the commencement of the action of foreclosure and the filing of a lis pendens therein. cure a good draft, but drew an unauthorized draft on the charterers, having at that time no money in their hands, and such draft when presented was dishonored. Held, That an action could not be maintained against the charterers to recover the freight for which the draft was taken. Held, That by § 132 of the Code of Procedure, and $$ 1670-1 of the Code of Civ. Pro., an assignee in bankruptcy was to be considered, and was, under such circumstances, a subsequent purchaser or incum-ered on the report of a referee. brancer, and was not a necessary party to the action. Order affirmed. Opinion by Daniels, J.; Davis, P.J., and Brady, J., concur. Appeal from a judgment recov The defendant chartered the bark "Bessie" for a voyage from the U. S. to Cadiz and return. By the terms of the charterparty a portion 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 con MENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. William B. Holdsworth, as master and agent for the owners of the British Bark "Bessie," respt., v. P. A. De Belaunzaran et al., applts. Decided Jan. 9, 1885. When by a charter party provision is made for payment of the freight in a particular place and in a particular manner, and the debtor provides the requisite funds at the place named, if the creditor does not accept payment in the manner agreed upon he assumes whatever risk is attendant upon his omission to do so. By the terms of a charter party a portion of the freight was to be paid at Cadiz in cash. Upon arriving there the master of the vessel, although knowing that the char terer's agent at that place had sufficient moneys of theirs in his hands with which to pay the freight, for convenience in remitting the same to the owners, allowed such agent to undertake to procure a draft for him and forward the same to them, and relied upon the statement of such agent that he had done so without investigation. Such agent did not pro signee of the cargo, and delivered the cargo to him. P. collected on the cargo with the knowledge of plaintiff more than sufficient money to pay the freight due the latter. Plaintiff wished to remit to his owners and, instead of receiving his freight in cash, for convenience in so doing, allowed P. to undertake to procure a draft for him and forward the same to his owners, and relied upon his statement that he had done so without investigating its truth. P. did not procure a good draft, but forwarded his own draft upon defendants, which he was not authorized to draw, they having no funds of his in their hands at that time. Such draft was dishonored when presented and plaintiff thereupon . commenced this action to recover the freight for which it was drawn. S. L. Rives, for applts. Held, That when by a charter party provision is made for pay ment at a particular place and in a particular manner, and the debtor provides the requisite funds at the place named, if the creditor does not accept payment in the manner agreed upon he assumes whatever risk is attendant upon his omission to do so. Abbott on Shipping, 414, 420; McLaughlin on Shipping, 2 Ed., 484; 1 Parsons on Shipping and Admiralty, 305; 1 Maude & Pollock's Merchant Shipping, 387. the obligation of defendants for its payment was neither released nor satisfied. RAILROADS. N. Y. SUPREME COURT. GENERAL Fleckenstein v. The Dry Dock, Decided Feb., 1885. A street railway company does not possess the exclusive right of way in the streets of a city in the sense that he is a trespasser who undertakes to use its tracks at all, so that the company may hunt him out of the way ad libitum, The railway has the paramount right to move through the street on its tracks, but truckmen have the right to drive across or upon the same and to make general use of the same so long as they do not obstruct the passage of the cars. What is to be deemed such an obstruction is a question dependent on the particular circumstances of each case as it arises. That defendants put into the hands of P. as their agent, with the knowledge of plaintiff, the funds with which to discharge their obligations under the charter. That plaintiff had only to demand and receive them. That the act of leaving the money due him in the hands of P. to purchase a draft was solely that of plaintiff voluntarily performed without the knowledge or consent of defendants and that that act transferred the money from the hands of P. as defendants' to his hands as plaintiff's agent and defendants were not liable for the consequences of the fraud by which P. converted such money to his own use. 4 Campbell, 262; 6 B. & C. 160; 45 N. Y., 64. Judgment reversed and new trial that he left his wagon to go into ordered. Opinions by Davis, P.J., and Brady, J. Daniels, J., dissents upon the ground that while plaintiff had consented to receive such a draft as would remit the freight to his owners he never agreed to and never did accept the draft which P. drew upon defendants, and that there was accordingly no payment made of the freight to plaintiff and Appeal from judgment entered on verdict at Circuit. Action for negligence. Plaintiff was the driver of a beer wagon. He testified that he stopped to deliver some beer to a customer, leaving his team as close to the curb as was practicable; the customer's building and found on his return that his team had been moved by some street sweepers, so that his wagon was partially over the track; seeing the approaching car he endeavored to get out of its way, but before he could do so the car struck his wagon with such force as to knock him off and severely injure him. The case was submitted to the jury. TERM. SECOND DEPT. 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 any such sense that a person is a trespasser who undertakes to use its tracks at all, so that they may hunt him out of the way ad libitum. That the railway has the paramount right to move through the street on its tracks. But truckmen have a right to drive across or upon the tracks, and to make general use of them so long as they do not obstruct the passage of the cars. What is to be deemed such an obstruction must depend upon a variety of circumstances which vary in any specific case, as e. g. the crowded condition of the street, snow or ice therein, the width of the street, etc. Therefore it follows that the propriety of plaintiff's conduct must in part at least depend upon the promptness with which he was getting his truck out of the way, and that would depend on the weight of the load, the strength of his team, etc.-all of them facts. Therefore the first motion to dis miss the complaint was properly denied. That as there was a plain case of conflict of evidence when the motion was renewed at the end of the case the court properly submitted the case to the jury. That no matter how disinterested a witness may be the court is not bound to accept his story if there be anything in conflict with it. Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur. Vol. 21-No. 6a. Jane M. Simis, respt., v. The New York College of Dentistry, applt. Decided Feb., 1885. At the time of the commencement of the action the plaintiff was a minor, but she became of age prior to the trial thereof. No guardian was ever appointed. Held, That such omission did not affect the jurisdiction of the court; that such omission at the time of the commencement of the action was an irregularity merely, which was waived by defendant's pleading to the merits, and that when plaintiff obtained her majority the necessity for a guardian had ceased to exist. Appeal from a judgment entered on the verdict of a jury at Circuit. At the time of the commencement of this action plaintiff was a prior to the trial of the case. minor, but she became of age guardian was appointed. J. L. Overfield, for respt. No Held, That the omission to have a guardian appointed did not affect the jurisdiction of the court. That such omission at the time of the commencement of the action was an irregularity merely. That by pleading to the merits this irregularity was waived. That when the plaintiff attained her majority the necessity for a guardian ceased. 14 Hun, 276; 9 Bosw., 639. That plaintiff must therefore be regarded as rectus in curia. Judgment affirmed. Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur. JUSTICE'S COURT. PRAC- N. Y. SUPREME COURT. GENERAL Alphonse Oatman, respt., V. George Schmidt, applt., Decided Feb., 1885. In an action in a Justice's Court a demurrer to a sworn complaint was overruled with leave to answer. Defendant failed to answer, and thereupon the justice without any proof of plaintiff's claim entered judg On ment for the full amount claimed. an appeal from the judgment of the County Court affirming the judgment, Held, Error; that plaintiff ought to have proven his claim, and that until then no judgment should have been rendered in his favor. Appeal from judgment of County Court, affirming judgment of Justice's Court. The action was commenced in a justice's court by the service of a summons and a sworn complaint on defendant. To this defendant demurred on the ground that two causes of action were improperly united. The justice overruled the demurrer with leave to answer. Defendant failed to answer; and thereupon the justice, without any proof as to plaintiff's claim rendered judgment for the full amount claimed in the complaint, which was affirmed in the County Court. C. L. Brower, for respt. J. Hess, for applt. Held, That $ 2871 of the Code of Civil Procedure is not repealed by Ch. 414, Laws of 1881, and must be read in connection with § 3 of said Chapter and such construction given that both should stand if that be possible. That inasmuch as defendant demurred this case is governed by the provision of the Code, and it was incumbent on plaintiff to prove his claim, inasmuch as the Legislature has said that plaintiff must prove his case in all cases except those stated in the said Act of 1881. Aside from this, however, this action did not come within the purview of the Act of 1881 as one solely arising on a contract for the recovery of money only or on an account. Judgment reversed, with costs. Opinion by Pratt, J.; Dykman,J., concurs. Barnard, P.J., thinks the claim came within the actions described in the Act of 1881, and dissents. The Pennsylvania Palmer v. Company. Decided Feb., 1885. The provision of the Code regarding a ser'vice upon an agent, stating that such an one must be "managing agent," does not mean that he must have charge of the whole business of the corporation. The statute is satisfied if such an one be a managing agent to any extent. Every object of the service is attained when the agent is of sufficient character and rank to make it reasonably certain that the defendant will be apprized of the service made. Appeal from an order. Grant B. Taylor, for respt. Held, The provision of the Code that the person upon whom the service is made must be "manag ing agent" does not mean that the agent must have charge of the whole business of the corporation. Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprized of the service made. The statute is satisfied if he be a managing agent to any extent. Order affirmed with costs. MASTER AND SERVANT. NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. John Belford, applt., v. The Camden Shipping Co., respt. Decided Feb., 1885. As long as the master keeps the places where the servant is employed, or where he is likely to go in the course of that employment, safe, he discharges his whole duty in that regard. Accordingly, where an employe at the instance of another employe and not in the course of his employment went to a part of a vessel where he had no business or employment and was there injured by falling down an open hatchway, Held, that the master was not liable. Appeal from a judgment entered on an order dismissing the complaint at the close of plaintiff's evidence. Plaintiff, a carpenter, on January 8th, 1883, was employed in erecting some some cattle stalls on the upper or hurricane deck of defendant's steamer. On a certain day after he had stopped work and was about to go home, he met the assistant-engineer of the steamer and went with him to the main deck to hide away his tools over night. The engineer put them inside the boiler and told him that he would find them there the next morning. At 7 A. M. the next day plaintiff returned to the vessel to continue his work on the hurricane deck, and went to the engine-room on the deck below to get his tools from where they were hidden the night before, and in walking along the lower or main deck fell into a bunker hole, which was then open, and was injured. F. A. Ward, for applt. Ullo, Reubsaemen & Hubbe, for respt. Held, That, inasmuch as plaintiff's work was upon the spar-deck, if he chose to go upon the other parts of the vessel for his own purposes, he went there upon his own risk. So long as the master kept the places where the workman was employed, or likely to go, in a safe condition, he discharged his whole duty in that regard. See 120 Mass., 306; 10 Allen, 385. It cannot be said that plaintiff was invited or licensed to go forward to the boiler, or that he went there in any connection with the work he was employed to do. There was neither an express or implied invitation by defendant to plaintiff to go where he was injured, and there being no conflict of evidence it became a question of law for the trial judge to determine. Judgment affirmed, with costs. Opinion by Pratt, J.; Dykman, J., concurs. Barnard, P.J., dissents. |