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plaintiff to advance money or pay enlarged his liability, and defendthe notes, and gave evidence tend- ant received a benefit. ing to prove that he indorsed the The respondent now objects that notes for the accommodation of S., the case was not a proper one to and offered to show that they be heard in the first instance at were discounted by plaintiff at | General Term, where a decision usurious rates. This evidence was was rendered in his favor. It does excluded and the judge in submit- not appear that he objected at the ting the case to the jury said that trial to directions sending the case the only question for them to pass

to the General Term. upon was whether on the 24th of Held, That it is now too late to May defendant requested plaintiff object. to take up the notes and whether Order of General Term, setting plaintiff on that request took them aside verdict for plaintiff and diup, “if so he is entitled to a ver- recting a new trial, reversed, and dict, otherwise it will be for de- judgment ordered on verdict for fendant.” Defendant claims that plaintiff. as plaintiff was under a prior legal Opinion by Danforth, J. All obligation to pay the notes his concur. doing so, although at defendant's request, creates no liability on the MASTER AND SERVANT. part of the latter.

NEGLIGENCE. W. I. Butler, for applt.

N. Y. COURT OF APPEALS. James R. Marvin, for respt. Brick, admrx., respt., v. The

Rochester, N. Y. & Pa. RR. Co., Held, Untenable; that the obligation primarily incurred by plain

applts. tiff was a contingent one; that it

Decided Feb. 10, 1885. was not an obligation to defendant Intestate was in the employ of defendant and he was not in any manner

engaged in repairing the track. The con

struction train on which he was riding interested in its performance; that

ran off the track at a crossing where mud his obligations upon the paper did had been thrown on the track by passing not prevent such an express con- wheels and had frozen, filling up the rails, tract as the one proved by plaintiff.

and he was killed. One T., who was in

charge of the train, was also general It was not necessary to sustain it

foreman of repairs and charged with the that it should appear that defend- duty of seeing that crossings were propant acquired any actual advantage. erly cleaned and in safe condition, and It is enough that at his request this he had attempted to do. Held, that something was done which origi

intestate in performing these services

must be assumed to have understood the nally plaintiff had not undertaken

condition of the road and subjected himto do. 1 Taunt., 523; 4 id., 611 ; 9 self to greater risks than he would have C. B., N. S., 159; 10 id., 259 ; 6 H.

incurred under ordinary circumstances,

and that T. in the duties he was perform& N., 295; 7 N. Y., 349; 59 id., 250;

ing at the time, was only a fellow-servant 45 id., 45. Plaintiff waived a right

for whose negligence defendant was not to which he was entitled, and so liable.

This action was brought to re- assumed to have understood the cover damages for the death of condition of defendant's road, and B., plaintiff's intestate. It ap- thus subjected himself to greater peared that at the time B. was risks and perils than he would killed the railroad, over which he have incurred under ordinary cirwas passing in a car of defendant cumstances. The obstruction on on which he was employed, had the track was not a defect of an been allowed to fall into decay and intrinsic character, but one which was then in process of reconstruc- arose from extrinsic and temporary tion. He was one of a number of causes for which defendant would laborers who were repairing the not be liable: that T., in the catrack and had been passing over it pacity in which he acted, was only and was familiar with it. The a fellow servant, and defendant train ran off the track at a crossing was not liable for his negligence. and the accident was attributable The fact that T. had imposed upon to the fact that rain had fallen the him larger duties, embracing the previous night, which caused the construction of the entire road, mud from passing wagon wheels does not alter his relation here. to fill up the space alongside of Even if T. may be regarded as repthe rails, in which the flanges of resenting defendant in some resthe wheels ought to run, and this pects in reference to the road mud froze solid and prevented the generally, the duties he was percars from passing along on the forming at the time of the accitrack. One T. was general fore- dent were those of a fellow servant man in reconstructing and repair and not of the master, and if he ing defendant's track and had the was chargeable with negligence it direction of the movements of its was that of a fellow servant and trains, and was charged with the not of the master. $1 N. Y., 516; duty of seeing that the crossings 84 id., 77. were properly cleaned and kept in The court was requested and resafe condition for the passage of fused to charge that if T. knew of trains. He had charge of the train the defect in the crossing proven, in question at the time of the ac- and undertook to start the train cident, and had attempted to per- without removing it, it was the form the service with which he negligence of a co-employe and was charged. The court held that plaintiff could not recover. defendant was liable for the negli

Held, Error. gence of T. and denied a motion to dismiss the complaint.

