defendant while he was engaged in the
commission of an assault and battery upon
deceased, the case is within the statutory
definition of manslaughter in the first de-
gree.-The People v. McKeon, 571.

MUTUAL AID SOCIETIES.

1. Benefits payable under the constitution
and by-laws of "The Grand Lodge of the
Empire Order of Mutual Aid of the State
of New York," and of "The Grand Lodge
of United Workmen of the State of New
York," are not exempt from payment of
the debts of the beneficiary.-Bolt v. Key-
hoe, 88.

NATIONAL BANKS.

1. Plaintiff had no exchange committee as
required by its by-laws, and its discount
committee held no meetings. Defendant,
as cashier, with the knowledge and tacit
consent of the president and directors, dis-
counted certain drafts, the parties to which
were then of good credit but failed before
maturity of the drafts. Held, That defend-
ant was not liable for the loss, as there was
no claim that there was any want of integ-
rity, judgment or skill on his part.-The
Second Nat'l Bank of Oswego v. Burt, 56.

2. Defendant discounted drafts drawn by P.
& Co., upon W. & Co., two firms whose
members were the same persons but whose
business was carried on at different places
and was separate and distinct. Held, That
the parties to the drafts were two firms
within the meaning of plaintiff's by-law
requiring that the names of two responsible
parties should be on all discounted paper;
and that the discounting of these drafts
was not a loan of money within the pro-
hibition of the statute.-İd.

3. Defendant, in violation of a by-law, dis-
counted his own notes and used the pro-
ceeds in speculating in wheat, for doing
which he was discharged. He then de
posited the amount of his notes and de-
manded their return, which was refused,
but the money was retained by plaintiff.
Held, That plaintiff was bound to elect
whether it should require the money to be
returned or the wheat surrendered to it, and
that when it accepted the money it surren-
dered all interest in the wheat and was not
entitled to the profits arising on its sale.-
Id.

NEGLIGENCE.

1. Plaintiff, while descending on his em-
ployer's elevator, found its descent stopped
by an obstacle projecting over the shaft,
whereupon he allowed the machinery to
still move on, making a large amount of
slack suspending-rope before he checked it.
Without correcting this he removed the
obstacle, when the elevator fell some eight
feet, causing the injury complained of.
Held, That plaintiff's act was clearly negli-

gent, and that the fact that the safety ap-
pliances of the elevator were out of order
by reason of rust and want of oiling would
not establish any liability of defendant to
plaintiff.-Barnett v. Taylor, 4.

2. Where deceased, an employee of defend-
ant, was injured by the car in which he
was working being thrown from the track
by a spreading of the rails, and it appeared
that one of the ties was split and the spike
loosened, but it did not appear that it was
not caused by the accident, and there was
no suggestion that the employees who had
been repairing the track or any other em-
ployee was incompetent or that defendant
had any notice of the defect, Held, That
no negligence was imputable to defendant.
-Hickey v. The Sylvan Lake Ore & Iron
Co., 8.

3. An attempt to board a railway train while
the cars are in motion is contributory neg
ligence if injury results from such attempt,
and no recovery can be had for the injury.
-Solomon v. The Manhattan R. Co., 9.

4. When concurring negligence is shown to
have produced the conditions from which
injury and damage result, no recovery
can be had by the injured party whose
negligence contributed to the injury.-Id.
5. A landlord who rents apartments in a
building, but maintains possession and con-
trol of the common hall and stairway, is
under the same duty towards persons call-
ing socially upon his tenants to keep such
hall and stairway in a safe condition as he
is towards the tenants themselves; and his
liability to such persons, if injured by his
negligence, is the same as his liability to
his tenants under like circumstances.-
Henkel v. Murr, 22.

6. In order to charge the landlord, under
such circumstances, it must appear that,
either with notice of the condition caus-
ing the danger, or under circumstances
equivalent to such notice, he had failed
to take the necessary precautions.-Id.
7. The fact that after an accident had hap-
pened the landlord remedied the defect
which it was claimed had caused such ac-
cident is not admissible as evidence of
knowledge, on the landlord's part, of
dangerous condition at the time of the
injury.-Id.

8. In an action to recover damages for the
death of plaintiff's intestate caused by the
negligence of defendant, where the only
proof on the part of plaintiff is that de-
fendant made a large hole in a public high-
way and left the same improperly guarded
at night, and that the next morning the
dead body of plaintiff's intestate, who had
been seen late the night before in a sober
condition, was found in such hole, the
complaint should be dismissed.-Dorland
v. The N. Y. C. & H. R. RR. Co., 51.

