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who argued the appeal on their Decided Dec. 17, 1883. behalf. By the decision which

The Mayor, &c., of New York are not liable was made the judgment was af. for personal injuries caused by a defect in firmed "with costs and disburse- a highway in the “annexed district"; the ments of the appeal to the defend

duty of keeping in repair the highways in

said district having been imposed by the ants, respondents." Under this

legislature exclusively upon the Departdecision separate bills of costs ment of Parks of said city without any conupon appeal were taxed by the trol by the corporation. clerk in favor of the defendants, Appeal from judgment upon and such taxation was sustained verdict in favor of plaintiff for by the order appealed from. $25,000 damages for injuries sus

Henry Wehle, for applt. tained through the alleged negli

Geo. F. Langbein and Jesse K. gence of defendant. Also, appeal Furlong, for respts.

from order denying motion for a Held, That the right of the de

new trial. fendants to separate bills of costs On the night of February 27, depended upon the effect to be 1881, which was dark, rainy, foggy given to the language of the order and cold, plaintiff was driving, in entered upon the decision of the a covered rockaway drawn by a appeal.

team of horses, from the city of That that did not award separate New York to South Yonkers, costs to each of the defendants, along the public highway known but merely gave a general direc- as Broadway or old Kingsbridge tion affirming the judgment with road, when he accidentally drove costs, and as there was but one ap- into a ditch, over a foot wide and peal, and but one notice of it | which extended across the highserved, it could only have been way at its junction with McComb intended to include the costs of street. The accident occurred in that appeal, 45 How., 139 ;. 28 what is known as the annexed Hun, 505, and consequently the district, the territory separated respondents were entitled to but from Westchester County and anone bill of costs on the appeal. nexed to the city of New York

Order reversed and order en by Chap. 613 of the Laws of tered limiting the costs of the ap- | 1873.

. peal to one bill.

David J. Dean and Charles Opinion by Daniels, J.; Davis, Blandy, for applts. P. J., and Brady, J., concur. De Lancy Nicoll, for respt.

Held, That the Mayor, &c., MUNICIPAL CORPORATION. should not be held liable herein, NEGLIGENCE.

the duty of keeping in repair the

roads, streets and avenues of the N. Y. COMMON PLEAS. GENERAL

annexed district not having been TERM,

imposed upon them, but excluMartin L. Ehrgott, respt., v. sively upon the Department of The Mayor, &c., of N. Y., applts. Parks.

*

Although the act of annexation, | case, directly from the legislature, Laws 1873, Chap. 613, and the acts Laws of 1857, Chap. 771; 1859, amendatory thereof make the an- Chap. 363 ; 1861, Chap. 88 ; 1864, nexed district a part of the city of Chap. 275 ; 1865, Chaps. 564, 565; New York, and vest its public 1866, Chap. 367, 97; 1866, Chap. property in the said city, and de- 757, $3; 1867, Chap. 580, S2; clare that the Mayor, &c., succeed 1867, Chap. 697, $ 6; and although to the trusts and duties of the sev- the commissioners are appointed eral towns therein, yet the same by the Mayor, and the Park Destatutes divide the public duties partment is one of the departments to be performed between the of the city government, yet, as the Mayor, &c., of New York and public duty to be performed by certain of its independent depart. the commissioners in maintaining ments, assigning specific duties the roads, streets and avenues of to each. Thus in § 11 it is en- the annexed district is not laid by acted that “The Mayor, &c., the legislature upon the city, but of New York

shall upon the commissioners, and the exercise the same powers and city corporation has no private sball perform the same duties interest in that duty and derives in and over the territory here- no special benefit or advantage by annexed

as if from it, the commissioners are not, said territory had always been a with respect to that duty, servants part of the city of New York, ex- or agents of the municipality, cept as may be specially limited, and for their negligence, or that excepted or extended by this act,” of their employees or officers, the while in § 14 it is provided that corporation is not liable, even ** The Commissioners of the De- though snch negligence be in the partment of Public Parks of the care of what is made by the act city of New York shall have the corporate or trust property of the exclusive power to locate and lay city. out, construct and maintain all

Twogood v. Mayor, 15 W. Dig., public parks, streets, roads and 59, distinguished. avenues,

and to devise plans Judgment and order reversed, for and locate all bridges and new trial ordered, costs to appeltunnels, and shall have exclu- lant to abide event. sive control of the mainte

Opinion by Daly, J.; Daly, nance and construction of all Ch. J., concurs. Van Brunt, J., public parks within the territory dissents on the authority of Twohereby annexed, and to construct good v. Mayor, 15 W. Dig., 59. and maintain all bridges, tunnels, sewers, streets, roads and avenues, so located and laid out," &c.

