defendants explained to him how the article was to be used, which was to sell the chewing-gum to children, who should be entitled to the article contained in the compartment having the corresponding number to that upon the piece of chewing-gum purchased. defendants that they manufactured and arranged the box with the numbers, which they sold. Conviction affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. APPEAL. GENERAL TERM. THIRD DEPT. John Staats, respt., v. Thomas Garrett, applt. Decided Nov., 1884. It was claimed by defendants' counsel that the only evidence of N. Y. SUPREME COURT. the crime was this confession of defendants, and that they could not be convicted upon it without corroboration. § 395, Code of Crim. Pro. It was also claimed by defendants that there was no evidence of the commission of the crime, because the witness for the prosecution had purchased the box for the purpose of evidence, and no person had ever paid or agreed to pay anything for a chance. Wm. F. Howe, for applts. Held, That the confession of defendants was sufficiently corroborated to warrant their conviction by the proof of the purchase and the production of the article so purchased. That it is not necessary, under $325 of the Penal Code, to show, when a person is indicted for contriving a lottery, that any person paid or agreed to pay anything for any chance for which the lottery provides. That if defendants had been indicted alone for contriving, it might be doubtful whether a conviction could be sustained on the indictment, but they were also indicted for assisting in contriving a lottery, and proof of that fact was furnished by the admission of The respondent served a notice of entry of judgment to limit an appeal in this action. More than sixty days afterwards appellant served by mail notice of appeal to the General Term. After this respondent gave appellant a written extension of time to serve a case, and the latter went on and got ready for argument. Upon a motion to dismiss the appeal because not taken in time, Held, that the court would regard the extension of time to serve a case as a waiver of the notice of entry of judgment. Motion to dismiss an appeal to this court on the ground that the notice of appeal was not served in time. Code, § 1351. The attorneys live in different places. J. H. Clute, for the motion. N. C. Moak, opposed. FISH, J. A notice of entry of judgment was served by mail more than sixty days before the notice of appeal was served. Appellant claims that the notice of entry of judgment was defective and was not regularly served. Also that, even if the notice of entry was sufficient, after that plaintiff gave defendant a written extension of time to serve a case and exceptions, under which he went on and got Motion denied. der, and likely to explode by concussion. It was shown that it was M.'s duty to examine a hole which had missed fire and clean out the explosives. M. alone charged the holes. When rendrock and pow der were both used in one hole the rendrock was placed at the bottom and the concussion caused by the explosion of the powder was relied on to explode the rendrock. Sometimes this did not occur. And the evidence showed that this accident probably happened in that way; M. being led by the explosion of the powder to think that the rendrock had also exploded, which was Learned, P.J., and Landon, J., not the fact. On the day of the concur. MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. accident nine holes were exploded at once, and after a time M. ordered the miners to return to the pit. He ordered plaintiff to drill deeper a hole which had "blown out; after a few blows struck by plaintiff there was an explosion by Frederick Turner, applt., v. The which he was injured. Chateaugay Ore Co., respt. M. was foreman of a pit in defendant's Plaintiff was non-suited. Held, That the ruling was proper. Plaintiff was a skilled miner, familiar with such explosives, and knew that such accidents as this, where the charge fails to act, might occur. M. was also a servant of defendant, and no attempt was made to show that he was not a a skilled workman. Held, that plaintiff competent foreman, nor that the could not recover; the business was a dangerous one, and plaintiff took the risks of the employment; the negligence, if any, of M. was that of a co-servant. The action was for negligence. In addition to the facts stated above it appeared that rendrock was an explosive more powerful than pow tools or materials furnished by defendant were defective; nor that any duty was omitted which defendant owed plaintiff as an employee in this business. Hence there can be no recovery. 49 N. Y., 521; 133 Mass., 501; 81 N. Y., 516; 84 id., 77; 70 id., 171; 88 id., at her own station, G. Discover266; 29 Hun. 556. TERM. THIRD DEPT. Rhoda Lawrence, respt., v. The Delaware & Hudson Canal Co., applt. Decided Jan., 1885. Plaintiff, an aged lady, left the train at the wrong station, the station-master stopped the train, and the conductor called out to her to come on. She did so, and fell into a cattle guard, which was on the other side of the station from the highway, and was injured. Held, That under these circum. stances the referee was justified in finding for plaintiff. Appeal from judgment in favor of plaintiff, entered on report of a referee. Action to recover for injuries caused, as alleged, by defendant's negligence. Defendant's trains ran north and south, the highway at the station at M. ran east and west. This highway was the only road leading to the station. Forty-three feet north of the highway was the south end of the station building. This building was twenty-eight feet long. Directly opposite its northern end was an open culvert, six feet wide, which served to conduct a small stream under the track, and also acted as a cattle guard. Plaintiff, at 8.40 p.m. in October, got off a train at M. by mistake, thinking she had arrived ing her mistake, the station-master said he would stop the train, then in motion, and let her go with it to G. The train stopped a little north of the culvert and about twenty feet north of where plaintiff got off. The conductor called out to her, "Come this way, lady." Plaintiff, who was fifty-eight years old, hurried on, fell into the culvert, and was seriously injured. There was an oil lamp in the window of the station building which threw light on the culvert-it was distant from the culvert some fifteen feet. The referee found that defendant was guilty of negligence in maintaining the culvert in the position stated. He also found that, while plaintiff could have seen the culvert had she been looking at the roadway, yet, under the circumstances, she was not guilty of negligence. E. Young, for applt. J. F. Crawford, for respt. Held, That the questions in the case were for a jury or referee, and that the evidence of plaintiff's negligence was not indisputable. As to the culvert, defendant is authorized by Ch. 282, Laws of 1854, to maintain cattle guards at all road crossings. This culvert, which is called a cattle-guard, was, as appears, seventy-two feet north of the RR. crossing. There was nothing to prevent defendant from placing the guard at the crossing. It chose to put it just opposite the north end of the station. It was, we think, a proper question for the referee whether the placing of this open culvert, six feet in the clear, near a station, and where it was not necessary to place it, was or was not negligence. 