As to practice in different classes of cases, see those titles, as COMMON CARRIERS, 3; CONTEMPT, 3; CONVERSION, 4, 9; MALICIOUS PROSECUTION, 4, 5, 9; NEGOTIABLE PAPER, 9; SLANDER, 2; SUPPLEMENTARY PROCEEDINGS, 4.
See also, APPEAL, 1, 5, 6, 9, 13; ARREST, 3, 6; ATTORNEYS, 6; BANKS, 5; BILL OF PARTICULARS; CHILDREN, 2, 3; COSTS, 4; EVIDENCE, 7; EXECUTION, 1; FRAUD, 6, 7; HIGHWAYS, 2; HUSBAND AND WIFE, 1, 2; INDEMNITY, 3; NEGLIGENCE, 2, 5, 9, 11, 14– 17, 24-26; PARTIES, 2; PLEADING, 2, 3, 10, 11, 13, 14; RAILROADS, 17, 22-24; REFERENCE, 1, 2.
PRINCIPAL AND SURETY. See SURETYSHIP.
PRIVILEGED COMMUNICATIONS. See EVIDENCE, 12; SLANDER, 2-4.
PROHIBITION. See SURROGATES, 6.
1. A promise not to disclose another's intended bid at an auction confided to the promisor does not create an obligation that the law will enforce, and no action lies for alleged damages due to a violation of such confidence.-Jones v. McCaddin, 53.
See CONTRACT, 16, 17; FRAUD, 8; SPECIFIC PERFORMANCE, 1, 2.
PROMISSORY NOTES.
See NEGOTIABLE PAPER, 1-5, 7-9, 11; PRACTICE, 27.
1. What publication should be given to the appointments of the terms of court is
fixed by the legislature, and this court cannot enlarge the terms of the statute. -The People ex rel. Cole v. Hill, 529. See SERVICE.
1. Where a railroad corporation relies upon a release from damages resulting from the negligence of its employees contained in a pass the conditions of the pass must be established affirmatively.-McElwain v. The Erie R. Co., 21.
2. An agent of a railroad company, when testifying in its behalf, is within the rule requiring the credibility of interested witnesses to be submitted to the jury.— Id.
3. A railroad pass contained this provision: "The acceptance of this pass is to be considered a waiver of all claims against the Erie Railway Company for personal damages and injuries received when on the above train. " Held, Not to release the company from the results of its employees' negligence.— Id.
4. A certified copy of the articles of association of a railroad company, showing that some of the requisite twenty-five names were subscribed by persons other than those bearing the names so signed, Held, to be prima facie evidence that the names subscribed were genuine, and that the signatures were authorized.-In re petition N. Y., L. & W. RR Co. v. The Union Steamboat Co., 29.
5. It is sufficient in that respect if the articles of association state the length of the road approximately.—Id.
6. 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.Fleckenstein v. The Dry Ďock, E. B. & B. RR. Co., 128.
7. 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.— Id.
8. What is to be deemed such an obstruction is a question dependent on the particular circumstances of each case as it arises.-Id.
9. Where action is brought to recover damages from a fire caused by sparks from defendant's locomotive, it is sufficient to make a prima facie case of negligence to
show that at the time of the accident the
engine emitted a large and unusual quan-
tity of sparks.—Ruppel v. The Manhattan
R. Co., 149.
10. Certain railroads having refused to allow
petitioner to cross their tracks, commis-
sioners were appointed who decided in
favor of the petitioner and awarded $1
damages. No evidence was offered as to
any pecuniary injury, or as to the pecu-
niary value of the right to cross. Held,
That it could not, under the circum-
stances, be said as matter of law that the
damages awarded were inadequate, and
that the order imposing the costs of liti-
gation on the opposing roads was discre-
tionary and could not be reviewed.---In
re application of the C. & H. Horse RR.
Co., 165.
11. Plaintiff's intestate took passage at a
way station on a train composed of excur-
sion cars, and not finding any seat stood
on the platform, no objection being made
to his doing so. While the train was
going around a curve at a high rate of
speed he was thrown off into the air and
killed. There was no proof whether or
not he was holding on to anything at the
time. Held, That the jury was warrant-
ed in finding defendant guilty of negli-
gence, and that nothing was proved from
which as a question of law the court
could attribute contributory negligence
to deceased.-Werle v. The L. I. RR.
Co., 221.
12. The sale of seats by a company for a cer-
tain train binds it to furnish a safe and
secure place for its passengers to ride and
comfortable accommodations for their
convenience.-Id.
13. When defendant's train stopped at
plaintiff's destination the platform of the
car plaintiff was in stopped in the middle
of a street. There was nothing to direct
passengers to alight from one side rather
than from the other; but there was a
branch track running along one side.
