below. The horse became unmanageable and ran away, and the driver attempted to guide him and drive him against a post of the elevated railroad so as to stop him; failing to do this, he turned him and attempted to run the horse against the curbstone to make it heavy for him and so arrest his progress. The wagon passed over the curbstone, the driver was thrown out and the plaintiff run over and injured. Defendant claimed that the cause of the injury was too remote to authorize a recovery of any damages, and that the court erred in refusing to dismiss the complaint, and in charging the jury that if they believed that the coals and ashes fell through any negligence of defendant, its servants or agents, and caused the horse to become unmanageable and run against the plaintiff, inflicting injuries upon him, that defendant was liable; it was also claimed that the court erred in refusing to charge that "if the jury believed the injury occurred through the negligence of the driver's error of judgment in endeavoring to obtain control of his horse, plaintiff cannot recover." Hugh L. Cole, for applt. Osborn E. Bright, for respt. Held, That no error was committed by the judge in his rulings; that the injury inflicted upon plaintiff was chargeable to the original wrongful act of defendant, and it is liable therefor: that the driver of the horse having exercised his best judgment in endeavoring to prevent injury in view of the exigency of the occasion his action,

whether prudent or otherwise, may be considered a continuation of the original act, and defendant was liable as much as it would have been if the horse had been permitted to proceed without control whatever. The damages sustained by plaintiff were not too remote, and the wrongful act of defendant having caused the horse to become frightened and run was the proximate cause of the injury, and the running away of the horse and collision with plaintiff the natural and probable consequence of defendant's negligence. 2 Black, 892; 1 Adol. & E., N. S., 29; 13 Reporter, 790; 13 Eng. C. L., 613; 19 Johns., 381; 6 N. Y., 397: 4 Den., 464; 49 N. Y., 420; 56 id., 200; 55 id., 108.

Ryan v. N. Y. C. RR. Co., 35 N. Y., 210; Penn. RR. Co., v. Kerr, 62 Penn., 653, distinguished.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Opinion by Miller, J. All concur, except Earl, J., not voting, and Rapallo, J., dissenting.

RECORD.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Eleazar A. Durkee, applt., v. The National Bank of Fort Ed

ward et al., respts.

Decided May, 1885.

Where the endorser of a note, discounted by a bank and past due, gave to it as collateral security a mortgage upon an agreement that it would not sue him upon said note until it should ascertain, after the foreclosure of another mortgage which it held

The

against the maker of the note, what sum would remain unpaid upon the note, held, that this was a valid extension of time to the endorser and constituted the bank a holder for value of his mortgage. The property in this case is an insufficient security for the payment of two mortgages, and the question is which shall be paid. The plaintiff's mortgage was delivered earliest and defendant's mortgage recorded earliest. facts as to the defendant's mortgage are that the common mortgagor, one S. R. Durkee, was endorser upon three notes made by one Wm. Allen, respectively for $3,100, $89 and $3,500. These notes were discounted by the bank and were past due. Allen gave Durkee, Aug. 19, 1881, a mortgage to secure him as endorser, and the latter assigned this to the bank a few days afterwards. The note first above mentioned was due Aug. 22, 1881, the second Oct. 19, and the third Oct. 2. Durkee delivered the mortgage to plaintiff Dec. 3, 1881, and the one to defendant Dec. 5, 1881. Defendant's cashier testified that Allen was insolvent in Dec. 1881; that witness told S. R. Durkee that he thought the Allen mortgage assigned to the bank would not bring enough to pay all the three notes; he suggested that S. R. Durkee give the bank a mortgage to secure the $3,100 note; that otherwise the bank might sue him; that if he did so the bank would wait until there was a sale under the Allen mortgage, and it then could tell what would remain for Durkee to pay: in the meantime the bank would hold his mortgage.

The

Allen mortgage had not been foreclosed and there was no sale under it until Aug., 1882. No action had been brought on the note. The sale had on the Allen mortgage showed a deficiency of $2,000. The mortgage which S. R. Durkee gave the bank recited that it was intended to secure the payment of Allen's note for $3,100, etc. "The same to be paid in manner following: $1,000 in one year; $1,000 in two years and the balance in three years;" "and if the amount of said note," etc., "shall be paid as above specified then these presents shall be void." The bank had judgment.

C. Hughes and R. Armstrong, Jr., for applt.

A. D. Wait, for respt.

Held, That although the bank took its mortgage as collateral security for a precedent debt it was still a purchaser in good faith and for value, and so entitled to the protection of the recording act, 1 R. S., 756, $1, because it extended the time of payment of the antecedent debt. The mortgage clearly provides for the payment of the note at a future day and so this case is not like Cary v. White, 52 N. Y., 139. There the mortgage only was by its terms payable in the future. In Cary v. White the mortgage was not taken in the name of the creditor; here it is. ln this mortgage we think the words "the same to be paid," etc., refer to the note and not to the mortgage. The most favorable view for plaintiff is that upon the delivery of the mortgage to the bank it had two days of payment

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

William H. Brown, respt., v. Dennis Rice, applt.

Decided April, 1885.

In an action for obstructing a private road the record book of roads of the town and entries therein indicating the laying out of the road are admissible.

In such action evidence that plaintiff has used the road for over forty years and that there is no other road from his premises to the public highway is competent; so also an award between the parties fixing the width of the road.

Appeal from judgment of County Court, affirming a judgment of Justice's Court in favor of plaintiff for $2 damages, besides costs.

Plaintiff alleged that he was entitled to the use of a road two rods wide, and that defendant prevented him from using the same by putting stones, sticks, rubbish, and digging the same to plaintiff's damage $25. Answer, denial.

