RES ADJUDICATA. TUTION. SUBSTI- ting, and Rapallo and Earl. JJ., not voting. N. Y. COURT OF APPEALS. Smith, respt, V. Zalinski, impld, applt. Decided Jan. 29, 1884. An order was made, on notice, substituting the assignee of the cause of action as plaintiff, without directing an amendment of the pleadings. Held, That the order was a conclusive adjudication as to the ownership and title of the substituted plaintiff and left only the issues originally framed to be examined. Affirming S. C., 13 W. Dig., 566. After this action was commenced plaintiff's interest was transferred and an order was made, on notice to defendant, substituting the transferee as plaintiff without directing an amendment of the complaint beyond such substitution or supplemental pleadings. Louis Marshall, for applt. Held, No error; that this was such an adjudica ion of ownership and title in the substituted plaintiff as excludes that question from the issues to be tried and leaves only to be examined those originally framed and which the unchanged pleadings present Code, §§ 756, 758, 759, 760; that such order became final upon the ques tion of the transferee's ownership and was conclusive. 3 T. &. C., 745; 44 N. Y., 673; 1 Bosw., 569; 29 Barb., 664. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Finch, J.. cur, excpt Ruger, Ch. J., All connot sit COMMON CARRIERS. BAGGAGE. N. Y. COURT OF APPEALS. C. & H. R. RR. Co., respt. Isaacson, applt., v. The N. Y. Decided Jan. 15, 1884. An agreement by a railroad company to check baggage by a specified through route includes an agreement to deliver it at the end of its road to the next succeeding carrier on such route, and for a misdelivery to a different carrier it remains liable as insurer for an injury or loss occurring on the route to which it was diverted. It is within the apparent scope of a baggagemaster's employment, when asked by a passenger if the company checks over a route indicated by his ticket, to answer the question and bind the company by his answer, and the passenger may rely upon such answer without examining his check. A baggage check does not embody the contract of carriage, but is only a voucher or token to enable the holder to identify and claim his baggage at the end of the route. Reversing S. C., 13 W. Dig., 239. This action was brought to recover damages for the loss of plaintiff's baggage. It appeared that about July 1, 1876, plaintiff purchased of defendant's agent at Niagara Falls tickets for himself and family over defendant's road from Niagara Falls to New York and return. Plaintiff at that time held return tickets from Niagara Falls to New Orleans by the Mobile route, purchased at New Orleans. It appeared that, in connection with defendant's road. that route formed a continuous line of railroad between New York and New Orleans, but no commu Horace E. Deming, for applt. Frank Loomis, for respt. Held, Error; that the agreement to check the baggage by the Mobile route included an agreement ex vi termini to deliver it at the end of its road to the next succeeding carrier in its route. If such delivery had been made defendant's responsibility would have terminated, but having misdelivered the baggage contrary to the agree ment to another carrier it remained liable as an insurer for any injury or loss occurring on the route upon which the baggage was diverted. 33 N. Y., 610; 54 id., 500. On the sale of a passenger ticket by a railroad company there arises a contract to carry the passenger and his baggage between the points nity of interest between defendant | At the close of plaintiff's evidence and the several corporations ope- a motion to dismiss the complaint rating the lines of road embraced was granted. therein was shown. On August 17, 1876, plaintiff presented his tickets with his baggage to the baggage-master at the defendant's baggage-room in the city of New York and requested him to check the baggage from New York to New Orleans by the route indicated by the tickets. The baggagemaster asked to see the tickets, examined them, and gave plaintiff two checks for his trunks, which he took and, without examining, put them in his pocket, and afterwards gave to his wife for safekeeping. Plaintiff and his family commenced their return journey on the same day to New Orleans on the route indicated by the tickets. When near New Orleans the checks were handed to the agent of a transfer company, with direc-indicated on the company's road tions to deliver the baggage at plaintiff's residence in that city. It was then ascertained that the checks were those used for baggage sent from New York to New Orleans via. what is called the "Great Jackson" route from Niagara Falls, and it subsequently transpired that the trunks were sent by that route and while in transit were substantially destroyed by an accident at Tugaloo, Miss. A fac simile of the checks shows the words "New Orleans & New York" distinctly, and at the bottom are numerous letters and abbreviations, which, as explained, indicate the several roads constituting the Great Jackson route from New York to New Orleans. and to deliver the baggage at the end of the route to the passenger or his duly authorized agent. Courts may take judicial notice of the existence of the custom, in case of through passengers having tickets for an entire route, owned and operated by separate but connecting lines, having their baggage checked by the first carrier to the final destination, and delivered at the end of his route to the next succeeding carrier, who in turn delivers it to the next carrier, and so on toties quoties until it reaches the possession of the last carrier on the route. A passenger has a right to assume that a baggage-master possesses the requisite authority to mortgage on the premises to secure a part of the purchase money; he afterwards foreclosed the mortgage, bid off the property, and took a deed of the same to himself personally. Held, That he took title as trustee for his ward; that the court had power to compel him to convey to the ward and to set aside a mortgage executed by him on the property, and that he could not defeat an application for that purpose by suggesting that the title so acquired by him would not divest the ward of her contingent interest in the property. A devisee cannot be charged with a debt of his devisor except in a proceeding to which all the devisees are parties. Affirming S. C., 13 W. Dig., 104. Under the will