9. If the circumstances upon which a charge
of negligence is based are complicated or
contradictory, and the general knowledge
and experience of men does not at once
approve or condemn the conduct, a case is
made for the jury. And where there is no
dispute as to the facts, the question of neg-
ligence is usually one of fact for the jury,
under proper instructions.-Nicholas et al.
v. The N. Y. C. & H. R. RR. Co., 92.

10. When a crowd of people took refuge from
a storm in a hotel, not being guests thereof,
and one of them, who entered the hotel
solely to escape the storm, was injured by
the falling of a floor caused by the unusual
crowd, Held, That the injured person as-
sumed the risks of going there at such a
time and cannot recover damages from the
hotel keeper, who is shown to have been
guilty of no negligence.-Converse v. Walk-
er, 120.

11. It is negligence to leave upon the side-
walk of a public street, unwatched and un-
cared for, blasting cartridges, the explosive
power of which is excessively great and
which require the greatest care in handling.
Where such cartridges, so left, explode
from an unknown cause, it raises a pre-
sumption of negligence on the part of the
person so leaving them anprotected.-Rol-
lins v. Farley, 136.

12. Damages may be recovered for injuries to
the windows of adjacent property caused
by the explosion.-Id.

13. In an action for injuries alleged to have
been caused by defendant's negligence it
appeared that defendant's horse was spirit-
ed, nervous and excited; that defendant
failed to turn him into the open road as
quickly as he should and when he did so hit
and broke plaintiff's carriage, injuring her ;
that defendant then returned with his horse
and stated that he couldn't manage his
horse, which was tender-mouthed, and had
neglected to put on the check-bit that day.
Held, That a refusal to nonsuit was proper;
that it was possible for the jury from the
evidence to infer negligence.-Tice v. Munn,
143.

14. A party who has caused an injury by his
negligence is liable for the consequences
thereof although they are aggravated by
the imperfect bodily condition of the party
injured.-Id.

15. Plaintiff jumped off the rear platform of
a horse-car in motion, and on the side of
the adjoining track whereon cars were con-
stantly passing in an opposite direction,
and in so doing fell within five feet of the
horses of an approaching car on said ad-
joining track. The driver of the car ap-
plied the brakes at once and stopped the car
before it had entirely passed over plaintiff's
body. Held, That there was no negligence
imputable to defendant, and that plaintiff

was guilty of contributory negligence.-
Maloney v. The Brooklyn City RR. Co., 152.
16. In an action against The Mayor, &c., of
New York City to enforce a claim for dam-
ages for negligence in allowing snow and
ice to accumulate and remain on the side-
walk, the plaintiff, having fixed the amount
of his claim in his preliminary demand to
the comptroller, will not at the trial be
allowed to increase his demand by amend-
ment of complaint.-Reed v. The Mayor,
&c., of N. Y., 212.

17. In such an action evidence of the length
and area of the sidewalks of the city under
its care and of ordinances of the common
council requiring owners of premises to
clean sidewalks in front of their premises,
and affixing penalty for failure, and of the
obstructions the city has to meet with in
its supervisory care of the streets, is com-
petent.-Id.

18. Plaintiff, who was nearly blind, turned
from the street upon which he was walking,
supposing he had reached a certain eating
house, and, by mistake, went up steps be-
longing to defendant's warehouse, through
a doorway, and fell into a hatchway close
to the door. Held, That the burden of
proof was on plaintiff to show that the ap-
pearance of the doorway was like that used
for the entrance of persons in order to es-
tablish an implied invitation to enter; that
plaintiff's defective vision did not affect
defendant's liability, and that the case does
not come within the rule permitting a re-
covery by a person who, proceeding on the
highway with ordinary care, inadvertently
steps from it into an excavation made by
defendants so near it that such an occur-
rence might reasonably be expected. - Oys-
terbank v. Gardner et al., 233.

19. Plaintiff, an employee of one L., the
owner of a floating elevator, was engaged
in loading grain in one of defendant's ves-
sels, and was injured by falling down a
hatchway in the lower deck, which was in
the exclusive charge of L's employees, and
which had been left open for the reception
of the grain. It did not appear that defend-
ant employed the elevator, or that the grain
was loaded for it. Held, That defendant
owed plaintiff no duty and was not liable.
-Higgins v. The General Transatlantic Co.,
259.

