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RES ADJUDICATA. SUBSTI. | ting, and Rapallo and Earl. JJ., TUTION.
not voting. N. Y. COURT OF APPEALS.
COMMON CARRIERS. BAG Smith, respt, V. Zalinski,
GAGE impld, applt.
N. Y. COURT OF APPEALS. Decided Jan. 29, 1884. An order was made, on notice, substituting c. & H. R. RR. Co., respt.
Isaacson, applt., v. The N. Y. the assignee of the cause of action as plaintiff, without directing an amendment of
Decided Jan. 15, 1884. the pleadings. Held, That the order was a conclusive adjudication as to the owner- An agreement by a railroad company to check ship and title of the substituted plaintiff
baggage by a specified through route in. and left only the issues originally framed cludes an agreement to deliver it at the end to be examined.
of its road to the next succeeding carrier Affirming S.C., 13 W. Dig: , 566.
on such route, and for a misdelivery to a
different carrier it remains liable as insurer After this action was commenced
for an injury or loss occurring on the route plaintiff's interest was transferred
to which it was div ed. and an order was made, on notice It is within the apparent scope of a baggageto defendant, substituting the
master's employment, when asked by a
passenger if the company checks over a transferee as plaintiff without di
route indicated by his ticket, to answer the recting an amendment of the com
question and bind the company by his anplaint beyond such substitution swer, and the passenger may rely upon or supplemental pleadings.
such answer without examining his check. Louis Marshall, for applt.
A baggage check does not embody the con
tract of carriage, but is only a voucher or G. Wilcoxen, for respt.
token to enable the holder to identify and Held, No error ; that this was claim his baggage at the end of the route. such an adjudica ion of ownership Reversing S. C., 13 W. Dig., 239. and title in the substituted plain- This action was brought to retiff as excludes that question from cover damages for the loss of plainthe issues to be tried and leaves riff's baggage. It appeared that only to be examined those origi- about July 1, 1876, plaintiff purnally framed and which the un- chased of defendant's agent at changed pleadings present Code, Niagara Falls tickets for himself S$ 756, 758, 759, 760 ; that such and family over defendant's road order became final upon the ques from Niagara Falls to New York tion of the transferee's ownership and return.
Plaintiff at that time and was conclusive. 3 T. &. C., held return tickets from Niagara 745 ; 44 N. Y., 673 ; 1 Bosw., 569; Falls to New Orleans by the Mo29 Barb., 664.
bile route, purchased at New Judgment of General Term, af- Orleans. It appeared that, in confirming judgment for plaintiff, nection with defendant's road, affirmed.
that ronte formed a continuous Opinion by Finch, J.. . All con- line of railroad between New York cur, excpt Ruger, Ch. J., not sit. and New Orleans, but no comniunity of interest between defendant | At the close of plaintiff's evidence and the several corporations ope- a motion to disiniss the complaint rating the lines of road embraced was granted. therein was shown. On August Horace E. Deming, for applt. 17, 1876, plaintiff presented his
Frank Loomis, for respt. tickets with his baggage to the
Held, Error ; that the agreement baggage-master at the defendant's to check the baggage by the Mobile baggage-room in the city of New route included an agreement ex vi York and requested him to check termini to deliver it at the end of the baggage from New York to its road to the next succeeding New Orleans by the route indicated carrier in its route. If such de by the tickets. The baggage. | livery had been made defendant's master asked to see the tickets, responsibility would have termiexamined them, and gave plaintiff nated, but having misdelivered two checks for his trunks, which the baggage contrary to the agreehe took and, without examining, ment to another carrierit remained put them in his pocket, and after- liable as an insurer for any injury wards gave to his wife for safe- or loss occurring on the route upon keeping. Plaintiff and his family which the baggage was diverted. commenced their return journey 33 N. Y., 610; 54 id., 500. on the same day to New Orleans On the sale of a passenger ticket on the route indicated by the tick- by a railroad company there arises ets. When near New Orleans the a contract to carry the passenger checks were handed to the agent and his baggage between the points of a transfer company, with direc- indicated on the company's road tions to deliver the baggage at and to deliver the baggage at the plaintiff's residence in that city. end of the route to the passenger It was then ascertained that the or his duly authorized agent. checks were those used for bag. Courts niay take judicial notice gage sent from New York to New of the existence of the custom, in Orleans via. what is called the case of throngh passengers having “Great Jackson” route from Ni- tickets for an entire route, owned agara Falls, and it subsequently and operated by separate but contranspired that the trunks were necting lines, having their bagsent by that route and while in gage checked by the first carrier transit were substantially destroy to the final destination, and delived by an accident at Tagaloo, ered at the end of his route to the Miss. A fac simile of the checks next succeeding carrier, who in shows the words New Orleans &
" New Orleans & turn delivers it to the next carrier, New York" distinctly, and at the and so on toties quoties until it bottom are numerous letters and reaches the possession of the last abbreviations, which, as explained, carrier on the route. indicate the several roads consti- A passenger has a right to astating the Great Jackson route sume that a baggage-master posfrom New York to New Orleans. sesses the requisite authority to
a Under the will of D. plaintiff's
make all usual and ordinary ar- mortgage on the premises to secure a part rangements with passengers in re
of the purchase money; he afterwards fore.
