N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. John Jones, admr., respt., v. The U. & B. R. RR. Co., applt. Decided Jan., 1884. In an action for personal injuries resulting from collision with a train at a highway crossing, the jury were instructed, unqualifiedly, that it was for them to say, upon all the evidence, whether defendant had failed to do any act which, in the exercise of ordinary and reasonable care, it ought to have done, and which, if it had done, would have prevented the collision. Held, Error. Appeal from judgment on ver dict, and from order denying motion for a new trial. Plaintiff's intestate, his ten year old son, was killed by collision with defendant's locomotive at a highway crossing. Deceased, with his mother, was in a sleigh, driven by the servant of the boy's grandfather, who owned the sleigh and horses, and who had sent the servant with them. The complaint alleged defendant's negligence in giving no warning of the approach of the locomotive; and also that by reason of a fence erected by defendant near the crossing, and by reason of a high bank near by, travellers on the highway were prevented from seeing locomotives and cars approach the crossing from the direction in which this locomotive came until they reached a point near the railroad track. As to the question whether the bell was rung, as required by statute, the charge to the jury was satisfactory to both parties. As to the company's obligation to give other than the statutory warning, the judge left it to the jury to say whether the company had failed to do any act which, in the exercise of ordinary and reasonable care, it ought to have done, and which, if it had done, would have prevented the accident. The jury were not instructed that it was not imposed on the company as a duty to keep a watchman at highway crossings; nor were they told that, if the statutory signals were given, the remaining duty of the company toward travellers on highways was to run its trains and operate its road with due care and caution, and that outside of this the law imposed no duty on the company. A. M. Beardsley, for applt. Spriggs, Matthews & Spriggs, for respt. Held, Error. Under some circumstances other than the statutory precautions may be required to relieve the company from the charge of negligence. 71 N. Y., 228; 70 id., 119; 40 id., 9; 95 U. S., 161. Such additional precautions relate to the running of trains. and the use of the road in transacting the company's business. It is not requisite, under the rule, to place a flagman or maintain gates at street intersections. 40 N. Y., 9; 58 id., 457; 71 id., 228. The real question for the jury was: Did the company exercise ordinary care and prudence on this occasion in operating its road, by ringing the bell as the signal of the approaching engine, in view of the speed of the same and the obstructions at or near the crossing. As there must be a new trial, we do not consider the point of the driver's negligence. 66 N. Y., 11; organized, and that there had been N, Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Margaret E. Kearney, admrx., respt., v. George H. Thompson et al., applts. Decided Jan., 1884. Where defendants were sued as partners, and a witness called by them testified that he was a member of the firm, Held, A proper case for an order made on the trial directing plaintiff to make the witness a party defen dant. Appeal from Special Term or der, made on the trial, directing plaintiff to make John Luther a party defendant herein and serve him with supplemental summons and amended complaint. The complaint herein alleges that plaintiff's intestate and defendants were partners under the firm name of George H. Thompson & Co., and it demands an accounting and appointment of a receiver and payment to plaintiff of any sum that shall be found due her as administratrix on the accounting. The answer denies that Kearney was a member of the firm. At the trial defendants called as a witness John Luther, who testified, while being examined in their behalf, that he was a member of said firm when it was Vol. 18-No. 19. no change in the firm since. After the cause was submitted for determination the Court before which the trial was had made the order appealed from. The order stated that it appeared to the Court that the presence of Luther is necessary to a complete determination of the controversy. J. Van Voorhis, for applts. Held, In all actions affecting a partnership all the parties must be joined either as plaintiffs or defendants. Story's Eq. Pl., § 157; 2 Bro. Ch., 338; 3 Swanst., 139, note; 1 Ves., Jr., 417. Luther's testimony that he was a partner was at least prima facie evidence of the fact as against defendants, and it authorized the conclusion of the Special Term as to the necessity of Luther's presence. The order is within the power recognized by §§ 452 and 453 of the Code of Civ. Pro., and is affirmed with costs. Opinion by Smith, P. J.; Hardin and Barker, JJ., concur. pending between the trustee and the petitioners and others in the Supreme Court. It is in the discretion of the court to charge the trustee with the costs of an appeal occasioned by his conduct. Affirming S. C., 16 W. Dig., 345. B., a person interested in a trust fund created by the will of McC., presented to the surrogate a petition that J., the trustee under said will, be required to account. The petition set forth that B. was by the terms of the will entitled to the interest arising from the trust. fund; that it was so invested as to yield an annual income, of which at least $337.75 was then in the hands of the trustee, who refused to pay it over to B.; that more than one year had elapsed since the probate of the will and that there had been no judicial settlement of the account of the trustee. The trustee's answer denied neither the validity nor legality of the claim. It set up in bar to this proceeding an action pending in the Supreme Court, in which the trustee is plaintiff and B. and others defendants, for the purpose of settling conflicting claims alleged by the trustee to have been made on the trust fund and its income. No proof was given in support of this allegation. There was nothing to show that that action was necessary or even brought in good faith. H. M. Collyer, for applt. Charles H. Winfield, for respt. Held, That the petitioner was entitled to an order requiring the trustee to account, Code Civil Proc., 2803, 2804, and it was the duty of the surrogate to hear the allegations and proofs of the parties and make such decree in the premises as should be right. Code Civil Proc., § 2805. In the absence of the denial required by § 2805 of the Code of Civil Procedure the pendency of the action brought by the trustee in the Supreme Court was of no importance. 