40 N. Y., 146. We also think the circumstances show that plaintiff might have inferred that she was to go to the train. Her ticket had been taken up. She got out, then the stationmaster informed her that she had made a mistake, and that he would stop the train. When the train stopped it was north of the culvert, placing the culvert between the train and plaintiff. We think the conductor was mistaken in his testimony that when he said, "Come this way, lady," the center of the rear car, on the rear platform of which he stood, was over the culvert. The train was in motion, and if stopped when it had gone only thirty-three feet, the rear platform of the rear car would | have been north of the culvert. Plaintiff fell through the culvert, and had not reached that platform. And it is absurd to suppose that she would continue to walk beyond that platform after she had reached it. The train did not back down towards plaintiff, and she had not been told that it would back down. The distance north which plaintiff went was only twenty feet, and the rear platform was not many feet away when she fell. We think she might have considered it her duty and that she was invited to go on to the point where the train stood. As to plaintiff's negligence, there were lights in the cars and in the station. These lighted up the place of the accident. But plain tiff's attention was fixed, and properly, upon the cars. They were waiting for her. waiting for her. It was her duty, as she evidently thought, to go to them. She had a right to suppose that access to them was safe. She had no reason to suppose that a culvert six feet wide (or eleven feet at the top) was in the way. could she suppose that so dangerous a place would be constructed opposite a station. The question of her negligence was for the referee, and we cannot say his decision was improper. Nor Judgment affirmed, with costs. Opinion by Learned, P. J.; Landon J., concurs; Fish, J., dissents. CREDITOR'S ACTION. TRUSTS. N. Y. COURT OF APPEALS. Niver, respt., v. Crane et al., applts. Decided Jan. 20, 1885. A creditor's action, whether instituted under the provision of the Rev. Stats. or the Code Civ. Pro., can reach only property belonging to or things in action due to the judgment debtor or held in trust for him. To make out a trust under 1 R. S., 728, § 52 the money must be paid at or before the execution of the conveyance. In an action to reach land held by a judg ment debtor's wife on the ground that it had been bought and paid for by him and that the transfer to her was made for the purpose of defrauding creditors, it appeared that the wife paid for it by transferring certain property of her own, assuming a mortgage thereon and giving her note for the balance. Held, that the debtor had neither title to nor any legal interest in such property. This action was brought by plaintiff, a judgment creditor of the defendant M. C., against him and his wife, seeking to charge certain lands with the judgment debt, on the ground that they were bought and paid for by the judgment debtor and are held in the name of his wife in order to defraud his creditors. It appeared that the property which is alone in question was paid for by the wife of the judgment debtor and no part of it by her husband, she conveying to the grantor certain property of which she had the legal title and assuming and agreeing to pay $4,500 of existing mortgages and giving her own note for $400. It also appeared that the property she conveyed to said grantor she had purchased under the following circumstances; she first took a contract in writing under which she agreed to pay the purchase money and by which the then owners agreed to convey the property to her. Her husband was not named. Upon the execution of that contract she paid $1,000, made up from $183.00 which she then had of her own, and $817.00 which she borrowed from her father-in-law on her own note. When the deed was given she assumed payment of the existing mortgage and executed another on the premises for the unpaid purchase money. M. M. Waters, for applts. A. P. Smith, for respt. Held, That plaintiff was not entitled to the relief sought. 15 N. Y., 475; 32 id., 53; 48 id., 218. A judgment creditor's action, whether instituted under the provision of the Revised Statutes (2 R. S., Tit. 2, pt 3, Ch. 1, Art. 2), or the Code Civil Procedure (Tit. 4, Art. 1, Chap. 15), can reach only property belonging to or things in action due to the judgment debtor or held in trust for him. Also held, That as between the judgment creditor and the judgment debtor it was immaterial whether the latter paid the consideration for property conveyed at his instance to his wife. He had neither title to nor any legal or equitable interest in such property. 1 R. S., 728, $51. To make out a trust under the provision of the Revised Statutes, 1 R. S., 728, §52, that where the consideration of a grant for a valuable consideration to one person is paid for by another such conveyance shall be deemed fraudulent as against the creditors at the time of the person paying the consideration, and if a fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands, the money must be paid at or before the execution of the conveyance. 6 Cow., 105; 2 Johns. Ch., 405; 5 id., 1; 6 Johns., 197; 3 Paige, 391; 10 id., 249. The foundation of a trust of this nature is the payment of the money by the cestui que trust. Wood v. Robinson, 25 N. Y., 564; McCartney v. Bostwick, 32 id., 53; Baker v. Bliss, 39 id., 70; Ocean Nat. Bank v. Olcott, 46 id., 12, distinguished. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. |