Judgment of General Term, Sherman S. Rogers, for applt.

affirming judgment on verdict for F. C. Peck, for respt.

plaintiff, reversed, and new trial Held, Error ; that B. in per

ordered. forming the services in which he Opinion by Miller, J. All conwas engaged and in traveling on cur; Earl, J., on last ground. the construction train may be Danforth, J., absent.

FIRE INSURANCE. AGENCY, 1882. On March 3 plaintiff ex

ecuted and delivered to one 0. a N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

power of attorney to transact her

business, rent buildings and land, Mary Dietrick v. The Firemen's sell personal property, insure buildFund Ins. Co., of San Francisco. ing, pay for the insurance of the Decided Jan., 1885.

house, proceed with papers for the An oral contract to insure property for one

pardon of herself and husband and year against loss by fire by a written “for the transaction of my busicontract to be thereafter delivered, but to

ness of every name and nature." take effect immediately, is valid and if a

March 8, 1882, defendant issued loss occurs before the written contract is delivered the insured may recover on the

a policy on said house for one year. oral contract.

It provided that “No liability shall When a principal, intending to create a exist under this policy for loss on special agent with power to do a single

any vacant cr unoccupied building, act, negligently executes and puts forth a

unless consent for such vacancy general power of attorney under which the agent acts, the principal is bound as or unoccupancy be hereon enbetween himself and a third person act

dorsed." "Proofs of loss under ing in good faith.

this policy as herein required must Motion for new trial on excep- be made and filed by the assured tions ordered heard at General within 60 days from the date of Term in the first instance after the fire.” “No action * * * for non-suit.

the recovery of any claim by virtue Action to recover for the loss of of this policy shall be sustainable a building by fire. The complaint *** unless commenced within alleges that Feb. 25, 1882, defend six months next after the loss ant by its duly authorized agent shall occur.” The loss, if any, was orally agreed, in consideration of made payable to the mortgagee. $13 then paid, to insure plaintiff's In all these respects the policy diffunoccupied house and contents for ered from that called for by the one year from that date against oral contract. The uncontradicted loss by fire by a written contract testimony showed that this policy thereafter to be delivered; that was exhibited by defendant's agent defendant failed to deliver a policy to O., who examined it and handed as agreed, and that Aug. 3, 1882 it to the agent to keep. the property was burned. Evi- Plaintiff testified that she signed dence was given tending to prove the power of attorney supposing it these facts. It also appeared that authorized 0. to sell a colt, and that the contract was made in the jail | she did not ask to have it read at Ithaca, where plaintiff and her over or explained to her. Neither husband were confined under sen- 0. nor S., by whom the power tences of imprisonment for one was witnessed, were called. It apyear in the Onondaga Co. Peniten- peared by the evidence of plaintiff tiary, where they were taken Feb. and her letters that 0. acted for 27 and remained until Dec. 23, | her in various matters until long

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after the fire, when she became principal is bound as between himdissatisfied with him because of self and a third person acting in his inactivity in attempting to good faith. Assuming plaintiff's procure her pardon.

evidence as true, that she executed M. N. Tompkins, for.plff. this short and simple power in the S. D. Halliday, for deft.