Plaintiff alighted on the latter side. and
was injured by a train running on the
side track. Held, That a verdict in plain-
tiff's favor for his injuries should be sus-
tained.-Van Ostran v. The N. Y. C. &
H. R. RR. Co., 302.
14. Plaintiff's testator owned a tract of land
upon which was a boarding house and
a mineral spring. Defendant wished to
secure a right of way through the prem-
ises. The testator entered into a written
agreement with defendant as to the mat-
ter and a map was made upon which the
locations of the said road, proposed
bridges and structures were shown.
this agreement defendant covenanted
to build certain bridges and crossings and
to erect a station at which regular trains
should stop. Having built its road it
refused to perform its covenants.
agreement did not specify the size, mate-
rial or manner in which the crossings,
etc., were to be built. Held, That the agree-
ment was sufficiently definite and that
specific performance should be awarded,
and that plaintiff was entitled to an in-
junction requiring all regular trains to
stop at said station.-Lawrence v. The
Saratoga Lake RR. Co., 314.
15. By an omission to build and maintain
fences on the sides of its road a railroad
company does not become liable for in-
juries which cattle or horses may do to
themselves by straying on the track.-
Knight v. The N. Y., L. E. & W. RR.
Co., 361.
16. Plaintiff having refused to pay for ex-
tra baggage, defendant's agent refused
to deliver the checks or the baggage,
which was in plain sight and could have
been returned. Defendant's president
authorized plaintiff to receive the bag-
gage at P. without checks, and promised
it should be stopped there. It, however,
went on to C. and was burned there in
the depot. Held, That defendant was lia-
ble for conversion of the baggage.-
McCormick v. The Pennsylvania Central
RR. Co., 379.
17. In an action to recover for the loss of
plaintiff's goods by fire, it appeared that
the car in which they were was drawn
alongside the depot to be unloaded just
before the fire; that the depot roof was
old, dry, and covered with moss, and ex-
tended down to the car; that a passing
engine emitted sparks which lit on the
roof, which took fire and the car and
contents were burned. Held, That it
was a question for the jury whether de-
fendant was negligent in keeping the roof
in such condition and the use of engines
near it, and in placing plaintiff's
goods in such proximity to the depot as
to be likely to be consumed, and that a
refusal to nonsuit was correct.-Tanner
v. The N. Y. C. & H. R. RR. Co., 396.
18. The signing of the articles of association
of a railroad company by agent is good
unless such signature was made without
authority, and that fact must be proved
by the party atta king its validity.-In
re petition of The N. Y., L. & W. RR.
Co. v. The Union Steamboat Co, 437.
19. A passenger has the right to assume that
the company will provide a safe way to
board its train, and that the way taken
by other passengers without objection by
the company is the right one.-Brooks v.
The N. Y., L. E. & W. RR. Co., 464.
20. It is not necessarily, as matter of law,
too late for a passenger to board a train
after it has begun to move from the sta-
tion.-Id.
21. Failure of defendant's servants in
charge of the station to warn a passenger
of danger from an approaching train, un-
der the circumstances, Held, negligence.
-Id.
22. Plaintiff's intestate was ejected from
defendant's train for not paying his fare.
He was subsequently found dead in a pool
of water by the side of the railroad, hav-
ing died of suffocation or drowning.
Held, That if deceased was so stunned by
violence in putting him off, or was so in-
toxicated, to the knowledge of defendant's
employees when he was put off, as to be
unable to take care of himself, defendant
was liable for causing his death-Gill et
al v. The Roch. & P. RR. Co., 523.
23. Also held, That there was no evidence to
support the charge to the jury that they
might, as an item of damages, consider
and determine the benefit that would be
likely to result to the parents of deceased
from the counsel and advice that they
might have received from their son all
during life -Id.
24. Where the court in charging the jury
stated, that it seemed from the evidence
that the deceased alighted from the train
upon which he was a passenger before it
had stopped at the station for the dis-
charge of passengers, and while proceed-
ing to cross the intervening track was
struck by a passing freight train; and the
jury were left to determine the question
of the deceased's negligence upon the
theory that he attempted to cross the
track before the train had stopped, Held,
Error to refuse to charge, in substance
and effect, that in such case the company
owed no duty to him as a passenger, and
he was bound to exercise the same degree
of care and vigilance required of persons
crossing a railroad track upon a highway.
-Parsons v. The N. Y. C. & H.R.RR. Co.,
525.
See BONDS; COMMON CARRIERS; EMINENT DO-
MAIN; NEGLIGENCE, 1, 10, 14, 23, 24.
REAL ESTATE.