WILLS. PROBATE. The Park Department exercises,

N. Y. COURT OF APPEALS. and has always exercised, inde. pendent powers derived, as in this In re probate will of Higgins.

Sworn

Decided Jan. 29, 1884.

as witnesses, and H. said he Where one of the witnesses to a will testifies did ; that they both then signed

to facts showing a strict compliance with it in the presence of each other the statute, the want of memory of the and of H. On cross-examination other witness will not overcome the posi- J. said that he could not swear that

tive testimony. The evidence of persons who were acciden

H. said that the signature to the tally present at the execution of the will, will was his, but he swore that H. but who had nothing to do with it, is not acknowledged that the instrument entitled to the same weight as that given

was his last will and testament. by the subscribing witnesses. Where a decree admitting a will to probate

Eugene B. Travis, for applt. has been rendered by the Surrogate on con

Samuel Hand, for respt. flicting evidence and affirmed by the Gen- Held, That the proof was suffieral Term it is not reviewable in the Court cient; that one of the witnesses havof Appeals.

ing sworn to facts showing a strict The question on this appeal is compliance with the statute, the whether H., the testator, acknowl-want of memory of the other edged his signature to his will to the witness cannot overcome the posisubscribing witnesses at that time tive testimony. they signed the attestation clause. Certain witnesses were The proof shows that H. drew the who had nothing to do with the will and brought it to one J., who execution of the will and were acwrote on the attestation clause. cidentally present. It was claimed One of the witnesses, S., testified that their testimony contradicted that he was present at that time, the subscribing witnesses. and that J. asked H. if the signa- Held, That the presumption is ture to the will was his, and H. that these witnesses did not give replied that it was; that J. then the same attention to what transasked H. if that was his last will pired as the subscribing witnesses and testament and he said it was ; did, and their testimony is not that at that time the will had been entitled to the same weight as the signed by H. and the two wit. evidence given by the subscribing nesses at his request, in his pres- witnesses. ence and in the presence of each The decision of the Surrogate other, signed their names thereto. admitting the will to probate was J., the other witness, did not re- affirmed by the General Term. member all that occurred, but tes- Held, That the Surrogate havtified that H. came into his office ing rendered the decree

upon with a paper he thought was the conflicting evidence as to the facts, will in controversy, and stated that and it having been affirmed by he desired him to witness his will; the General Term, it is not reviewthat he asked him if he acknowl-able in this court. 88 N. Y., 369; edged the paper to be his last will 87 id., 515. and testament and H. said he did; Judgment of General Term, af. that he then asked him if he de- firming decree of Surrogate, afsired S. and myself to sign it Itirmed.

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Opinion by Miller, J. All con- said company, drew a draft at

sixty days' sight on the company

for $13,000 to the order of B. & GUARANTY. PAYMENT. Co., and on July 7th drew a simi

lar draft for $8,000. B. & Co. inN. Y. COURT OF APPEALS.

dorsed both these drafts to plainThe Bank of California, respt., tiff before maturity. They were v. Webb et al., applts.

accepted but were not paid at their

maturity and were duly protested. Decided Jan. 15, 1884.

