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plainly the duty of the court to have passed upon the requests at or before the time when its decision was rendered, and it was irregular in the court to postpone its action thereon until the settlement of the

case on appeal, and since, when the case was settled, the requests were not passed upon, plaintiff would be deprived, if the case went to the Court of Appeals, of the right of review given by $993 of the Code.

Order reversed and proceedings remanded to court below so that the requests may be passed upon as required by § 1023 of the Code, and that, when passed upon, the same be made part of the record as of the date of the decision of the case in the court below. Opinion per curiam.

GUARDIAN. REMOVAL.

SURROGATE.

N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.

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In re guardianship of Wilson J. rogate must stand, as it does not B. Moore, a minor.

Decided Sept., 1883.

A petition for the removal of a general guardian alleged insecurity of his bond and irresponsibility, "drunkenness and improvidence," and the belief that "the infant's welfare will be promoted by the appointment of another guardian." The guardian answered denying the insufficiency of his bond and "all allegations as to his unfitness," whereupon trial was had on the merits and a decree of removal was made. Held, That though the petition was defective in not stating facts on which an issue could be made, yet after such answer and trial this does warrant the reversal of the decree; that the findings of the surrogate must not

clearly appear that his findings are against the evidence.

Inasmuch as the petition also prayed for a removal of the appellant and for an appointment in his place on the ground that "the infant's welfare will be promoted thereby," Code Civ. Proc., § 2832, and as this formed a part of the issue tried, a new citation to accomplish this purpose was unnecessary. Under all the circumstances the surrogate may have been satisfied that the welfare of the infant would be benefited by the decree,

That the decree was clearly within the jurisdiction of the surrogate and fairly authorized by

the proofs.

and aside from the merits upon | ant and plaintiff's assignor, wherethe issues of drunkenness, im- by plaintiff's assignor agreed to providence and insufficient secu- sell and convey certain stores and rity there is valid ground for sus premises in the city and county taining the decree upon the finding of New York, on a day fixed, in "That the infant's welfare will be consideration of defendant's deedpromoted by the appointment of ing other premises and paying a another guardian." certain sum in cash. It appeared, by way of explanation of the meaning of the word "stores" in the contract, that such word referred to gas pipes, water pipes, wash basins, and gas fixtures, which were to pass by the contract with the house. On the day for closing the contract it appeared by the evidence that the house was denuded of gas fixtures, gas pipes, water pipes, etc., which were in the house when examined, and which were, by the contract, to go with it. Defendant refused to accept the deed of the house in the condition it then was, or to fulfill the contract on his part. The court below directed a verdict for defendant.

Decree affirmed, with costs. Opinion by Pratt, J.; Barnard, P. J., and Dykman, J., concur.

CONTRACT.

N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.

William B. Smyth, applt., v.
Geo. W. Sturges, respt.

Decided June 1, 1883.

Defendant agreed with plaintiff's assignor to purchase a house which, at the time of entering into the contract, was in excellent condition, with gas fixtures, water pipes etc., throughout, which, by the terms of the contract were to pass with the house. On the day fixed for completing the purchase, when plaintiff's assignor tendered the deed, the house had been denuded of gas fixtures, water pipes, gas pipes, and other things which, by the contract, were to pass with the house. Held, That defendant properly refused to complete his purchase and accept the deed, as he was not

bound to accept a deed of the property in the condition it was in, the house being substantially different from the one defendant agreed to purchase.

Appeal from judgment entered upon verdict for defendant directed by the court.

Action to recover damages for a breach of contract between defend

A. Matthews, for applt.
J. C. J. Langbein, for respt.

Held, No error; that if all that is objectionable were stricken out of the case there would still remain the controlling fact that plaintiff's assignor had agreed to convey the store and premises, which contained valuable fixtures appurtenant to the land and forming part of the building which, at the time of the offer of the conveyance, had been taken down and removed by their owner, so that the store and premises were, in material respects, not the same property agreed to be purchased.

Judgment affirmed.

that plaintiff was not crossing the

Opinion by Davis, P. J.; Bra- track, but was attempting to get

dy, J., concurs.

RAILROADS. NEGLIGENCE.

PRACTICE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Nathan Pakalinsky, respt., v. The N. Y. C. & H. R. RR. Co., applt.

Decided June, 1883.

In an action against a railroad company for personal injuries, the fact that the engineer

neglected to look in the direction in which

he was backing his engine, when by so doing he could have seen the plaintiff and might have avoided the accident, warrants a finding of negligence on defendant's part. An exception to the refusal of a judge to

charge as requested is unavailing where the judge has already substantially charged as requested; and a general exception to a charge containing several unexceptionable propositions is unavailing.

Appeal from order denying defendant's motion for new trial on the judge's minutes after trial at Circuit.

Action for damages for injuries received by plaintiff at or near the Clinton street crossing of defendant's railroad in Syracuse, through the alleged negligence of defendant's servants. Plaintiff gave evidence tending to show that, while he was crossing the railroad track on the west sidewalk of Clinton street, he was run against by an engine and tender, backing from the west. Defendant produced evidence tending to show that the injury occurred at a point about thirty feet west of the crossing;

upon the engine or tender; and that immediately before the accident the engine had been standing still on the track, and at the time of the injury it had but just started, and had not completed one revolution of its wheels; and that the engine was moving to the west. Appellant's counsel contends that the verdict in so far as it finds in accordance with plaintiff's theory of the case is against the weight of evidence. It is contended that there is no evidence of negligence on defendant's part. It appears that plaintiff caught his foot between a rail and the planking, and before he could extricate himself was struck by the backing tender; and that if his foot had not been caught he could have crossed the track safely.

