made, which, however, was not discontinued. This action is brought by the attorney, Tullis, against his client Bushnell and all the defendants in the original suit, on the ground that by the settlement his lien upon the cause of action had been destroyed. A demurrer to the complaint was overruled by the Special and General Terms. The action was then tried against all the defendants, a motion to dismiss the complaint was denied, and a verdict given for the full amount the full amount claimed. H. L. Clinton, C. A. Runkle and H. W. Sackett, for applts. J. H. Drake and G. W. Wilson, for respt. Held, That the judgment cannot be sustained. Section 66 of the Code of Civ. Proc. extends the attorney's lien to the client's cause of action, which lien attaches to the verdict, report, decision or judgment in his client's favor and the proceeds thereof, in whosesoever hands they may come, and cannot be affected by any settlement by the parties before or after judgment. In the case at bar, there having been no verdict, report, decision or judgment in fa namely, that if the settlement is in fraud of his lien the court will grant leave to the attorney to prosecute the action for the purpose of determining his right to a recovery as against the defendant in the action and for the purpose of establishing his lien upon the subject matter of the action. The only difference which the sixty-sixth section, perhaps, may have made in the position of the attorney is that he is not, under 66, required to show that the settlement was a fraud upon him, as he was prior to the adoption of that section required to do, but that the leave to prosecute the action should be granted if the settlement inequitably affected his lien upon the cause of action. 21 Hun, 483; 24 id., 182; 24 id., 24; 22 id., 600; 3 N. Y. Civ. Pro. Rep., 141. The allegation that plaintiff's lien was destroyed was not supported. Judgment reversed and new trial ordered, costs to appellant to abide event. Opinion by Van Brunt, J.; Beach and Van Hoesen, JJ., con cur. FRAUD. vor of the plaintiff at the time of N. Y. SUPREME COURT. GENERAL the settlement, the lien is still confined to the original cause of action which has been placed in his hands for collection. The attorney must under §66 take the same steps to establish his lien by a continuance of the action notwithstanding the settlement as was decided to be the practice prior to the adoption of that section- | TERM. THIRD DEPT. Adelia M. Greenman, respt., v. Ira W. Watkins, applt. Decided Nov., 1883. Where plaintiff purchased a house in reliance upon defendant's statement that the cellar was dry and that the water she then saw in it was the result of a freshet and induced her not to make inquiries of the neighbors upon this question, and the cellar turned out to be damp, Held, That an action for fraud in defendant's representation could be supported. The action was to set aside a deed on the ground of fraud. Among other facts the Court found was that defendant told plaintiff there had never been any water in the cellar of the house in question before the time plaintiff saw it; that the water there then was in consequence of extremely high water caused by a freshet in a river; that plaintiff proposed to go to the neighbors and inquire concerning the premises, and that defendant, by artifice, persuaded her not to do so. There was evidence in the case that defendant told plaintiff there was no use of that; that he had been acquainted with the place as long as the neighbors and that he would not lie to her; and that she took his word for this. There was also evidence that water had been in the cellar before. The Court found in favor of plaintiff. Waters, McClellan & Dillaye. for applt. A. P. Smith, for respt. Held, That the facts found by the Court were justified by the evidence, and that upon these facts the judgment was correct. Judgment affirmed. Opinion by Learned, P. J.; Boardman and Bockes, JJ., con cur. EMINENT DOMAIN. COSTS. N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. In re The Ulster & Delaware RR. Co. v. Frederick W. Gross. Decided Nov., 1883. Doubted, Whether Ch. 582, §4 of Laws of 1864, providing that if the owner of land taken for railroad purposes fails to have awarded to him more than the company offered him before the appointment of commissioners he shall pay the costs of the commission, is constitutional. This was a proceeding under the statute to take lands for railroad purposes. A question in the case was who should pay the costs. The company claimed to have made the owner a better offer beforehand than he ultimately received by the award of the commissioners. Laws of 1864, Ch. 582, § 4. Wm. Lounsberry, for applt. Lawton & Stebbins, for respt. Held, That the offer made in this case was not better. We may add, here, that as private property cannot be taken without just compensation, Const., Art. 1, § 6, we have great doubt whether the expenses of taking it can ever be charged against the person whose property is taken. Suppose, for example, that the value of the property was no greater than the expenses of the commissioners; if the owner of the property could be made to pay these expenses he would receive no compensation whatever. And wherever he is made to pay such expenses he fails to receive just compensation to that extent. Order reversed in so far as it requires defendant to pay the services and expenses of the commissioners, otherwise affirmed, with costs to defendant against railroad. Opinion by Learned, P J.; Boardman and Bockes, JJ., concur. Prior to the adoption of § 1814, New Code, N. Y. SUPREME COURT. GENERAL an administrator could sue in his own name upon a cause of action which had accrued in favor of the estate since the death of the intestate; and hence could set off such a demand against a claim alleged against him individually. The action was for services by an attorney. One defence was set off. On this point it appeared that plaintiff had foreclosed a mortgage for defendant as administratrix, which resulted in a judgment for a deficiency against one John P. Felts. Certain moneys of John P. Felts were thereafter paid into plaintiff's hands, as he claims, as attorney for administratrix and upon said deficiency. These moneys defendant now seeks to set off against plaintiff's claims for services against her individually. Defendant succeeded below. W. H. Silvernail, for applt. A. H. Farrar, for respt. Held, A proper offset. This action was tried before Code, § 1814, was in force. The liability of plaintiff to defendant for this money received on the deficiency arose after the death of the intestate; and, therefore, before the New Code, she could have sued for it in her own name. 6 Barb., 330; S. C., 6 N. Y., 168. As she might sue in her own name she could set it off against