action In an action in a Justice's Court a demurrer to a sworn complaint was overruled with

did not come within the purview of leave to answer. Defendant failed to the Act of 1881 as one solely arisanswer, and thereupon the justice without ing on a contract for the recovery any proof of plaintiff's claim entered judgment for the full amount claimed. On

of money only or on an account. an appeal from the judgment of the Judgment reversed, with costs. County Court affirming the judgment, Opinion by Pratt, J.; Dykman, J., Held, Error; that plaintiff ought to have

concurs. Barnard, P.J., thinks proven his claim, and that until then no

the claim came within the actions judgment should have been rendered in his favor.

described in the Act of 1881, and

dissents. Appeal from judgment of County Court, affirming judgment of Justice's Court.

PRACTICE. SERVICE ON The action was commenced in a

AGENT. justice's court by the service of a N. Y. SUPREME COURT. GENERAL summons and a sworn complaint

TERM. SECOND DEPT. on defendant. To this defendant

Palmer v. The Pennsylvania demurred on the ground that two causes of action were improperly

Company. united. The justice overruled the Decided Feb., 1885. demurrer with leave to answer. The provision of the Code regarding a serDefendant failed to answer ; and 'vice upon an agent, stating that such an thereupon the justice, without any

one must be “managing agent," does not

mean that he must have charge of the proof as to plaintiff's claim rendered

whole business of the corporation. judgment for the full amount The statute is satisfied if such an one be claimed in the complaint, which a managing agent to any extent. was affirmed in the County Court.

Every object of the service is attained when

the agent is of sufficient character and C. L. Brower, for respt.

rank to make it reasonably certain that J. Hess, for applt.

the defendant will be apprized of the

service made. Held, That $2871 of the Code of Civil Procedure is not repealed by

Appeal from an order. Ch. 414, Laws of 1881, and must

Grant B. Taylor, for respt. be read in connection with $ 3 of

R. F. Wilkinson, for applt. said Chapter and such construction Held, The provision of the Code given that both should stand if that the person upon whom the that be possible.

service is made must be “manag

ing agent” does not mean that the the steamer and went with him to agent must have charge of the the main deck to hide away his whole business of the corporation. tools over night. The engineer

Every object of the service is at- put them inside the boiler and told tained when the agent served is of him that he would find them there sufficient character and rank to the next morning. At 7 A. M. the make it reasonably certain that the next day plaintiff returned to the defendant will be apprized of the vessel to continue his work on the service made. The statute is satis- hurricane deck, and went to the fied if he be a managing agent to engine-room on the deck below to any extent.

get his tools from where they were Order affirmed with costs.

hidden the night before, and in Opinion by Pratt, J.

walking along the lower or main deck fell into a bunker hole, which

was then open, and was injured. MASTER AND SERVANT.

F. A. Ward, for applt.
NEGLIGENCE.

Ullo, Reubsaemen & Hubbe, for N. Y. SUPREME COURT. GENERAL

respt. TERM. SECOND DEPT.

Held, That, inasmuch as plain

tiff's work was upon the spar-deck, John Belford, applt., v. The if he chose to go upon the other Camden Shipping Co., respt. parts of the vessel for his own Decided Feb., 1885.

purposes, he went there upon his As long as the master keeps the places where

own risk. the servant is employed, or where he is So long as the master kept the likely to go in the course of that employ places where the workman was emment, safe, he discharges his whole duty in that regard. Accordingly, where an ployed, or likely to go, in a safe employe at the instance of another em. condition, he discharged his whole ploye and not in the course of his em- duty in that regard. See 120 Mass., ployment went to a part of a vessel

306; 10 Allen, 385. It cannot be where he had no business or employment and was there injured by falling down an

said that plaintiff was invited or open hatchway, Held, that the master licensed to go forward to the boiler, was not liable.

or that he went there in any conAppeal from a judgment entered nection with the work he was emon an order dismissing the com- ployed to do. There was neither plaint at the close of plaintiff's an express or implied invitation by evidence.

defendant to plaintiff to go where Plaintiff, a carpenter, on Jan- he was injured, and there being no uary 8th, 1883, was employed conflict of evidence it became a in erecting some cattle stalls question of law for the trial judge on the upper or hurricane deck to determine. of defendant's steamer.

Judgment affirmed, with costs. certain day after he had stopped Opinion by Pratt, J.; Dykman, work and was about to go home, J., concurs. Barnard, P.J., dishe met the assistant-engineer of sents.

On a

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