20. In an action to recover damages for injuries
caused by defendant's negligence, it appear-
ed that plaintiff, while descending a flight
of steps leading from a station of defend-
ant's elevated railroad, which at the time
was very dark, felt carefully with her foot
for every step, until within a few steps of
the ground, when, thinking she was at the
bottom, she stepped out and was precipita-
ted with great force. The negligence com-
plained of was the failure of defendant to
keep said stairway lighted. Held, That it

was a question for the jury whether or not
plaintiff used ordinary prudence in believ-
ing, when she fell, that she was about to step
from the last step, and that a verdict for
plaintiff should be sustained.--Flagg v. The
Manhattan R. Co., 271.

21. The complaint alleged that defendant
negligently allowed sparks of fire to escape
from one of its locomotives, which sparks
entered plaintiff's house, setting fire to his
curtains, furniture, &c., and that in his
efforts to extinguish the tire plaintiff's hand
was burnt, without any negligence on his
part, &c. In an action for the personal in-
jury, Held, That upon the complaint as
framed, there could be no recovery; the
damage being too remote..-Hinchey v. The
Manhattan R. Co., 273.

22. The action was for negligence which
caused the death of plaintiff's son. Plain-

tiff was his only next of kin; the son was
young and industrious, the father very
aged. A verdict of $800 was rendered.
Held, Proper, and that plaintiff should not
be confined to nominal damages only.--
Burke v. Witherbee et al., 369.

23. One who assumes the duties and is invest-
ed with the powers of a public officer is
liable to an individual who sustains special
damage by a neglect to properly perform
such duties.-Bennett v. Whitney et al., 393.
24. Defendants were sued by their names
and title of office for a neglect to perform
their duties properly, whereby plaintiff was
damaged. The word "as" did not precede
the official titles. Held, That the action
was against defendants as individuals; that
the addition of their titles of office was mere
descriptio persona.—Id.

25. In an action for damages resulting from
defendant's negligence, when the evidence
leaves in doubt the question as to plaintiff's
contributory negligence, the case should be
submitted to the jury.—Heidinger v. Hine
et al., 404.

26. A postal clerk who, under an agreement
between the Government and a railroad
company, is to be carried free, is entitled
to damages for injuries occasioned by the
negligence of such railroad company not-
withstanding a condition upon the back
of the pass issued making the recipient
agree to waive his right to sue for injuries
occasioned by the negligence of the rail-
road company, it being no part of the
contract between the Government and such
company and there being no consideration
therefor.-Seabolt v. The N. Y., L. E. & W.
RR. Co., 405.

27. In an action for personal injuries result-
ing from collision with a train at a highway
crossing, the jury were instructed, un-
qualifiedly, that it was for them to say,
upon all the evidence, whether defendant

had failed to do any act which, in the ex-
ercise of ordinary and reasonable care, it
ought to have done, and which, if it had
done, would have prevented the collision.
Held, Error.-Jones v. The U. & B. R. RR.
Co., 432.

28. Plaintiff, an infant of the age of dis-
cretion, was riding with her father under
circumstances giving her no control over
his conduct. Held, That the negligence of
the father was not imputable to her.-Scott
v. Wood, 441.

29. Plaintiff approached defendant's track at
a crossing and looked both ways but saw
no train, except one blocking the street,
and after waiting for it to leave she at-
tempted to cross when she was struck by a
fast train which came from the east and
which the testimony tended to show had
given no signal. Held, That there was no
such proof of contributive negligence as
would justify an interference with a verdict
for plaintiff.-Greany v. The L. I. RR. Co.,
463.

30. If a witness with acute senses stands
within 100 feet of a passing train and hears
no bell it is some evidence that none was
rung, and such evidence is admissible.-
Id.

31. A nonsuit in actions for negligence is
rarely proper either for absence of negli-
gence on the part of defendant or for con-
tributory negligence on the part of plaintiff.
-Taft v. The City of Troy, 478.

32. The absence of rubbers or other safe-
guards against icy walks is not such a want
of ordinary care as will prevent a recov-
ery.-Id.

33. An action under the statute of 1847 to
recover damages for the death of a per-
son resulting from injuries caused by the
negligence of another survives the person
guilty of such negligence and may be
maintained against his representatives.-
Hegerich v. Keddie, 528.

See COMMON CARRIERS, 1, 2; EVIDENCE,
28; LEASE, 9; MASTER AND SERVANT,
2, 3, 5, 6; MISTAKE, 2; MUNICIPAL COR-
PORATIONS, 3-6; NEW YORK CITY, 1;
RAILROADS, 1, 4, 9, 13, 17, 18.

NEGOTIABLE PAPER.

