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ties interested as beneficiaries in and discharged men. Proof was the estate had the right to the ex- given tending to show that the ercise of the discretion by both accident happened by the negliexecutors. 71 N. Y. 502 ; 4 Johns. gence of Frompton. . The work in Ch., 368.

process was building a bridge for The rule would have been other defendant. wise if the property agreed to be Held, That the action was not sold bad been personal.

made out. The general rule is The house and lot in question that a servant assumes all risks were not for the purpose now in of injuries incident to and occurhand personal estate. 4 Hill 492. ring in the course of his employThere may have been a conversion ment except such as are the acts of the real estate into personalty of the master himself or a breach for some purpose, but it physical- | by the master of some term of the ly remained real estate, taxable contract or of a duty of the masand controllable as such and it ter to the servant. The master is could only be conveyed as such. not responsible for the mere neg.

Judgment of General Term, ligence of an employee whereby affirming judgment dismissing another employee is injured. 81 complaint, affirmed.

N. Y., 516. Opinion by Earl, J. All con- The same case holds that the cur.

grade of the negligent employee

is not material ; that a superinMASTER AND SERVANT.

tendent with power to employ

men and to represent the master N. Y. SUPREME COURT. GENERAL

in other respects is in the manage. TERM SECOND DEPT.

ment of the machinery a fellow George F. Newbauer, applt., v. servant of the other operatives. The N.Y., L. E & W. RR, respt. Although the rule was established Decided Dec., 1883.

with a large dissent, it was estab

lished. The master is not responsible for the mere negligence of one employee whereby an

Shehan v. The N. Y. C. & H. other employee is injured, and the grade of RR., 91 N. Y., 332, and Dana v. the negligent employee is not material.

Same, 16 W. Dig., 395, distinAppeal from a judgment dis. guished. missing plaintiff's complaint. This is a plain case where the

Plaintiff is a carpenter, and was master has done everything. The at the time of the accident an em- foreman was competent. The as. ployee of defendant. Defendant sistants were skilful and suffihad a department of carpenters ciently numerous and the applianfor its several divisions, and upon were abundant and fully to the Delaware division, where the the purpose. In the management accident happened, one Robert of a good structure a precaution Frompton had charge with fore which would have insured safety men under him. Frompton hired was omitted and therefrom an

ces

accident happened. Unless the Various appeals were taken in rule is entirely abolished in re- the above cases. The actions were spect to injuries occasioned by one to recover arrearages of dividends employee through the negligence upon certain stock under the proof another there is no liability visions of a contract assumed by herein. Every employee has en- defendant as a part of its consolitire control over a particular dation agreement. branch of the corporation who is The first question is as to what deputed to give any order in its rate of interest should govern and management.

be allowed on the recovery since Judgment affirmed.

January 1st., 1880. Opinion by Barnard, P. J.;

E. S. Rapallo, for applt. Pratt, J., concurs ; Dykman, J., not sittting.

Lucien Birdseye, for respt.

Held, That inasmuch as interest

is recoverable as damages and INTEREST. COSTS.

not by force of the terms of the N. Y. SUPREME COURT. GENERAL contract, the legal rate must conTERM. FIRST DEPT.

trol, though the contract was en

tered into long prior to January James B. Jermain, respt., v. The 1st, 1880. 18 W. D., 160. L. S. & M. S. RR. Co., applt.; As to the other question in ref. Drake, respt., v. Same, applt., and erence to the meaning of the words three other cases.

