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made, which, however, was not dis- | namely, that if the settlement is in continued. This action is brought fraud of his lien the court will by the attorney, Tullis, against grant leave to the attorney to prohis client Bushnell and all secute the action for the purpose the defendants in the original of determining his right to a resuit, on the ground that by the covery as against the defendant in settlement his lien upon the the action and for the purpose of cause of action had been des establishing his lien upon the subtroyed. A demurrer to the com- ject matter of the action. The only plaint was overruled by the Special difference which the sixty-sixth and General Terms. The action section, perhaps, may have made was then tried against all the de- in the position of the attorney is fendants, a motion to dismiss the that he is not, under § 66, recomplaint was denied, and a ver. quired to show that the settlement dict given for the full amount was a fraud upon him, as he was claimed.

prior to the adoption of that sec. H. L. Clinton, C. A. Runkle and tion required to do, but that the H. W. Sackett, for applts.

leave to prosecute

the action J. H. Drake and G. W. Wilson, should be granted if the settlement for respt.

inequitably affected his lien upon Held, That the judgment cannot the cause of action. 21 Hun, 483; ; be sustained. Section 66 of the 24 id., 182; 24 id., 24; 22 id., 600; Code of Civ. Proc. extends 3 N. Y. Civ. Pro. Rep., 141. The the attorney's lien to the client's allegation that plaintiff's lien was cause of action, which lien attaches destroyed was not supported. to the verdict, report, decision or

Judgment reversed and new trial judgment in his client's favor and ordered, costs to appellant to abide the proceeds thereof, in whoseso- event. ever hands they may come, and Opinion by Van Brunt, J.; cannot be affected by any settle- Beach and Van Hoesen, JJ., conment by the parties betore or after judgment. In the case at bar, there having been no verdict, re

FRAUD. port, decision or judgment in favor of the plaintiff at the time of N. Y. SUPREME COURT. GENERAL

TERM. THIRD DEPT. the settlement, the lien is still confined to the original cause of ac- Adelia M. Greenman, respt., v. tion which has been placed in his Ira W. Watkins, applt. hands for collection. The attorney

Decided Nov., 1883. must under $66 take the same steps to establish his lien by a con- Where plaintiff purchased a house in reliance tinuance of the action notwith- upon defendant's statement that the cellar

was dry and that the water she then saw in standing the settlement as was de

it was the result of a freshet and induced cided to be the practice prior to

her not to make inquiries of the neighbors the adoption of that section

upon this question, and the cellar turned

cur.

out to be damp, Held, That an action for Decided Nov., 1883.
fraud in defendant's representation could
be supported.

Doubted, Whether Ch. 582, § 4 of Laws of The action was to set aside a

1864, providing that if the owner of land

taken for railroad purposes fails to have deed on the ground of fraud.

awarded to him more than the company Among other facts

facts the

the Court offered him before the appointment of found was that defendant told commissioners lie shall pay the costs of the plaintiff there had never been any

commission, is constitutional. water in the cellar of the house in

This was a proceeding under the question before the time plaintiff statute to take lands for railroad saw it ; that the water there then

purposes. A question in the case was in conseqnence of extremely was who should pay the costs. high water caused by a freshet in The company claimed to have made a river; that plaintiff proposed to the owner a better offer beforehand go to the neighbors and inquire than he ultimately received by the concerning the premises, and that award of the commissioners. Laws defendant, by artifice, persuaded of 1864, Ch. 582, $ 4. her not to do so. There was evi.

Wm. Lounsberry, for applt. dence in the case that defendant

Lawton & Stebbins, for respt. told plaintiff there was no use of Held, That the offer made in that; that he had been acquainted this case was not better. We may with the place as long as the neigh- add, here, that as private property bors and that he would not lie to

cannot be taken without just comher; and that she took his word pensation, Const., Art. 1, $ 6, we for this. There was also evidence have great doubt whether the exthat water had been in the cellar penses of taking it can ever be before. The Court found in favor penses of taking it can ever be

charged against the person whose of plaintiff.

property is taken. Suppose, for Waters, McClellan & Dillaye. example, that the value of the for applt.

property was no greater than the A. P. Smith, for respt. Held, That the facts found by the owner of the property could

expenses of the commissioners; if the Court were justified by the be made to pay these expenses he evidence, and that upon these facts would receive no compensation the judgment was correct.

whatever. And wherever he is Judgment affirmed.

made to pay such expenses he Opinion by Learned, P. J.; fails to receive just compensation Boardman and Bockes, JJ., con

to that extent.