closed the mortgage, bid off the property, spect to the transportation of
and took a deed of the same to himself baggage. The checking of bag.
personally. Held, That he took title as trusgage over connected roads is one tee for his ward; that the court had power of the usual incidents of passenger
10 compel him to convey to the ward and to traffic and it is within the appar
set aside a mortgage executed by him on
the property, and that he could not defeat ent scope of a baggage-master's
an application for that purpose by suggestemployment, when asked by a ing that the title so acquired by him would passenger whether the company
not divest the ward of her contingent inchecks baggage over a route indi.
terest in the property.
A devisee cannot be charged with a debt of cated by his passage ticket, to an
his devisor except in a proceeding to which swer the question and bind the all the devisees are parties. company by his answer. The Affirming S. C., 13 W. Dig.. 104. giving of a duplicate check to a passenger is to enable him to iden- mother took a fee in a farm, de. tify and claim his baggage at the terminable upon her re-marriage, end of the route,and is not regarded and plaintiff a contingent fee de. as embodying the contract of car: pending upon that event. On riage but only as a voucher or February 6, 1879, plaintiff's mother token for the purpose mentioned. re-married. In 1870 an applica17 N. Y., 306; 31 id., 661 : 43 id., tion was made under the statute 264 ; 48 id., 212.
to sell the real estate of infants Plaintiff had a right to repose
and defendant T., who was execuupon the representation of the tor of the will of D., was appointed baggage master without examining special guardian of plaintiff and his checks. He was entitled at her interest was sold. T. executed least to have the question of neg- a conveyance of the infant's interligence on his part submitted to est to the purchaser, who paid the jury.
$2,300 of the purchase money and Judgment of General Term, executed a mortgage of $5,000 for affirming judgment dismissing the balance. Plaintiff's mother complaint, reversed and new trial concurrently with T.'s deed conordered.
veyed her interest in the farm to Opinion by Andrews, J. All said purchaser. It is to be inferred concur, except Earl,J., not voting. that $7,300 was the whole consid
eration paid. In 1879 T. com
menced an action to foreclose the TRUSTS. DEVISEES.
$5,000 mortgage and the farm was N. Y. COURT OF APPEALS..
sold by a referee under a judgment Dodge, by guardian, v. Stevens, in said action on February 3, 1879, impld.
and was bid in by T. in his own Decided Dec. 4, 1883.
name for $5,000 and a deed of it A special guardian, appointed in proceedings
executed to him. The referee acfor the sale of infant's real estate, took a Icepted T.'s receipt as special guar
dian for the amount bid, in lieu of the proceedings for the sale of an actual payment in money. Inter- infant's real estate, was ineffectual mediate the sale and delivery of to divest her contingent estate the deed T., in his individual char under the will of D. acter and as executor of D., upon Held, That this action being his own motion and without direc- brought to redress a violation of tion of the court, executed to de- trust defendants should not be fendant S. a mortgage for $2,766.14 permitted to defeat it by suggestto secure a debt due S. from the ing that the apparent title acestate of D. and for which S. had quired by such violation may not recovered a judgment against the after all, if allowed to stand, be executor. S. subsequently com effectual to divest the plaintiff of menced an action to foreclose bis her title to the property. mortgage, and pending that fore- S. claimed that he was entitled closure this action was brought to charge in this action plaintiff or against T. and S. to compel T. to the land devised to her with his convey to plaintiff the title ac- debt against D. It appeared there quired by him on the foreclosure were other devisees under the will of the $5,000 mortgage, and for the of D. who were not made parties cancellation of the inortgage of S. to this action. Geo. W. Weiant, for plff.