1. Where the defence to a promissory note
is that it was given in consideration of the
payee's assent to the discharge in bank-
ruptcy of a third person, and of his
forbearing to oppose such discharge,
Held, That the schedules in bankruptcy
are not competent evidence, as against
plaintiff, to show the amount of the bank.
rupt's indebtedness. -Scowden et al. v.
Markham, 183.

2. It is not error to admit an agreement
signed by defendant, recognizing the va-
lidity of the note two years after it was
given, and when it was about to mature.
-Id.

3. Proceedings in bankruptcy, when plain-
tiff was not present and in which he
took no part, are
immaterial to bind
plaintiff.-ld.

4. A promissory note payable on demand is
due forthwith and an action thereon against
the maker is barred by the statute unless
brought within six years from its date.-
Dunning v. Powell, 187.

5. In an action upon a promissory note proof
may be given on the part of defendant of a
prior agreement between the maker and
the payee providing for a mode in which
the debt should be satisfied without the
payment of money. Such proof does not
conflict with or contradict the notes, and
the performance of such agreement by
defendant constitutes a defence to the ac-
tion.-Nichol v. Nelson, 210.

6. In an action on a promissory note evidence
of the plaintiff's poverty during the time it
was running is relevant and material on the
question of payment. An error in reject-
ing such evidence is not cured by rejecting
evidence explaining plaintiff's delay.-
Bean v. Tonnele, 322.

7. A promise to accept sight drafts of which
the promisor should be advised as having
been drawn against particularly to be de-
scribed shipments of merchandise, to the
extent of $50,000 currency, on account of
subsequent remittances to be sent within a
week, is an unconditional promise to ac-
cept sight drafts to that amount, and as
such amounts to an actual acceptance of
the same under the statute in favor of any
person who, upon the faith of such prom-
ise, shall have received the draft for a valu-
able consideration.-The Germania Nat'l
Bank v. Taaks et al., 379.

8. A contract to accept a draft upon the ful-
filment of certain conditions, and for that
reason not within the language of the
statute, is nevertheless binding and enures
to the benefit of any person afterward re-
ceiving-for value and in good faith, and
in reliance upon such contract--a draft
drawn in compliance with the conditions
imposed, and such person can enforce said
contract by action for his protection and in-
demnity.-Id.

9. When the holder of a promissory note
payable on demand demands payment
thereof of the maker personally, although
the note by its terms is payable at a certain
bank, and payment thereof is refused, in
order to hold an endorser he must immedi-
ately present it at the bank named and
notify the endorser of its non-payment,

and if he neglects to do so the endorser will
be discharged.--Parker v. Stroud et al., 454.
10. An accommodation indorser is not a
simple surety.-Converse v. Cook, 462.

See CONTRACT, 3; GUARANTY, 1, 4; LIMI-
TATION, 7; PARTNERSHIP, 9; SURETY-
SHIP, 8.

NEW TRIAL.

See CRIMINAL LAW, 1, 2; PRACTICE, 12, 17,
18.

NEW YORK CITY.

1. The Mayor, &c., of New York are not
liable for personal injuries caused by a de-
fect in a highway in the annexed district,
the duty of keeping in repair the highways
in said district having been imposed by the
legislature exclusively upon the Depart-
ment of Parks of said city without any con-
trol by the corporation.-Ehrgott v. The
Mayor, &c., of N. Y., 292.

2. Plaintiff's assignor held a contract with the
city which provided that he should furnish
satisfactory evidence to the commissioner
that all persons who had done work or
furnished materials under the contract, who
had given notice that a balance was due
them, had been fully paid or secured. R.
a material man, filed such notice, but in an
action on the contract, to which he was a
party defendant, failed to show that the
materials were furnished under that con-
tract and in reliance on its terms. Held,
That R. was not entitled to recover the
amount claimed by him.—Quinlan v. Rus-
sell, 392.

3. The Medical Superintendent of the New
York City Asylum for the Insane, appoint-
ed by the Commissioners of Charities and
Corrections, is not an officer of the city cor·
poration, and does not come within the
provisions of Section 59 of the Consolida-
tion Act of 1882, prohibiting such an officer
from being interested in any work or
business the expense of which is payable
out of the city treasury.-Macdonald v. The
Mayor, &c., of N. Y., 535.

4. Said $59 is not to be broadly construed,
because its effect is to restrict the exercise
of private rights by restraining a class of
persons from becoming interested in the
performance of contract work or business
in which, by general law, all persons may
engage. Id.

See INJUNCTION, 1, 3; REMOVAL, 1.

NUISANCE.

1. A court of equity has jurisdiction to re-
move an unlawful obstruction in a public
street and award pecuniary damages at the
suit of a party injured and in an action by
the People.-The People v. The Metropolitan
Telephone & Tel. Co., 457.

