ing that on the return of the citation the claim was opposed by C., "a legatee named in the will," appointed a referee to take proof and report. The testimony showed that W. and G. were sisters, and that W. boarded with G. during the period stated. W.'s book contained an entry in her own handwriting of November 11, 1875, of a payment to G. of $46 for board, the last preceding payment for the same purpose appearing upon the book being under date of May 22, 1868. There was no proof of any payment in the meantime. The Surrogate found that a contract relation existed between G. and W. in respect to her board, and decided that G. should be allowed to retain out of the assets of the estate for six years' board next prior to the death of W. at $3 per week, less payments credited within that time, leaving a balance of $820 due G. He also held that the claim from April 1, 1864, to February 4, 1873, was barred by the statute of limitations and should be disallowed. This proceeding was instituted before the Code of Civ. Proc. went into effect, and under the practice then in force the contestant was not required to present a written answer or a formal objection to the claim of the executrix. E. W. Packard and D. C. Hyde, for applt. F. C. Peck, for respts. Held, That plaintiff's claim was open to any answer or defense, and if upon her proof it seemed legal and valid it was still subject to be defeated if at the death of the testatrix the time limited by statute for enforcing a civil remedy had expired. 3 Wend., 503; 6 Paige, 166; 8 N. Y., 362. The judgment rendered by the Surrogate necessarily assumes that as the payment of November 11, 1875, was in part only, and not in full, it was sufficient to operate as an admission and renewal of liability, as by a new promise, for whatever might be found to be actually due for a time against which the statute had not then runthat is for board received by G. for six years up to the payment. This amount having been established by extrinsic evidence the court erred in limiting the recovery to six years anterior to the death of W. Judgment of General Term, affirming decree of Surrogate, reversed and decree modified and, as modified, affirmed. Opinion by Danforth, J. All concur. MUNICIPAL CORPORATIONS. N. Y. COURT OF APPEALS. Saulsbury, applt., v. The Village of Ithaca, respt. Decided Nov. 20, 1883. Plaintiff was injured by falling upon a defective sidewalk in one of defendant's streets. It did not appear that it had been built by defendant, but defendant had had notice for a long time of its condition. Held, That defendant was liable; that the sidewalk having been laid, it became responsible for its condition and bound to keep it in order as long as it existed and this duty was ministerial and not judicial. Reversing S. C., 12 W. Dig., 117. ing judgment for plaintiff, reversed and judgment affirmed. Opinion by Danforth, J. All concur, except Rapallo and Finch, JJ., not voting. RAILROADS. NEGLIGENCE. This action was brought to recover damages for injuries received by plaintiff from falling off defendant's sidewalk into an excavation. It appeared that the accident occurred on one of defendant's streets. The sidewalk was uneven upon the surface and slanting. It extended over and so bridged an excavation three or four feet deep, at the bottom of which was a pile of sharp-cornered stones of such shape that a person falling upon them would receive serious injury. There was no railing or other guard Plaintiff, a brakeman, was injured by the upon either side of the walk. It did not appear that this sidewalk was built by defendant. It had been in this condition for about a year, and defendant had had notice of it for a long time before the day of the accident. By its charter defendant's trustees are made commissioners of its highways, and, among other things, are empowered to construct, repair, or discontinue its streets and sidewalks, "and prevent the encumbering or obstructing the same in any manner." Laws 1864, Chap. 257; Laws 1871, Chap. 140; Laws 1875, Chap. 287. F. E. Tibbetts, for applt. S. D. Halliday, for respt. Held, That defendant was liable; that the sidewalk in question having been built, it became responsible for its condition, and bound so long as it existed to keep it in order. This duty is ministerial and not judicial. 50 N. Y., 239; 51 id., 513; 92 id., 10; 45 id., 129. Urquhart v. Ogdensburg, 91 N. Y., 67, distinguished. Order of General Term, revers N. Y. COURT OF APPEALS. Disher, respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided Nov. 20, 1883. breaking of a brakewheel. He testified that there was a new brakewheel that was of a different shape, but failed to show which kind was least liable to break or that the old shape was not strong enough for its purpose. He also introduced a rim which he claimed to belong to the wheel which broke, but failed to prove that it belonged to that wheel or that it was found near the scene of the accident; he could only say it was of the same pattern. Held, That a nonsuit should have been granted; that there was a total failure to show any negligence of defendant growing out of the kind or pattern of the wheel. Reversing S. C., 12 W. Dig., 277. This action was brought to recover damages for injuries received. by plaintiff while in defendant's employ as a brakeman, by reason of a defect in a brakewheel which broke. He claimed that the brakewheel in question was of a defective and insufficient pattern to the knowledge of defendant, and that it was weakened by an old break in the spokes which defendant's inspectors carelessly failed to discover. Plaintiff's evidence showed that there was a new brakewheel that was of different shape, but he failed to show which one was least liable to break in the use to which it was devoted; he failed to prove that the old shape was not strong enough for its purpose and in its place, or at all defective or insufficient. James F. Gluck, for applt. John T. Murray, for respt. Held, That there was a total failure to show any negligence of de- | fendant growing out of the kind or pattern of the wheel. The proof as to the existence of a defect in the wheel when it broke was very vague. Plaintiff failed to prove that the rim introduced by him in evidence and claimed to belong to the wheel which occasioned his injury belonged to that identical wheel. It turned out that he could only say that it was of the same pattern. It was not even shown that the rim introduced was found near the scene of the accident. A motion for a nonsuit was made at the close of the evidence, which was denied. Held, Error; that the burden was upon plaintiff to show negligence on the part of defendant. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted. Opinion by Finch, J. All con of different races in separate schools and to determine the persons who may or may not attend such schools. The act authorizing the establishment of separate schools for colored people was not repealed by the civil rights act, and is not within the inhibition of the 14th amendment of the Federal Constitution. The relator applied for a writ of F. W. Catlin, for applt. Held, That the application was properly denied; that the school authorities of Brooklyn have the right to classify the pupils, putting scholars of different races in separate schools and, in the administration of their authority, to regulate the methods of education pursued therein. Laws 1864, Chap. 555, Title 10, § 1; Laws of 1850, Chap. 143, 4; Laws 1873, Chap. 863, Title 16, § 1; that this right carried with it the power of determining the persons who might or might not attend such schools. It seems, that such rights and privileges as are granted by the SUBROGATION. N. Y. COURT OF APPEALS. Baldwin, applt., v. Moffett et al., trustees, et al., respts. Decided Nov. 20, 1883. State to its citizens and depend Plaintiff purchased certain bonds secured by solely upon the laws of the State for their origin and support are not within the inhibition of the Fourteenth Amendment of the Federal Constitution, and may lawfully be denied to any class or race by the State at its will and discretion. 16 Wall., 36; 21 Ohio, 210 48 Ind., 337, 363. The separate education of the white and colored races is no abridgment of the rights of either. 5 Cush., 198; 48 Ind., 327; 13 Abb., N. S., 150; 17 Am., 405; 40 How., 249; 8 Am., 713. RR. Co. v. Brown, 17 Wall., 446; Strander v. West Virginia, 10 U. S., 303, distinguished. Equality and not identity of privileges and rights is what is guaranteed to the citizen by the Fourteenth Amendment of the Federal Constitution. The civil rights act, Chap. 186, Laws of 1873, did not repeal the act authorizing the establishment of separate schools for colored people. Order of General Term, affirming order denying application for mandamus, affirmed. Opinion by Ruger, Ch. J.; Rapallo, Miller and Earl, JJ., concur. Danforth, J., reads a dissenting opinion; Finch, J., concurs. Andrews, J., absent. Vol. 18.-No. 5a. a second mortgage on condition that the proceeds should be used to pay off the prior mortgage, which was done, but the bonds were afterwards declared usurious and void. In an action to revive and foreclose the prior mortgage, Held, That as plaintiff's claim to subrogation arose out of the usurious agreement and could not be established without a resort to that agreement the action could not be maintained. This action was brought to revive and foreclose a mortgage which plaintiff by virtue of his right as a subsequent incumbrancer paid and caused to be discharged, and in consideration of which he received a new mortgage on the same premises, afterwards adjudged to be usurious and void. It appeared that plaintiff purchased thirteen out of forty bonds issued by one S., which were secured by a mortgage executed by S. upon land then subject to a prior mortgage. The bonds were purchased by plaintiff on condition that their proceeds should be used to pay off the prior mortgage. Upon this being done and a satisfaction of the prior mortgage being recorded the bonds were delivered to plaintiff. They were were afterwards declared void because purchased at a usurious discount. Mullin & Griffin, for applt. McCartin & Williams, for respts. Moffett et al., trustees, etc. F. W. Hubbard, for respts. Sherman et al. Held, That as plaintiff's claim to subrogation arises out of the usurious agreement between plaintiff and S, and cannot be established without a resort to that agreement, and as the link fails by reason of the usury, the claim to subrogation must fall with it and this action cannot be maintained. Patterson v. Birdsall, 6 Hun, 632; 64 N. Y., 295, distinguished. Judgment of General Term, af firming judgment dismissing complaint, affirmed. Defendant John D. Safford is solvent, and able pecuniarily to respond to appellant for what he may be entitled to as defendants' attorney; the settlement was not made collusively or with intent to defraud appellant, and was made before judgment. Homer Weston, applt. in person. Goodelle & Nottingham, for pltff. and defts. Held, That appellant has no footing which gives him a right to set aside the settlement and con Opinion by Rapallo, J. All tinue the action for the purpose of concur. ATTORNEY'S LIEN. N. Y. SUPREME COURT. GENERAL FOURTH DEPT. TERM. Decided Oct., 1883. Where a defendant settles a case before judgment without collusion and without intent to defraud his attorney, and defendant is solvent and able to pay his attorney, the latter has no right to set aside the settlement and continue the case for the purpose of collecting his costs, unless the case is within § 66 of the Code. In ejectment, a claim in defendant's answer for taxes paid and improvements to be set off against plaintiff's claim for damages is not a counter-claim within § 66 to which the attorney's lien can attach. Appeal by defendant's attorney from an order of Special Term denying his motion to set aside the settlement made by the parties, and the order of discontinuance herein, and for leave to continue the action to judgment for the purpose of perfecting his own rights. herein. collecting his costs, unless the case is within the provisions of § 66 of the Code of Civ. Pro., as amended in 1879. The action is ejectment. The complaint demands judgment for possession of the premises, and damages for withholding the same. Under § 1531 of the Code of Civ. Pro. one of the defendants has set up in her answer a "counterclaim to the damages demanded" in the complaint, consisting of taxes paid and improvements and repairs made on the premises, to be set off in extinguishment or reduction of any claim for damages which plaintiff may recover in the action. Held, That the answer does not present a counterclaim within the meaning of § 66 to which the lien of the attorney can attach. A cause of action is essential to constitute counterclaim. Code, $501. Here is no cause of action, and no claim which is, or can be, the subject of affirmative relief. Order affirmed, with $10 costs and disbursements. |