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.
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.
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.
See CRIMINAL LAW, 1, 2; PRACTICE, 12, 17, 18.
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.
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.
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.
See CORPORATIONS, 20, 21; NEGLIGENCE, 23.
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.
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.,
See APPEAL, 19; BAR, 7; COSTS, 3; GUARD- IANS, 2; LUNATICS, 1.
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-
« PreviousContinue » |