2. In an action to compel the removal of an
unlawful obstruction in a public street,
which consisted of defendant's erecting
telegraph poles of larger size and higher
than the statute permitted, and to recover
damages for such obstruction, the jury
found a verdict for nominal damages. Held,
That in the absence of any special findings
the court could not award judgment direct-
ing the removal of the poles, or any judg
ment other than for damages found by the
jury and costs.-Id.

3. A complaint at the suit of the people which
alleges facts showing that certain telegraph
poles erected by defendant had been im-
properly erected in the street in the city of
New York and incommoded and interfered
with its use as a public highway states a
cause of action for damages and also for
the abatement and removal of the poles
constituting such obstruction.-Id.

See RAILROADS, 15, 16.

ODD FELLOWS.

In

1. Plaintiff became a member of a lodge of
Odd Fellows in 1849. A by-law then pro-
vided that a sick member should receive
four dollars per week. The constitution
and by-laws provided that a by-law might
be amended by a two-third vote. Plaintiff
was taken sick in 1875 and remains so.
July, 1878, the by-law was amended so as to
give persons who had been sick more than
a year one dollar a week after that period
had expired. After July, 1879, plaintiff was
paid but one dollar a week. In an action
for the remaining three dollars per week,
Held, That plaintiff could not recover.-
Poultney v. Bachman, 126.

2. When a rule gives a member a right of
appeal he must prosecute that appeal to the
highest tribunal within the society in order
to entitle himself to the right to bring an
action at law against the society.-Id.

OFFICERS.

See CORPORATIONS, 20, 21; NEGLIGENCE, 23.

PARTIES.

1. The question whether a person has been
properly made a party to an action cannot
be raised on a motion to strike out the al-
legations in the complaint referring to his
interest in such action.-Hagerty et al. v.
Andrews et al., 140.

2. The power given to a court to expunge
matter from a pleading on a motion for
irrelevancy refers to such matter as is irrel-
evant to the cause of action or defense at-
tempted to be stated against the moving
party, and does not enable a party to strike
out allegations relating to himself because
they are irrelevant to an alleged cause of
action against some other party.-Id.

3. Plaintiff sued defendant, as owner of a
vessel on which he shipped as seaman, for
damages for the wrongful act of the master
in compelling him to do the work of a sea-
man when unfitted therefor by injuries.
The answer set up the fact that there were
other owners. Held, That as a good cause
of action was stated, arising not out of the
shipping contract, but from a breach of the
duty of the owners to plaintiff, through
their agent, the master, a demurrer to such
answer was properly sustained.-Petersen
v. Swan, 491.

See EJECTMENT, 4; EMINENT DOMAIN, 11;
INFANTS, 1, 2; INJUNCTION, 7; MECHANICS
LIENS, 2; MORTGAGE, 12, 17; PRACTICE, 16.

PARTITION.

1. Under § 1533 of the Code of Civ. Pro. an
action brought by a joint tenant, or a tenant
in common of a vested remainder, to par-
tition real estate, subject to the interest of
the owner of the particular estate, can be
maintained only when actual partition of
the property is possible; and when it ap-
pears that such partition cannot be made
the court has no jurisdiction except to pro-
nounce judgment dismissing the complaint;
and the consent of the owner of the partic-
ular estate that the property be sold, and
to receive a gross sum out of the pro-
ceeds of the sale of the property in lieu of
such particular estate, does not enable the
court to proceed and enter judgment of
sale.-Scheu v. Lehning et al, 261.

2. The value of an estate given in a will to
the widow of the testator for her life, pro-
vided she remained his widow, with re-
mainder to his children in the event of her
death or remarriage, but reserving to her
her dower right in the latter event, can-
not be computed by the annuity tables.—
Id.

3 In an action for the partition of real prop-
erty, where one of the parties is the un-
disputed owner of two thirds of the
property to be divided, while the title to
the remaining one-third is in dispute among
the other parties, the court, in the interloc-
utory judgment, will order the sale of the
property in one parcel, and give directions
that one-third of the proceeds shall be
brought into court to await the result of
the controversy over its ownership, although
if there had been no such controversy the
property would have been actually par
titioned.-Fleming et al. v. Burnham et al.,

559.

See APPEAL, 19; BAR, 7; COSTS, 3; GUARD-
IANS, 2; LUNATICS, 1.

PARTNERSHIP.

1. A transfer by one partner to the other of
his interest in the firm does not transfer the
exclusive right to use a partnership trade-