Order reversed in so far as it reEMINENT DOMAIN. COSTS.

quires defendant to pay the sery

ices and expenses of the commisN. Y. SUPREME COURT. GENERAL sioners, otherwise affirmed, with TERM. THIRD DEPT.

costs to defendant against railroad. In re The Ulster & Delaware Opinion by Learned, P J.; RR. Co. v. Frederick W. Gross. Boardman and Bockes, JJ., concur.

cur.

SET OFF. ADMINISTRATOR. Judgment affirmed, with costs. N. Y. SUPREME COURT. GENERAL Boardman and Bockes, JJ., con

Opinion by Learned, P. J.; TERM. THIRD DEPT.

cur. Wm. H. Silvernail, applt., v. Eve M. Felts, respt.

MASTER AND SERVANT. Decided Nov., 1883.

NEGLIGENCE. Prior to the adoption of $ 1814, New Code, N. Y. SUPREME COURT. GENERAL an administrator could sue in his own name

TERM. THIRD DEPT. upon a cause of action which had accrued in favor of the estate since the death of the

Ellen Roach, admrx., respt., v. intestate ; and hence could set off such a demand against a claim alleged against him

The Fort Orange Paper Co., applt. individually.

Decided Nov., 1883. The action was for services by

Defendants, by agreement with a railroad an attorney. One defence was set

company, had the use of a side-track which off. On this point it appeared that connected its mill with the main line. plaintiff had foreclosed a mortgage Its roadway and equipment were furnished for defendant as administratrix, in part by each. Held, That defendant which resulted in a judgment for a

was liable to the representatives of a serv

ant of the railroad company, who was deficiency against one John P.

killed upon the side-track through defendFelts. Certain moneys of John P. ant's negligence ; that defendant's servants Felts were thereafter paid into

and those of the railroad company were not plaintiff's lands, as he claims, as

co-employees.

No one saw the deceased killed, and the cir. attorney for administratrix and

cumstances were such that he might have upon said deficiency. These mon- been struck by defendant's train, or by that eys defendant now seeks to set off of the railroad company. Held, That the against plaintiff's claims for serv

question was for the jury. ices against her individually. De. Action for negligence which fendant succeeded below.

caused the death of plaintiff's inW. H. Silvernail, for applt. testate. Defendant, a domestic corA. H. Farrar, for respt.

poration, had a paper mill which Held, A proper offset. This ac- was connected by a branch with tion was tried before Code, g 1814, the N. Y. C. & H. R. RR. Co. was in force. The liability of There had been, formerly, a switch plaintiff to defendant for this leading in the direction of the money received on the deficiency paper mill, and this was continued arose after the death of the intes to the mill by agreement between tate; and, therefore, before the defendant and the RR. Co. The New Code, she could have sued right of way for the new part of for it in her own name. 6 Barb., the branch and the engine used 330; S. C., 6 N. Y., 168. As she thereon was bought by defendant, might sue in her own name she while the track, ties and cars were could set it off against a claim laid and furnished by the RR. against her individually.

Co., which also kept the track in repair. Defendant had control of ant's train. Defendant asked a the branch and ran a train over it non-suit, on the ground of conwhen it wished, but so much of tributory negligence and that no the branch as had formerly been a negligence was shown in defend. switch-track continued to be used ant; and also claimed that there for such purposes by the RR. Co. was no evidence that the deceased The deceased, an employee of the was struck by defendant's train. RR. Co., was shovelling snow on The evidence showed that both its east (up) track. The branch trains were moving in the same ditrack was still further east, paral- rection at the same time, and only lel to the up-track, and distant two feet and a half of clear space from it about six feet. A freight between them. The Court refused train of 40 cars came north on the to non-suit, and plaintiff had a east track, at a speed of 15 to 20 verdict. miles an hour, ringing a bell and G. P. Jenks, for applt. whistling, as the accident happen- J. B. O'Malley, for respt. ed near a station and within the Held, That it was a question for limits of a village. In order to