424.

In one respect the case is presented in a different aspect from that on the former trial. 82 N.Y.. It appears that the engineer did not look in the direction in which he was backing. He had his son with him, but did not cause him to look in that direction. The engineer testified that, from where he was on his engine when it was standing, he could see the crossing and could see whether there was anybody there in trouble; meaning, doubtless, that he could have seen if he had looked. He also testified that the east end of the tender was about thirty feet west of the crossing, and that when he was moving he could have stopped his engine in ten feet. Defendant's counsel asked the

No error can be assigned upon the refusal to charge as requested, because the judge had already charged the same proposition substantially, of his own motion and also in reply to a previous request of defendant's counsel. As to the exception to the charge as modi fied, we infer from the whole case that the modification referred to by the judge was not the request made by Mr. Garfield, but it was the modication elicited by his suggestion. In that case, the exception is clearly unavailing, for the modification as charged contains several distinct propositions, all of which, save perhaps the one in question, were clearly unexceptionable.

judge to charge that the engine | dence. The evidence warranted having been seen by plaintiff be- the jury in finding negligence in fore he went upon the track, the the engineer. absence of a light upon the rear of the engine was not an act of negligence on defendant's part that caused or contributed to the injury. The judge replied: "That I say, except so far as modified by the suggestion made by Mr. Garfield heretofore in the case." Mr. Garfield had asked the court to charge that if the engineer was prevented from seeing plaintiff on the track (if he was there), by reason of the darkness, then the failure to have a light on the rear of the tender is evidence of negligence. To which the court had replied, "I will say this, that it is a question of fact for the jury to say whether or not all was done that was proper to be done in order to constitute reasonable care. Of course the circumstances of the case, the circumstances of the situation, whether it was evening, whether dark or not, are elements to be considered in determining whether or not the engineer did all that it was his duty to do." Neither party excepted to that part of the charge, but when the judge, in replying to defendant's request, referred to the modification" by the suggestion made by Mr. Garfield," defendant's counsel excepted to the refusal to charge in the language requested, and to the modification as charged.

G. N. Kennedy, for applt. M. M. Waters, for respt. Held, We cannot say that the verdict should be reversed as clearly against the weight of evi

Order affirmed.

Opinion by Smith, P. J.; Hardin and Haight, JJ., concur.

MECHANICS' LIENS.

N. Y. SUPREME COURT. GENERAL
TERM. FOURTH DEPT.

Charles N. Brown, claimant, applt., v. Caroline Gregory, owner, applt., and William Funda et al., claimants, respts.

Decided June, 1883.

Under the Onondaga act, a lien may be foreclosed by the assignee of the claim.

Appeal from County Court judgment, entered on decision upon trial by the Court without a jury.

This is a proceeding under the Onondaga County lien law, Laws

1864, Ch. 366, as amended by Laws 1866, Ch. 788, to enforce plaintiff's lien for work done and materials furnished by him to Cady & Caffray, contractors for the construction of buildings upon a city lot, owned by appellant, Caroline Gregory. Merriam & Gregory, Funda & Howard, and Dodge, Miggs & Co., having filed liens prior to plaintiff, were joined as defendants with the owner and the contractors. Caroline Gregory contracted with Cady & Caffray for the erection of said buildings, and they nearly completed the work, when they surrendered the contract under an arrangement with the owner that she should complete the same and charge the expense to the contract price. The owner completed the work accordingly, and after deducting the expense and certain payments, there was left a balance of $1,688 due on the contract price. This excess the court divided between Merriam & Gregory, Funda & Howard, and Dodge, Miggs & Co. who had filed notices of lien in that order. The owner paid also $300 for painting, and $315 for building stairsand of the disallowance of those items she now complains, which presents the only matter for consideration. By the terms of the contract, Cady & Caffray were to do the painting and build the stairs, but they sublet both jobs. They contracted with one Wilson to do the painting for $300, and with one Stevenson to make the stairs. Merriam & Gregory sold Wilson the materials for the work, and he assigned his contract to

them. Merriam & Gregory charged the amount to George Gregory, son of the owner, who represented her in the whole transaction. Stevenson built the stairs for $315, which sum Merriam & Gregory paid him on the order of Cady & Caffray, and George Gregory paid the same to Merriam & Gregory. The county judge disallowed those items on the authority of Rollins v. Cross, 45 N. Y., 766, he holding that the liens of Wilson and Stevenson could not be assigned.

Hunt, Leavenworth & Weaver, for applt. Gregory, the owner. Hiscock, Gifford & Doheny, for respts.

Held, Rollins v. Cross arose under the lien law of Kings and Queens Counties, Laws of 1862, Ch. 478, which did not authorize the assignment of a lien contracted thereunder. But the Onondaga act authorizes the foreclosure of a lien by any claimant or his assigns. Laws of 1864, Ch. 366, § 4. The rights of Mrs. Gregory, on account of the payments made to Merriam & Gregory, upon the claims assigned to them by Wilson and Stevenson, are the same as if they had been made to the assignors.

Daniel Gregory, of the firm of Merriam & Gregory, was a son of the owner, and through him the business was transacted. His mother furnished him with funds from time to time, in advance, to pay on the contract, and he placed them in bank to the credit of his firm, and the firm charged the owners with all sums paid out by them on her account.

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