88 N. Y., 121; 92 id., 251. It was within the discretion of the court to impose the costs of the appeal upon the trustee, whose conduct occasioned them, and he and not the trust fund should bear the further burden of this unsuccessful appeal from its decision. Order of General Term, affirming decree of surrogate, affirmed. Opinion by Danforth, J. concur. EVIDENCE. All NY. SUPREME COURT. GENERAL Patrick W. Murphy, exr, respt., v. The N. Y. C. & H. R. RR. Co., applt. Decided Jan., 1884. Where M. sued a railroad company for personal injuries and was examined as a witness in his own behalf, but died before judgment, and a new action was brought after his death by his personal representatives, Held, That the deposition made by deceased in the former action is not competent evidence in the second action. Appeal from judgment on verdict and from order denying new trial. Plaintiff's testator received injuries while in defendant's employ and in the line of his duty. He survived the injuries fourteen months. He began an action EXECUTORS. POWERS. LIABILITIES. against defendant which was pen ding at the time of his death. N. Y. SUPREME COURT. GENERAL After issues were joined in that action plaintiff was examined as a witness in his own behalf, under 870, Code Civ. Pro. On such examination defendant appeared and cross-examined the deceased. On the trial of this action such examination was read in evidence by plaintiff, under defendant's objection and exception. This is an original action begun after the testator's death, under the act of 1847, Ch. 455, and amendments. Brown & Garfield, for applt. J. K. Fuller, for respt. Held, That the right of action of the testator in his lifetime did not survive his death. Broom Leg. Max., p. 409; Chit. Pl., 69; 23 N. Y., 465; 2. R. S., 447, §§ 1, 2; 75 N. Y., 192. The right of action given by the act of 1847 to personal representatives is a new right created by the statute, and is not a mere continuation of the right which the deceased had in his lifetime. 89 N. Y., 24-27; 23 N. Y., 465; 24 N. Y., 197; 30 Barb., 99; 3 Duer, 640; 18 Hl., 340. The deposition of the deceased taken in his action is not competent evidence in this action. The interlocutory proceedings in that action are not saved by § 881, Code Civ. Pro. TERM. FOURTH DEPT. Ledett A. Bostwick, respt., v. Emily P. Beach, exrx., applt. Decided Jan., 1884. Where executors agreed, partially in excess of their authority, to sell their testator's land, Held, That the agreement was void as against the estate; but as between themselves and the vendee the executors were personally bound so far as the terms of the agreement were in excess of their authority. 1 Appeal from judgment on Special Term decision. Nelson Beach died, leaving a will which provided for a division of his estate among his children after making bequests to his wife and to some of his children. The will contained the following powers. "I hereby appoint my wife, Emily P. Beach, executrix, and Alonzo H. Green and Horace L. Green, my sons-in-law, and Leonard C. Davenport, * my executors, * hereby authorizing them to rent, sell or convey my real estate * * * in accordance with the above provisions." Davenport did not qualify. * * * * In December, 1881, the executors entered into the following agreement: "Received, Watson, N. Y., 27 December, 1881, from L. A. Bostwick, five hundred dollars to apply on the purchase of the * * * * Nelson New trial granted, costs to abide Beach farm, this day bargained to event. Opinion by Barker, J.; Smith, P. J., and Hardin, J., concur. be sold to said Bostwick for eleven thousand dollars, and we hereby agree to execute a deed of said property to said Bostwick on the * * first of March, 1882, on the payment of the balance, ten thousand five hundred dollars. It is understood that the five hundred dollars this day received is to be deemed a forfeiture in case of noncompliance, and the undersigned agree to forfeit an equal amount in case of non-compliance on their part. It being a condition of the sale that Mrs. Emily P. Beach and daughters shall have a good and sufficient room in the residence on the farm for their use until May first, 1882, if desired." Signed by Alonzo H. Green, Horace L. Green, and Emily P. Beach, Executors. At the time of such sale there was a mortgage on the farm of $900, and Mrs. Beach occupied a part of the house and had an unassigned dower right in all the premises; and she declined to carry out the agreement. Thereupon plaintiff demanded a deed from the vendors, and deposited the balance of the purchase money in bank, to be delivered to defendants on execution and delivery of the deed, and such sum remained in bank at the time of the trial. It does not appear that the testator was under any personal liability to pay the mortgage debt. The Court directed a judgment that defendants execute a deed conveying to plaintiff a good and unincumbered title to the premises, and, in case the mortgage was not paid, that there be deducted from the unpaid purchase money the recover $500 against defendants, as executors, as damages for nonperformance. Mrs. Beach alone appeals. It is admitted that Mrs. Beach did not release her dower right by the contract. C. D. Adams, for applt. Held, The contract was manifestly executed by the executrix and executors in their representative capacity and not personally. 21 N. Y., 179; 64 id., 357. The agreement entitled the vendee to a perfect and unincumbered title. 5 Seld., 535; Rawle Cov., 430; Sug. Vend., Vol. 1, Ch. 7, § 1. The powers of the executors was limited to sell and convey the testator's interest in the lands. They promised and agreed to do more, and such promise being in excess of the authority vested in them it is void so far as the estate which they represent is concerned. As between themselves and the vendee they were personally bound by the terms of the agreement to the extent that they are in excess of their authority. 73 N. Y., 127; 47 id., 360; 41 id., 315; 8 Hun, 4. Judgment reversed, new trial ordered, costs to abide event. Opinion by Barker, J; Smith, P. J., concurs; Hardin, J., not voting. NEW TRIAL. amount of the same, and if the N. Y. SUPREME COURT. GENERAL widow did not release her dower right, that the value thereof be also deducted, and that plaintiff v. TERM. FIRST DEPT. Alfred H. Smith et al., respts., Henry Clews et al., applts. |