In order to the jury. 80 N. Y., 623 ; 79 N. Y., avoid this train, deceased stepped 464. As to the deceased's negliover to the west rail of the branch- gence, of course he could have track, and turned his face towards gone east of the branch-track and the south. A train of defendant escaped danger. But he was cerhad been standing for about half tainly justified in believing that an hour on the branch-track about defendant's train, after standing 60 feet south of the point where still for half an hour, would give deceased had been at work, and sone notice when it moved. There where he stood after stepping over was evidence of negligence in deto the branch. The engine of this fendant, if the jury believed that train was in the middle-a passen- no bell was rung or whistle soundger car ahead of it, and a freight ed and that the conductor was not car behind it. While the N. Y. in his proper place. The conducCentral freight train was still pass tor should have been in his place, ing north, defendant's train started for, as the train was made up, the north, it seems, without any warn- engineer could not see whether any ing; its conductor was not on the one was on the track. train. He jumped on at the rear

Defendant is liable. For its own of the passenger car-his proper business and convenience it was position being at its forward end. allowed by the N. Y. C. RR. Co. While he was passing through this to run and control this train on the car to reach the forward end, he switch or branch track. This did was told by a boy, as he states, not make defendant an agent or that the train had ran over a man. employee of the N. Y. C., nor did No witness saw deceased killed, it make its servants co-employees but his body was dragged several with the deceased. 19 N. Y., 127; hundred feet underneath defend 57 N. Y., 108.

57 N. Y., 108. The question is not

JJ.,

concur.

whether plaintiff could have recov- such dates the defendant drew ered against the N. Y. C., 92 Ill., from the firm the sum of $721.36 42, but whether she can recover more than was due him from said against the person who did the in- firm for lis salary as clerk aforejury-i. e., the defendant.

said or by reason of any other Judgment affirmed, with costs. cause or thing whatsoever."

Opinion by Learner, P. J.; The complaint also averred that Boardman and Bockes,

the plaintiff succeeded to the business, book accounts and prop

erty of said firm of Albinola & PLEADING. CONCLUSIONS.

Bailey and to the claim against

the defendant; that said succes. N. Y. SUPERIOR COURT. GENERAL sion and title was obtained by a TERM.

written instrument on the part of Latimer Bailey, applt., v. James

the plaintiff's then co-partner, and

which instrument plaintiff will Richmond, respt.

refer to on the trial thereof." Decided June 2, 1883.

A. H. Nones, for applt.

G. A. Seixas, for respt. A complaint resting on the following allegations is demurrable, as stating only conclu

Held, That the demurrer should sions :

be upheld. That it is evident as That defendant became indebted, etc., in a to the first clause of the complaint,

certain sum in that, between certain dates, that conclusions only are pleaded, he was employed as a clerk by the firm of A. & B., “at a stated salary, and that between

and not facts upon which legal said dates he drew from said firm $721.36 judgment is asked. more than was duc him from said firm for That as to the second clause, bis salary as clerk, aforesaid, or by reason plaintiff has given his judgment

of any other cause or thing whatever. “That plaintiff succeeded to the business,

as to there having been a succesaccounts and property of said firm, and to

sion, rather than the facts which the claim against defendant ; that said suic- would make him the assignee or cession and title was obtained by a written transferee of the firm. instrument on the part of plaintiff's then

Judgment affirmed, with costs. co-partner, and which instrument plaintiff will refer to on this trial, etc.”

Opinion per curiam.

Appeal by plaintiff from judg. ment in favor of defendant upon ODD FELLOWS. SICK BENEdemurrer to the complaint.

FITS. The complaint l'ested upon the averments that between certain N. Y. SUPREME COURT. GENERAL dates the defendant became in

TERM. THIRD DEPT. debted in a certain sum, in that between the said dates the defend-Lewis W. Bachman, treasurer,

John H. Poultney, respt., v. ant was employed as a clerk by a

applt. firm of Albinola & Bailey, "at a stated salary, and that between Decided Nov., 1883.

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