of D. plaintiff's mother took a fee in a farm, determinable upon her re-marriage, and plaintiff a contingent fee depending upon that event. On February 6,1879, plaintiff's mother re-married. In 1870 an application was made under the statute to sell the real estate of infants and defendant T., who was executor of the will of D., was appointed special guardian of plaintiff and her interest was sold. T. executed a conveyance of the infant's interest to the purchaser, who paid $2,300 of the purchase money and executed a mortgage of $5,000 for the balance. Plaintiff's mother concurrently with T.'s deed conveyed her interest in the farm to said purchaser. It is to be inferred that $7,300 was the whole consideration paid. In 1879 T. commenced an action to foreclose the $5,000 mortgage and the farm was sold by a referee under a judgment in said action on February 3, 1879, and was bid in by T. in his own name for $5,000 and a deed of it executed to him. The referee accepted T.'s receipt as special guar estate Held, That this action being brought to redress a violation of trust defendants should not be permitted to defeat it by suggesting that the apparent title acquired by such violation may not after all, if allowed to stand, be effectual to divest the plaintiff of her title to the property. S. claimed that he was entitled to charge in this action plaintiff or the land devised to her with his debt against D. It appeared there were other devisees under the will of D. who were not made parties to this action. 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 the deed T., in his individual char- under the will of D. acter and as executor of D., upon his own motion and without direction of the court, executed to defendant S. a mortgage for $2,766.14 to secure a debt due S. from the estate of D. and for which S. had recovered a judgment against the executor. S. subsequently commenced an action to foreclose his mortgage, and pending that foreclosure this action was brought against T. and S. to compel T. to convey to plaintiff the title acquired by him on the foreclosure of the $5,000 mortgage, and for the cancellation of the mortgage of S. Geo. W. Weiant, for plff. T. F. Bush, for defts. Held, That the action could be maintained; that it is no answer to the relief sought against T. that the defect in his title would be disclosed by an examination of the record. Plaintiff's mortgage was extinguished by the foreclosure, and the court, as incident to its jurisdiction over trusts, had ample authority to grant the relief demanded. 3 Sand. Ch., 592. It was also proper for the court, for the purpose of affording complete relief and to free the title from embarrassment, to set aside the mortgage to S. Also held, That the court, in directing a sale of the interest of plaintiff, necessarily adjudged that the case was within the statute, and the conveyance to T. purported to convey the entire title. It was claimed the sale, under Held, Untenable; that as the court in enforcing the liability of devisees acts under a special statutory authority it cannot disregard a limitation imposed by the statute which creates the remedy, 9 Paige, 28; 1 Barb. Ch., 467; 6 Hill, 350; and all the devisees. must be joined in an action under the statute as prescribed. 2 R. S., 449, §§52, 60; 11 Paige, 513; 7id.,354. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Andrews, J. concur. APPEAL. PRACTICE. All N. Y. COURT OF APPEALS. Kilmer, appll. v. The N. Y. C. & H. R. RR. Co., respt. Decided Jan. 22, 1884. The trial court, on settlement of the case, refused to direct certain exhibits to be printed determination of the case. Motion denied. Opinion by Danforth, J. All entire, but required appellant to paste them | judge holds good until the final in the appeal book if copies were furnished or in lieu thereof directed that either party might refer to the original exhibits on the argument. Held, That the order holds good until the final determination of the case, and that appellant should not be compelled to print such exhibits as part of the return to the Court of Appeals. Plaintiff failed to recover in the above entitled action, and in the case on appeal set out such portions of certain exhibits as as he thought material and as had been referred to on the trial. Defendant proposed as an amendment that the whole of the exhibits should be included. The trial judge disallowed the amendment, but in settling the case required the appellant to paste the exhibits in the appeal book, if copies were furnished by the defendant, or in lieu thereof directed that the origi nal exhibits might be referred to on the argument by either party. Defendant furnished copies for General Term, and the decision of that count being appealed from now moves that plaintiff print the exhibits as part of the return to this court. Plaintiff offered to attach them to the appeal book if copies were furnished by defendant. The papers in question were shown to be printed tariffs and schedules prepared and issued by defendant, full of figures and matter which, in the opinion of the trial judge, was not material upon the trial, and to which it is alleged no reference was made by the respondent in the court below. Matthew Hale, for inotion. Held, that the motion should be denied. The order of the trial concur. CONSTITUTIONAL LAW. PERJURY. N. Y. COURT OF APPEALS. The People, respts., v. Courtney, applt. Decided Jan. 22, 1884. Chap. 678, Laws of 1869, is permissive, not compulsory, and is not violative of 6, Art. 1 of the Constitution. False swearing is perjury whenever the testimony is relevant to the case, although it may not directly bear on the issue, as where it affects the credibility of the wit ness. Affirming S. C., 18 W. Dig., 206. The defendant was indicted for the crime of perjury in having when on trial for forgery falsely testified that he had never been in prison or gone by a name other than the one under which he was indicted. The indictment was demurred to on the following grounds: 1st. That by § 6 of Art. 1 of the Constitution no person can be compelled in a criminal case to bear witness against himself. 2d. That Chap. 678 of the Laws of 1869 violates this constitutional provision. 3d. That false swearing on the trial of an indictment by the party indicted, on his examination under the act of 1869, is not therefore legal perjury. William F. Kintzing, for applt. John Vincent, for respt. |