See CONTRACT, 3, 4, 19.
1. The power of this court to remove its re-
ceiver of a corporation and appoint an-
other in his place does not depend on any
notice to stockholders who have appeared
-Hoyt v. The Continental Ins Co., 145.
2. The court can act on its own motion ex
parte.-Id.
3. An order for the appointment of a recei-
ver pendente lite of a defendant corpora-
tion in an action to foreclose a mort-
gage given by such corporation may be
made in any county where the action is
to be tried, notwithstanding Chap. 378,
Laws of 1883.-The U. S. Trust Co. v. The
N. Y., W. S. & B. RR. Co., 191.
4. The statute of 1883 relates only to statu
tory receivers to wind up a corporation.
-Id.
5 As between the State and Federal Courts,
the court which first acquires jurisdiction
of the subject matter of an action to fore-
close a mortgage, and which is first put
in motion, will retain its control to the
end of the controversy, and the possession
by its receiver will not be disturbed by
the subsequent appointment of a receiver
by the other court, except under very ex-
traordinary circumstances.-The Farmers'
L. & T. Co. et al. v. The Southern Tel.
Co., 457.
6. When an action to foreclose a mortgage
upon the property of a telegraph com-
pany commenced by the trustee of the
bondholders in the courts of this state, is
about to be discontinued by the plaintiff
for the reason that another action for the
same purpose has been previously com-
menced in the courts of the United States
in which a receiver of the defendant's
property has been appointed, a bond-
holder of the defendant will not be made
a party plaintiff, upon his application, in
order that he may continue the action.—
Id.
7. Under § 449 Code of Civ. Pro., an action
to collect a debt owing to a New Jersey
corporation which has been dissolved and
a receiver of its property appointed un-
der the laws of N. J. cannot be prosecuted
in this State by the receiver in the name
of the corporation, although by the laws
of N. J. the receiver is empowered to
prosecute an action in that form -The
Merchants' L. & T. Co. v. Clair, 517.
See ATTORNEYS, 4, 5; BANKS, 5; CORPORA-
TIONS, 19; REPLEVIN, 1.
See ASSIGNMENT FOR CREDITORS, 3, 4; MAN-
DAMUS, 3; MORTGAGE, 16.
1. When upon the trial. of an action before
a referee a report made by him in the
trial of a previous action between the
same parties is admitted in evidence with-
out objection, the referee, in deciding the
case, cannot disregard such report as evi-
dence on account of the fact that subse-
quent to the submission of the case to
him, but previous to his decision of it, the
judgment entered upon such report has
been reversed upon appeal, because there
is no evidence of such reversal before him.-Hall et al. v. The U. S. Reflector Co., 37.
2. The production upon the argument of an appeal of the judgment roll showing the reversal of the judgment entered upon such report will not correct the error of the referee in disregarding such report without evidence of said reversal.-ld.
3. A tender of his report by a referee within the time limited is not a delivery within § 1019, Code Civ. Pro.-Little v. Lynch, 840.
4. To entitle himself to his fees and keep his report valid in case of an omission of the successful party to take it up the referee must file the same.-Id.
See ATTORNEYS, 3; DIVORCE, 3, 4.
1. The trustees of St. George's M. E. Church, a corporation organized pursuant to Chap. 60, Laws of 1813, procured an order on petition authorizing them to sell the church property. Before the
deed was delivered certain members of the congregation, after serving notice of objection and protest to the trustees on the grounds that no legal order was made; that the consent of the majority of the corporation and congregation had not been obtained and the question of sale had not been submitted to those bodies, obtained an order to show cause why the sale should not be vacated and the trustees restrained until the questions were submitted to the corporation and congregation. On an appeal from the order refusing to vacate and stay, Held, That the trustees held the property in the same sense as directors of civil corporations; that the method adopted was in accordance with the rules of the church; that the meeting and vote insisted upon were not essential.-In re St. George's M. E. Church, 81.
1 A receiver appointed in supplementary proceedings cannot maintain an action to recover the possession of personal property transferred by the judgment debtor before his appointment, by way of mortgage, where the mortgagee has taken possession by virtue of his mortgage.-Pettibone v. Drakeford, 96.
2. Where a sheriff attached goods under process against one T. and plaintiff claims title through the same person it is entirely irrelevant who owns the goods if T. does not. Siedenbach v. Riley, 394.
3. A denial of plaintiff's title is not alone a good defense.-Id.
4. If the bill of sale to plaintiff was bona fide and was followed by possession, plaintiff is entitled to recover.-Id.
5. A failure to give possession only raises a presumption of fraud, which may be rebutted by proof that the transaction was fair.-Id.