presence of a subscribing witness Held, That the motion should and others without asking to have be denied. An oral contract to in- it read or explained, she was neglisure property for one year against gent, even though unable to read it loss by fire by a written contract for herself. to be thereafter delivered, but to Plaintiff did not ask to have the take effect immediately, is valid, question submitted to the jury as and if a loss occurs before the to whether the agent knew of the written contract is delivered the existence of this power of atinsured may recover on the oral torney, or whether the policy was contract. 24 Hun, 132; 90 N. Y., exhibited to and approved by 0. 280 ; 50 id., 402; 44 id., 538; 27 id., Defendant's'agent does not swear 216. Under the evidence and the in express terms that he had seen admissions in the answer it cannot the power of attorney before he be held as a question of law that submitted the policy to 0. for his the agent was not authorized to approval; but from the correspondenter into the oral contract de- dence and evidence it pretty clearly clared on and testified to by plain- appears that the agent knew of tiff and her husband. 50 N. Y., this power of attorney when he 402 ; 59 id., 171 ; 16 Gray, 448 ; May delivered this policy. This being on Ins., $ 128. For the purpose of so, the policy delivered was substithis motion it must be assumed tuted for the oral contract and that the agent had authority to became the contract of insurance bind defendant by an oral contract. between the parties. That plainThe policy differed from the oral | tiff did not comply with the concontract and was not a perform- ditions of the policy is undisputed. ance of it unless accepted as a per- She did not furnish the proofs of formance by plaintiff or her agent. loss, nor did she sue within six Of course if the power of attorney months after the loss, and the was a fraud it was not binding on building was unoccupied at the plaintiff, and a person acting un- time of the fire. der it could not bind her unless It is unnecessary to consider she was negligent in executing and whether the policy was legally putting it within the power of 0. cancelled on June 2, 1882, or at any to deceive others. When a prin- subsequent time before the fire, as cipal, intending to create a special plaintiff would not be entitled to agent with power to do a single recover though it had act, negligently executes and puts remained uncancelled. forth a general power of attorney,

Motion denied and judgment under which the agent acts, the ordered for defendant, with costs.

Vol. 21—No. 1a.


Opinion by Follett, J. ; Hardin, terposed and obtained a judgment P.J., and Boardman, J., concur. of foreclosure by default. L. ap

pealed therefrom to the General APPEAL.

Term, where the judgment was

affirmed, and from the affirmance N. Y. COURT OF APPEALS.

there to this court. No appeal Stoughton, respt., v. Lewis, was taken from the order striking impld., applt.

out and setting aside the demurrer. Decided Feb. 10, 1885.

Augustus Haviland, for motion.

Franklin Bien, opposed. Where a demurrer was stricken out as frivolous and served in violation of a stipula

Held, That the order overruling tion, and judgment was obtained by de

the demurrer remains in force and fault, Held, that an appeal from the cannot be assailed on this appeal ; judgment alone brought up nothing for

the appeal from the judgment review. The respondent is not precluded from mov

therefore brings up nothing for ing to dismiss by the fact that he placed review. the case on the calendar and noticed it It was claimed that plaintiff was for argument.

precluded from making this moThis was a motion to dismiss an tion because he noticed the case appeal in the above entitled action. for argument and placed it upon It appeared that the action was the calendar. brought to foreclose a mortgage. Held, Untenable ; that he The complaint contained all the waived nothing by so doing. It requisite allegations and was was still optional with him to wait served upon the defendant L. He until the case was reached on the thereafter obtained a stipulation calendar, or to make this motion from the plaintiff's attorney for on the ground that an appeal to further time to answer, agreeing this court from such a judgment at the same time that he would was not authorized. not put in an answer, and would Motion granted. not ask for or apply to the court Opinion by Earl, J. All concur. for any further extension of time. On the last day given by the stip

LIMITATIONS. ulation L.'s attorney served a de

N. Y. COURT OF APPEALS. murrer, which alleged that the complaint did not state facts suffi- De Freest, respt., v. Warner et cient to constitute a cause of action. al., admrs. applts. Thereafter plaintiff's attorney Decided Feb. 10, 1885. moved at Special Term to overrule

One W., who was indebted to plaintiff, and strike out the demurrer on the

conveyed certaid real estate to his sons by ground that it was frivolous and

deed which charged the land with and served in violation of the stipula- the grantees assumed to pay said indebttion. This motion was granted

edness with interest. Held, That the acand plaintiff proceeded as if no

knowledgment of the indebtedness, al

though made to strangers to it, was just demurrer or answer had been in

as effectual to defeat the statute of limit

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