"with costs," in the remittitur

from the Court of Appeals, grantDecided Jan. 25, 1884.

ing jndgment absolute to plaintiff Where interest is recoverable as a measure of

with costs," (lamages for breach of contract to pay over

Held, That “with costs” means certain moneys, and not by virtue of the the whole costs of the action and provisions of the contract, the legal rate

not merely the costs in the Court must govern, though the contract was made long prior to the act changing the rate of

of Appeals. 45 How., 139 ; 85 N. interest, which took effect January 1st, | Y., 241. 1880. In such case interest on the recov. Held further, That this Court ery since January 1st, 1880, must be at the

will not disturb the extra allow. rate of 6 per cent.

ance in the absence of any abuse l'pon the decision of an appeal by defendants to the Court of Appeals from a judg. of discretion by the Court below. ment granting a new trial, the remittitur Order's modified to conform to from the Court of Appeals granted judg. these views. No costs to either ment absolute to plaintiff ou defendant's stipulation, with costs. Held, That “ with party. costs" in the remittitur means the whole Opinion by Brady, J.; Davis, costs of the action, and not merely costs in P. J., and Daniels, J., concur.

the Court of Appeals. The Court will not reverse or modify an or

der granting an extra allowance except in cases of abuse of discretion by the Court below.

V.

NEGLIGENCE.

Defendants requested the court N. Y. SUPREME COURT. GENERAL into the opening in daylight he

to charge that if plaintiff walked TERM. FIRST DEPT.

was chargeable with negligence Jacob Heidinger, respt.,

within the rule, because the ordiCharles F. Hine et al., applts.

nary use of his senses would have

prevented it; and further, that Decided Dec. 21, 1883.

plaintiff did walk into that openIn an action for damages resulting from de ing in daylight.

fendant's negligence, when the evidence The court submitted to the jury leaves in doubt the question as to plaintiff's the question whether the daylight contributory negligence, the case should be

that was there was sufficient in submitted to the jury.

their judgment of the facts to warAppeal from judgment and from rant the conclusion that plaintiff order denying motion for a new if he had exercised proper care trial upon the minutes.

would have seen the opening and Action to recover damages for would have avoided it.

The jury injuries caused by defendant's rendered a verdict for plaintiff. negligence. Upon the trial it ap- Wm, H. Arnoux, for applts. peared that plaintiff, about three T. C. Campbell, for respt. o'clock in the afternoon of a clear Held, No error; the facts in day, while attempting to pass into this case were not such as were a hallway and up the stairs of proven in the case of Totten v. premises occupied by defendants, Phipps, 52 N. Y., 357. fell through an open hatchway and Plaintiff was familiar with the received the injuries for which the place of the accident and had suit is brought.

often passed over it in safety. If, The evidence of plaintiff showed as he testified, he had never obthat just previous to the accident served any indications of a hatchhe had been for some weeks in the way or any special danger at the employ of defendants and had re- locality, he would be justified in peatedly passed through said hall. believing that nothing would be way.

Plaintiff further testified found in the hallway from which that he had never observed in he would incur risk of such an insaid hallway anything showing jury as he received. that there was an opening in the It was therefore proper to subfloor and was not aware of its ex- mit to the jury the question of istence.

plaintiff's contributory negligence. Just before the accident plain- 91 N. Y., 303. tiff had been conversing with a Held further, That the leaving person outside the door, turned of the opening in the floor unsuddenly to pass in and up the guarded and unprotected and in stairs, made one step without look. disregard of the ordinance of the ing and fell into the unguarded corporation relating to such openopening

ings was sufficient prima facie evidence of negligence on the part should be carried free. In such of defendants.

cases the clerks are passengers Judgment and order affirmed. and entitled to protection. 66 N.

Opinion by Daniels, J.; Davis, Y., 313. The clerk was not travelP. J., concurs.

ing upon a free pass. The Government officers made requisition

for passes under the contract and NEGLIGENCE. CONTRACT.

defendant sent one with a conN.Y. SUPREME COURT. GENERAL

GENERAL dition upon the back of the pass, TERM. SECOND DEPT.

making the recipient agree to

waive his right to sue for injuries Mary A. Seabolt, admrx., respl., occasioned by the negligence of v. The New York. Lake Erie & the railroad company. This was W. RR. Co., applt.

not a part of the contract between Decided Dec., 1883.