6. There is no need of a demand if the complaint averred an unlawful detention. -Id.
See COMMON CARRIERS, 3.
1. A vendee in good faith, trusting to his vendor's statement that he owes no debts, is not bound, in favor of the vendor's creditors, to make further inquiries and investigate the vendor's condition.-Manning et al. v. Ennis et al., 27.
2. Mere inadequacy of price is not enough to set aside a sale as a fraud on creditors. -Id.
3. Possession by the vendor after sale of personal property does not render the sale void as against creditors if the transfer was made in good faith.-Id.
4. In an action to recover on an executed contract for the sale of personal property the statute of frauds is not the standard by which the admissibility of evidence as to the price for which the goods were to be sold is to be determined, and therefore an unsigned memorandum as to the price endorsed on the printed conditions of sale is admissible.-Porter et al. v. Smith et al., 210.
5. Where the holder of a sold note, being the vendee therein named, makes a delivery order in favor of a third person, which is accepted by the vendor, such third person is entitled to the property referred to in said sold note as therein provided. upon the fulfillment of the conditions of the original contract by the parties thereto. Consequently, if payment was to be made in the vendee's notes, which are duly given and accepted in payment. the holder of such an order is entitled to the property or its value, though the vendee becomes insolvent before the maturi
This holds good as to
property to be manufactured.-Anderson
v. Reed et al., 271.
6. Plaintiff delivered to one B. a soda water
apparatus and took back an instrument
stating that B. leased said apparatus for
which he agreed to give his notes for a
specified sum, and that on full payment
of said notes all claim of plaintiff to said
property should cease, but upon any
breach of the provisions of the lease or
upon failure to pay either of said notes,
B.'s right of possession should terminate
and plaintiff might resume possession
without hindrance from the lessee.
an action brought after default in pay-
ment of the notes to recover possession of
the apparatus from a bona fide purchaser
of the same from B. without notice of
the above instrument, Held, That he was
entitled to recover.-Puffer v. Reeve,
352.
7. By accepting and retaining goods sent to
him by plaintiff accompanied by a bill
for the same stating that the goods were
bought by defendant of plaintiffs and giv-
ing the terms of credit, Held, That de-
fendant ratified the terms of such bill of
sale, although he had paid plaintiff's
traveling salesman for the goods at the
time of giving the order, such salesman
not being authorized to receive payment
for plaintiffs-Brigham et al. v. Fish,
531.
See CONTRACT, 1, 2, 6, 7; EVIDENCE, 16;
LUNATICS; NEGOTIABLE PAPER, 12.
SANITARY LAWS
See INJUNCTION, 2.
1. Chap. 248, Laws of 1884, continuing the
colored schools then existing in the City
of N. Y., does not prohibit the proper offi-
cers from changing the location of one of
such schools if such change is for the
benefit of the school; but it does prohibit
any change which would affect the capa-
city of the school to receive its pupils, or
would degrade the school or destroy its
usefulness.-Reason v. The Board of
Education, 151.
2. D. was hired by H., trustee of a school
district, as a teacher. H. gave D. orders
for his salary upon the tax collector,
which the latter refused to pay. Defend-
ant succeeded H. in the office. Plaintiffs,
assignees of D., recovered against defend-
ant the amount of the orders. The judge
certified that it appeared upon the trial
that defendant acted in good faith. Held,
That plaintiffs were entitled to costs; that
§ 3244. Code Civ. Pro., did not apply, as
defendant had not done or omitted any-
thing as to which an appeal lay to the
State Superintendent of Public Instruc-
tion.-Durfee et al. v. McCall, 337.
1. A cause of action by a parent for the
seduction of his child is made out by
proof that the girl was debauched with-
out his consent, which resulted in a loss to
him of her services, whether defendant
accomplished his purpose by promises,
artifice, flattery or violence.-Laurence
v. Spence, 539.
1. The court at Special Term has no right
to grant an order for service of summons
by publication under § 440, Code.-Crosby
v. Thedford, 544.
2. An affidavit of plaintiff's attorney stat-
ing that he had caused inquiry to be made
as to the residence of defendants and
that certain defendants were non-resi-
dents and resided in Ireland, accompa-
nied by an affidavit stating that deponent
received copies of the summons to serve;
that he had served some of defendants
but cannot after due diligence serve
defendants named, is sufficient proof of
due diligence to sustain an order for ser-
vice by publication.-Wunnenberg v.
Gearty et al., 549.
3. Affidavits showing that the defendants
to be served are residents of other States
and that they are at the time at their re-
spective places of residence are sufficient
to show that such defendants cannot af-
ter due diligence be found within the
State and to support an order for service
by publication.-Chase v. Lawson, 571.
See CORPORATIONS, 3-5.
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