a claim against her individually. TERM. THIRD DEPT. Ellen Roach, admrx., respt., v. The Fort Orange Paper Co., applt. Decided Nov., 1883. Defendants, by agreement with a railroad company, had the use of a side-track which connected its mill with the main line. Its roadway and equipment were furnished in part by each. Held, That defendant was liable to the representatives of a servant of the railroad company, who was killed upon the side-track through defendant's negligence; that defendant's servants and those of the railroad company were not co-employees. No one saw the deceased killed, and the circumstances were such that he might have been struck by defendant's train, or by that of the railroad company. Held, That the question was for the jury. Action for negligence which caused the death of plaintiff's intestate. Defendant, a domestic corporation, had a paper mill which was connected by a branch with the N. Y. C. & H. R. RR. Co. There had been, formerly, a switch leading in the direction of the paper mill, and this was continued to the mill by agreement between defendant and the RR. Co. The right of way for the new part of the branch and the engine used thereon was bought by defendant, while the track, ties and cars were laid and furnished by the RR. Co., which also kept the track in ant's train. Defendant asked a non-suit, on the ground of contributory negligence and that no negligence was shown in defendant; and also claimed that there was no evidence that the deceased was struck by defendant's train. The evidence showed that both trains were moving in the same direction at the same time, and only two feet and a-half of clear space between them. The Court refused to non-suit, and plaintiff had a verdict. G. P. Jenks, for applt. J. B. O'Malley, for respt. Held, That it was a question for the jury. 80 N. Y., 623; 79 N. Y., 464. As to the deceased's negligence, of course he could have gone east of the branch-track and escaped danger. But he was certainly justified in believing that defendant's train, after standing still for half an hour, would give some notice when it moved. There was evidence of negligence in defendant, if the jury believed that no bell was rung or whistle sound repair. Defendant had control of the branch and ran a train over it when it wished, but so much of the branch as had formerly been a switch-track continued to be used for such purposes by the RR. Co. The deceased, an employee of the RR. Co., was shovelling snow on its east (up) track. The branchtrack was still further east, parallel to the up-track, and distant from it about six feet. A freight train of 40 cars came north on the east track, at a speed of 15 to 20 miles an hour, ringing a bell and whistling, as the accident happened near a station and within the limits of a village. In order to avoid this train, deceased stepped over to the west rail of the branchtrack, and turned his face towards the south. A train of defendant had been standing for about half an hour on the branch-track about 60 feet south of the point where deceased had been at work, and where he stood after stepping over to the branch. The engine of this train was in the middle-a passenger car ahead of it, and a freighted and that the conductor was not car behind it. While the N. Y. Central freight train was still passing north, defendant's train started north, it seems, without any warning; its conductor was not on the train. He jumped on at the rear of the passenger car-his proper position being at its forward end. While he was passing through this car to reach the forward end, he was told by a boy, as he states, that the train had ran over a man. No witness saw deceased killed, but his body was dragged several hundred feet underneath defend in his proper place. The conductor should have been in his place, for, as the train was made up, the engineer could not see whether any one was on the track. Defendant is liable. For its own business and convenience it was allowed by the N. Y. C. RR. Co. to run and control this train on the switch or branch track. This did not make defendant an agent or employee of the N. Y. C., nor did it make its servants co-employees with the deceased. 19 N. Y., 127; 57 N. Y., 108. The question is not whether plaintiff could have recovered against the N. Y. C., 92 Ill., 42, but whether she can recover against the person who did the injury-i. e., the defendant. Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Bockes, JJ., concur. PLEADING. CONCLUSIONS. such dates the defendant drew from the firm the sum of $721.36 more than was due him from said firm for his salary as clerk aforesaid or by reason of any other cause or thing whatsoever." The complaint also averred that "the plaintiff succeeded to the business, book accounts and property of said firm of Albinola & Bailey and to the claim against the defendant; that said succes N. Y. SUPERIOR COURT. GENERAL sion and title was obtained by a TERM. Latimer Bailey, applt., v. James Richmond, respt. Decided June 2, 1883. A complaint resting on the following allegations is demurrable, as stating only conclusions : That defendant became indebted, etc., in a certain sum in that, between certain dates, he was employed as a clerk by the firm of A. & B., "at a stated salary, and that between said dates he drew from said firm $721.36 more than was due him from said firm for his salary as clerk, aforesaid, or by reason of any other cause or thing whatever. "That plaintiff succeeded to the business, accounts and property of said firm, and to the claim against defendant; that said succession and title was obtained by a written instrument on the part of plaintiff's then co-partner, and which instrument plaintiff will refer to on this trial, etc." Appeal by plaintiff from judg written instrument on the part of the plaintiff's then co-partner, and which instrument plaintiff will refer to on the trial thereof." A. H. Nones, for applt. Held, That the demurrer should be upheld. That it is evident as to the first clause of the complaint, that conclusions only are pleaded, and not facts upon which legal judgment is asked. That as to the second clause, plaintiff has given his judgment as to there having been a succession, rather than the facts which would make him the assignee or transferee of the firm. Judgment affirmed, with costs. ment in favor of defendant upon ODD FELLOWS. SICK BENEdemurrer to the complaint. FITS. The complaint rested upon the averments that between certain N. Y. SUPREME COURT. GENERAL dates the defendant became indebted in a certain sum, in that between the said dates the defendant was employed as a clerk by a firm of Albinola & Bailey, "at a stated salary, and that between TERM. THIRD DEPT. Lewis W. Bachman, treasurer, John H. Poultney, respt., v. applt. Decided Nov., 1883. |