the Government and defendant

nor of the contract between the A postal clerk who, under an agreement be

Government and the deceased. tween the Government and a railroad company, is to be carried free, is entitled to There was no basis for such a re. damages for injuries occasioned by the neg striction upon the carrying of the ligence of such railroad company notwith-clerk. There was no consideration standing a condition upon the back of the

moving either between the Govpass issued making the recipient agree to waive his riglit to sue for injuries occasioned

ernment or deceased and defendby the negligence of the railroad company, ant. The question of fact properly it being no part of the contract between arising upon the evidence having the Government and such company and been found in favor of plaintiff there being no consideration therefor.

the judgment should be affirmed Appeal from judgment in favor with costs. of plaintiff as administrator, for Opinion by Barnard, P. J.; the negligence of defendant in kil. Pratt, J., concurs; Dykman, J., ling plaintiff's intestate.

dissents. The deceased was a postal clerk and defendant was a carrier of mails for the Government by con

ADVERSE POSSESSION. tract. It was part of this contract N.Y. SUPREME COURT. GENERAL that the postal clerk should be

TERM. FIRST DEPT. carried free. The pass sent by defendant had a condition upon the Harriet L. Not, respt., v. John back making the recipient agree J. Carroll, appll. to waive his right to sue for in

Decided Dec. 21, 1883. juries occasioned by the negligence of the railroad company.

In computing the period during which posJ. F. Seybolt, for respt.

session of lands adverse to the owner and

his heirs has continued, the term of a valid Lewis E. Carr, for applt.

assessment lease of the premises, creating Held, That it was part of the

an outstanding term, must be deducted. contract that the postal clerk The Statute of limitations does not run

against the owners cluring the term of such 15th day of November, 1852, said a lease, for the reason that they are not en

Carroll assigned said lease to one titled to possession.

James McCormack, who took care Appeal from judgment in favor of the business of the Carroll famof plaintiff on trial at Circuit with. ily for a time after the father's out jury.

death in 1852. This suit was comAction to recover possession of menced in May, 1874. Defendant certain premises in the City of New relies upon the statute of limitaYork. Plaintiff is the sole heir at tions as a defence, claiming that law of one Henry C. Brier, who this action was not commenced was, at the time of his decease in within the twenty years limit. 1830, the owner of the premises 1. T. Williams, for applt. and who died intestate. Defend- G. W. Stephens, for respt. ant claims that his father entered Held, That, assuming that de. into possession of the premises in fendant's possession has been of 1848, claiming title as owner there such a character as to entitle him of, and that from that time he or to the protection of the Statute, his heirs have continued in pos. such possession has not continued session, living on the property, long enough to make the defence claiming title thereto.

On Sep- available. During a portion of tember 26, 1846, the premises were the time there was an outstanding sold by the Comptroller of the term created by the assessment City of New York for taxes to one lease, the validity of which was Harron for the term of fourteen recognized by defendant's father years unless redeemed in

two while in possession both by its years in pursuance of the Acts purchase and by its sale by him, mentioned in the certificate de and it was also recognized by livered to said purchaser. After plaintiff by reason of his taking two years, no redemption having no steps to invalidate the same been made, a lease was executed during the term for which it was by the corporation of the City of made. New York to one Joseph Blake, During that time the statute the assignee of said Harron. Sub

Sub. | did not run. 53 N. Y., 287. As sequently this lease, by various plaintiff had no present right of assignments, became the property | possession during the period of of one Charles Johnson, who, on fourteen years that period must. the 15th day of August, 1850, as- under the authorities, be deducted signed said lease and granted and from the period of adverse occupaconveyed the property described tion claimed to be shown by detherein, with covenants of war- fendant. Adverse possession apranty that the lease was good and pears therefore to have continued valid according to its tenor and only about twelve years. That is an effectual lease for the term not sufficient to constitute a despecified, to James Carroll, father fence. The result at which the of defendant. Afterwards, on the learned Court below arrived, al

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