On the trial before the justice plaintiff offered in evidence the record book of roads of the town,

showing the survey of the road in question as a private road and an agreement by the commissioners of highways, dated September 12, 1836, to establish the same. This was objected to, the objection overruled and the record received in evidence.

Plaintiff was then allowed to testify, under objection, that he had known and traveled this road forty-five years; that he was in possession and occupation of the land on the eastern terminus of this road, and that he had a sawmill thereon, and that there is no other road leading from the main road or public highway to the sawmill in question.

F. David, for applt.

Fred A. Marvin, for respt.

Held, That the rulings were correct. The evidence in conjunction with the record was competent upon the question of the extent of plaintiff's possession of the road in question. 5 Wend., 584.

Plaintiff offered in evidence an award made in an arbitration between the parties hereto, by which the arbitrators decided that the private road "across the land of said Rice to the sawmill of said Brown should be of the width required by statute and at least two rods wide." The offer was made "for the purpose of proving the width of the road in question." Defendant objected to the award as incompetent and "brings into question the title to real property which defendant denies." The objection was overruled and the award read for the purpose stated.

Held, No error. It was compe

tent evidence to show that plaintiff had a right of possession in the highway, and was in enjoyment of the possessory right when passing and repassing upon the road in question. It bore upon plaintiff's possession of the road in question. It may be observed incidentally that an inspection of the award would seem to indicate conclusively the right of possession in plaintiff. 8 Hun, 570.

Main v. Cooper, 25 N. Y., 180; 26 Barb., 468, distinguished.

Under all the proof given in the case, we see no force in the suggestion that because it appeared that defendant owned land on both sides of the road he was presumed to be owner of the road; whatever force there may have been in such a presumption under the circumstances ordinarily attending a possession on either side of the road, it was clearly overcome by the proof before the justice to which we have already referred.

It is claimed by defendant that there was no evidence to show that there was anything to obstruct travel on the track except a short pole, which plaintiff had run into the wheel of his wagon, or that defendant had done anything to obstruct travel except the casual laying down of this pole, and that the justice erred in allowing plaintiff to give evidence in relation to the damages sustained by him when he allowed a question as to how much it would be worth "to remove these stone out of his road so as to make a road two rods wide."

Held, In considering this objec

tion we may take into account the fact that the witness answered $15 to $25, and also the fact that the justice only rendered judgment for $2 damages. It therefore inferentially appears he did not follow the opinion of the witness in respect to what it would be worth to remove the stone from the road. If there was technically any error in receiving the opinion of the witness it was not prejudicial to defendant, as the damages given were very slight.

We think the $2 damages allowed by the justice did not exceed the liability which defendant incurred by his wrongful act.

Judgment affirmed, with costs. Opinion by Hardin, P.J.; Boardman and Follett, JJ., con

cur.

DURESS. LIMITATION. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Betty Schoener et al., respts., v. Marx J. Lissauer et al., applts.

Decided April, 1885.

Defendants had an employee arrested for embezzlement and demanded $2,000 of his relatives, threatening to send him to prison unless it was paid. These threats, in accordance with an understanding with defendants, was communicated to the boy's mother, and she, being overcome by them, executed a mortgage to defendants. Held, That the mortgage was void for duress.

The action to set aside the mortgage was not brought until more than six years after it was given. Held, That the facts were such that the mortgagor might have brought the action at once, and that it was barred by the statute.

Appeal from judgment in favor

Action to set aside a bond and mortgage for $1,000, executed May 22, 1873, by Babet Marx, plaintiffs' mother, on the ground of duress.

On May 9, 1873, Garson Marx, Babet's son, was arrested in New York on complaint of defendants charged with embezzlement and larceny from defendants of $50, and they subsequently claimed their loss to be $4,000 or more.

In interviews with a sister and other relatives of the boy, defendant L. demanded $2,000, and stated that if it was not paid the boy must go to state prison, and entered into an understanding that his statements should be repeated to the boy's mother, and she, moved by the threats, executed the bond and mortgage, certificate and affidavit. Defendants took these and $1,000 in cash, and the boy was allowed to go on his own recognizance by the Oyer and Terminer.

Julius Lipman, for applts. Louis Marshall, for respts. Held, That the case was within the authorities condemning the mortgage for undue influence, duress per minas and fraud. 26 N. Y., 9; 30 Hun, 239; 83 N. Y., 251. Babet Marx was the mother of Garson, who was charged with crime, and she was nervous and feeble in health, mind and purpose, and was overcome by the threats, declarations and acts of defendants communicated to her by an understanding entered into in that regard with L., one of the defendants, and she yielded her will and executed the papers while in terror

Vol. 21-No. 21.

warranted the finding by the trial judge of the invalidity of the papers. 131 Mass., 51.

Smith v. Rowley, 66 Barb., 502, distinguished.

Moritz Marx testified to his interview with L. and to his threats, and in answer to a question whether L. or his attorney told him to repeat them to Babet, he answered: "that was the understanding." He was then asked if he did tell Babet Marx what took place in New York. Defendants' counsel objected, on the ground that "He does not seem to have been delegated or authorized to repeat." This was overruled and witness allowed to answer that he told her what they said.

Held, No error; that the ground of objection was not sound, and that no other objection can be taken now. 70 N. Y., 34; 81 id., 245.

This action was not brought until September, 1879, after the death of Babet. The answer set up the statute of limitations, saying that defendants are "not guilty of the supposed grievances alleged in the complaint at any time within six years before the commencement of this action."

Held, That the statute of limitations is a defense to this action. In Meyer v. Griswold, 3 Sandf., 464, it was held that it was the duty of plaintiff, where his complaint shows the fraud was committed more than six years prior to suit, to aver, in anticipation of a defense, that it was not discovered until within six years. Plaintiffs have not made any such aver