In November, 1879, this action Defendants gave a written guaranty of pay. was commenced against the dement of drafts to be drawn between certain

fendants upon their guaranty to dates by one A., provided the amount guar

recover the amount of the first anteed should not at any one time exceed $13,000; the guaranty to be continuous. draft. Their answer admits the HA, That it was not confined to drafts drawing of the draft, its acceptamounting to just that sum specified or to

ance, non-payment, protest, and a not more than that sum or to just one draft

demand drawn for that sum; but the guarantors are

them for its pay.

upon liable up to that sum for the balance due ment and their refusal to pay, and upon any drafts drawn during that period. they allege that the company deAs between the creditor and his debtor, unless livered to plaintiff a bill of lading the latter directs the application of a pay of a cargo of guano on board ship ment or requests the former to exercise his option, there can be no limit of time within worth about $8,000, which cargo which the creditor must make the applica- had been sold or would soon be tion.

sold and that the proceeds were to In July, 1878, the defendants be and should be applied on the gave plaintiff their written guar- draft in suit, and also that the anty of the payment at maturity company had in January, 1880, of all drafts that might be drawn paid, to apply upon the draft, at sixty days' sight by A., the $2,545.47. On the trial in Decemagent of the Am. G. Co., at Hono- ber, 1881, plaintiff called as a witlalu, on that company in New ness L., of the firm of L. & Co., York between August 1, 1878, and who were its New York agents, July 31, 1879, provided the amount who proved the indorsement of guaranteed should not at any one, the draft to plaintiff and that since time exceed $13,000. The writing the commencement of the action stated that the guaranty was to be two payments of $1,500 each, made continuous during the period on December 20, 1880, and June named and upon payment by the 25, 1881, had been made upon the company of any of the drafts the draft. On cross-examination L. guaranty was again to be in full testified that B. & Co. were bankforce and effect as to any other of ers in Honolulu and that the rethe drafts until the maturity and ceipt for the bill of lading dated payment of the last draft made October 21, 1879, mentioned in the during the period named. On answer, reciting that the bill was June 30, 1879, A., as agent for on account of the two drafts, was sent by them to him, and that the option as to the application when proceeds of the guano were he makes the payment.

After $7,199.92, and he was informed by that the money belongs to the letter from B. & Co. that plaintiff creditor and he controls its applihad also, through B. & Co. at cation. As between the creditor Honolulu, on January 6, 1880, re- and his debtor, unless the latter ceived the farther sum of $2,144. intervenes and requests him to exThe court below held that none of ercise his option, there can be no that sum was applicable upon the limit of time within which he must draft in suit. Plaintiff offered to make the application. If neither read in evidence the letter of B. & party makes any application of Co., advising L. & Co. of the pay- payment and the matter comes ment, but it was excluded as a into court then the court will make mere declaration of past events by such application of the payment B. & Co.

as equity and justice require. T. E. Stillman, for applts.

Also held, That the guaranty of Everett P. Wheeler, for respt. defendants being a continuing one

Held, Error ; that defendants to the extent of $13,000, it was not having called out on cross-exami- confined to drafts amounting to nation the information conveyed just that sum or to not more than by said letter, they made its con- that sum or to just one draft drawn tents their evidence and plaintiff for that sum. It therefore covered was entitled to have the letter read the two drafts, neither of which in evidence. The letter was com

were paid. Defendants were liable petent or the entire evidence of to plaintiff, after deducting the the witness was incompetent and $7,000 recovered in this action, on should have been stricken out or account of the other draft for the disregarded. It must be taken as balance up to $13,000. So long as proved that $2,144 was received by there was $13,000 due on both plaintiff in January, 1880, after drafts it could make no legal dilthe commencement of this suit and ference with defendants how the more than a year thereafter cred payments were applied. ited against the draft for $8,000, Judgment of General Term, as it had a right to do. 15 Wend., affirming judgment on verdict for 20 ; 43 N. Y., 53; 75 id., 461 ; plaintiff, affirmed. 83 id., 51 ; 4 Cra., 317; 2 B. & C., Opinion by Earl, J. All concur. 65; 4 N. & M., 1; 1 Am. L. Cas., 362.

A debtor paying money to a DISCOVERY. INSPECTION. creditor to whom he owes several

N.Y. SUPERIOR COURT. GENERAL debts may direct the application

TERM. of the payment, because the money is his and he may do as he will The Shoe & Leather Reporter with it and control its application. | Association, respt., v. Isaac H. But the debtor must exercise his Bailey, impld, applt.

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