Held, Untenable; that as the T. F. Bush, for defts.
court in enforcing the liability of Held, That the action could be devisees acts under a special statmaintained ; that it is no answer utory authority it cannot disregard to the relief sought against T. that a limitation imposed by the statthe defect in his title would be ute which creates the remedy, 9 disclosed by an examination of the Paige, 28; 1 Barb. Ch., 467; 6 record. Plaintiff's mortgage was Hill, 350; and all the devisees extinguished by the foreclosure, must be joined in an action under and the court, as incident to its the statute as prescribed. 2 R. S., jurisdiction over trusts, had ample 449, 8852, 60; 11 Paige,513; 7 id.,354. authority to grant the relief de. Judgment of General Term, manded. 3 Sand. Ch., 592. It was affirming judgment for plaintiff, also proper for the court, for the affirmed. purpose of affording complete Opinion by Andrews, J. All relief and to free the title froni
concur. embarrassment, to set aside the mortgage to S.
APPEAL. PRACTICE. Also held, That the court, in
N. Y. COURT OF APPEALS. directing a sale of the interest of plaintiff, necessarily adjudged that Kilmer, appll. v. The N. Y. C. the case was within the statute, & H. R. RR. Co., respt. and the conveyance to T. par- Decided Jan. 22, 1884. ported to convey the entire title.
The trial court, on settlement of the case, reIt was claimed the sale, under
fused to direct certain exbibits to be printed
entire, but required appellant to paste them judge holds good until the final in the appeal book if copies were furnished
determination of the case. or in lieu thereof directed that either party
Motion denied. might refer to the original exhibits on the argument. Held, That the order holds Opinion by Danforth, J. All good until the final determination of the concur. case, and that appellant should not be compelled to print such exhibits as part of the return to the Court of Appeals.
PERJURY. Plaintiff failed to recover in the above entitled action, and in the N. Y. COURT OF APPEALS. case on appeal set out such por
The People, respts., v. Courttions of certain exhibits as he
ney, applt. thought material and as had been referred to on the trial. Defend- Decided Jan. 22, 1884. ant proposed as an amendment that the whole of the exhibits Chap. 678, Laws of 1869, is permissive, not
compulsory, and is not violative of $ 6, should be included. The trial
Art. 1 of the Constitution. judge disallowed the amendment, False swearing is perjury whenever the tesbut in settling the case required
timony is relevant to the case, although it
may not directly bear on the issue, as the appellant to paste the exhibits
where it affects the credibility of the witin the appeal book, if copies were furnished by the defendant, or in Affirming S. C., 18 W. Dig., 206. lien thereof directed that the origi.
The defendant was indicted for nal exhibits might be referred to the crime of perjury in having on the argument by either party. when on trial for forgery falsely Defendant furnished copies for testified that he had never been in General Term, and the decision of prison or gone by a name other that count being appealed from
than the one under which he was now moves that plaintiff print the indicted. The indictment was deexhibits as part of the return to
the following this court.
Plaintiff offered to attach them to the appeal book if Art. 1 of the Constitution no per
grounds: 1st. That by § 6 os copies were furnished by defend
son can be compelled in a criminal ant. The papers in question were
case to bear witness against himshown to be printed tariffs and self. 20. That Chap. 678 of the schedules prepared and issued by Laws of 1869 violates this consti. defendant, full of figures and mat
tutional provision. 3d. That ter which, in the opinion of the false swearing on the trial of an trial judge, was not material upon indicument by the party indicted, the trial, and to which it is alleged on his examination under the act no reference was made by the re
of 1869, is not therefore legal per. spondent in the court below.
jury. Matthew Hale, for inotion.
William F. Kintzing, for Held, that the motion should be applt. denied. The order of the trial John Vincent, for respt.