The N.Y. Weekly Digest of Cases Decided in the U.S. Supreme, Circuit, and ...

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 wbile

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. T'he Manhattan R. Co., 9.
4. When concurring negligence is shown to

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-
grce.- 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 Murual 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.—Buli 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 Natl 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.- id.
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. —
Ia.

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 be removed the
obstacle, when the elevator fell some eight
feet, causing the injury complained of.
Held, That plaintiff's act was clearly negli-

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 ball 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 liabiliiy 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, wbo had
been seen late the night before in a sober
condition, was found in such hole, the
complaint should be dismissed.--Dorlanu
v. The N. Y. C. & A. R. RR. Co., 51.

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 ilic amount
of bis 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 allixing 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.

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 cariridges, 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 bis
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 ncgligence
imputable to defendant, and that plaintiff

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. Hell, That defendant
owed plaintiff no duty and was not liable.
- Iliggins 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

Id.

was a question for the jury whether or not had failed to do any act which, in the ex-
plaintiff used ordinary prudence in believ- ercise of ordinary and reasonable care, it
ing, when she fell, that she was about to step ought to have done, and which, if it had
from the last step, and that a verdict for done, would have prevented the collision.
plaintiff should be sustained. --Flagg v. The Held, Error. -Jones v. The U. & B. R. RR.
Manhattan R. Co., 271.

Co., 432.
21. The complaint alleged that defendant

28. Plaintiff, an infant of the age of dis-
negligently allowed sparks of fire to escape

cretion, was riding with her father under
from one of its locomotives, which sparks

circumstances giving her no control over
entered plaintiff's house, setting fire io his his conduct. Meld, That the negligence of
curtains, furniture, &c., and that in his

the father was not imputable to her. -Scott
efforts to extinguish the tire plaintiff's hand

V. Wood, 441.
was burnt, without any negligence on his
part, &c.
In an action for the personal in-

29. Plaintiff approached defendant's track at
jury, Held, That upon the complaint as
framed, there could be no recovery; the

a crossing and looked both ways but saw
damage being too remote..-Hinchey v. The

no train, except one blocking the street,
Manhattan R. Co., 273.

and after waiting for it to leave she at-

tempted to cross when she was struck by a
22. The action was for negligence which

fast train which came from the east and
caused the death of plaintiff's son. Plain-

which the testimony tended to show had
tiff was his only next of kin ; the son was

given no signal. Held, That there was no
young and industrious, the father very

such proof of contributive negligence as
aged. A verdict of $800 was rendered.

would justify an interference with a verdict
Held, Proper, and that plaintiff should not

for plaintiff.—Greany v. The L. I. RR. Co.,
be confined to nominal damages only.--

463.
Burke v. Wilherbee et al., 369.

30. If a witness with acute senses stands

within 100 feet of a passing train and hears
23. One who assumes the duties and is invest-

no bell it is some evidence that none was
ed with the powers of a public officer is

rung, and such evidence is admissible.-
liable to an individual who sustains special
damage by a neglect to properly perform
such duties. ---Bennett v. Whitney et al., 393. 31. A nopsuit in actions for negligence is

rarely proper either for absence of negli-
24. Defendants were sued by their names gence on the part of defendant or for con-

and title of office for a neglect to perform tributory negligence on the part of plaintiff.
their duties properly, whereby plaintiff was — Taft v. The City of Troy, 478.
damaged. The word

did not precede
the oflicial titles. Held, That the action 32. The absence of rubbers or other safe.
was against defendants as individuals ; that guards against icy walks is not such a want
the addition of their titles of office was mere of ordinary care as will prevent a recor-

descriptio persona.--Id.
25. In an action for damages resulting from 33. An action under the statute of 1847 to

defendant's negligence, when the evidence recover damages for the death of a per-
leaves in doubt the question as to plaintiff's son resulting from injuries caused by the
contributory negligence, the case should be negligence of another survives the person
submitted io the jury.-Heidinger v. Hine guilty of such negligence and may be
et al., 404.

maintained against his representatives.-
26. A postal clerk who, under an agreement

Hegerich v. Keddie, 528.
between the Government and a railroad

Sce COMMON CARRIERS, 1, 2; EVIDENCE,
company, is to be carried free, is entitled

28; LEASE, 9; MASTER AND SERVANT,
to damages for injuries occasioned by the

2, 3, 5, 6; Mistake, 2; MUNICIPAL COR-
negligence of such railroad company not.

PORATIONS, 3-6 ; New York City, 1;
withstanding a condition upon the back

RAILROADS, 1, 4, 9, 13, 17, 18.
of the pass issued making the recipient
agree to waive his right to sue for injuries
occasioned by the negligence of the rail-

NEGOTIABLE PAPER.
road company, it being no part of the
contract between the Government and such

1. Where the defence to a promissory note
company and there being no consideration is that it was given in consideration of the
therefor. - Seabolt v. The N. Y., L. E. & W. payee's assent to the discharge in bank.
RR. Co., 405.

ruptcy of a third person, and of his

forbearing to oppose such discharge,
27. In an action for personal injuries result. Held, That the schedules in bankruptcy
ing from collision with a train at a highway

not competent evidence, as against
crossing, the jury were instructed, un- plaintiff, to show the amount of the bank
qualifiedly, that it was for them to say, rupt's indebtedness. — Scouden et al. v.
upon all the evidence, whether defendant Markham, 183.

as

ery.-Id.

are

2. It is not error to admit an agreement and if he neglects to do so the endorser will

signed by defendant, recognizing the va. be discharged. --- Parker v. Stroud et al., 454.
lidity of the note two years after it was
given, and when it was about to mature.

10. An accommodation indorser is not
-Id.

simple surety.--Converse v. Cook, 462.
3. Proceedings in bankruptcy, when plain-

See CONTRACT, 3; GUARANTY, 1, 4; LIMI-
tiff was not present and in which he TATION, 7; PARTNERSHIP, 9; SURETY-
took no part, are immaterial to bind

SHIP, 8.
plaintiff.- 1a.

NEW TRIAL.
4. A promissory note payable on demand is See CRIMINAL LAW, 1, 2; PRACTICE, 12, 17,
due forthwith and an action thereon against

18.
the maker is barred by the statute unless
brought within six years from its date. -

NEW YORK CITY.
Dunning v. Powell, 187.

1. The Mayor, &c., of New York are not
5. In an action upon a promissory note proof

liable for personal injuries caused by a de-
may be given on the part of defendant of a fect in a highway in the 'annexed district,”
prior agreement between the maker and the duty of keeping in repair the highways
ibe payee providing for a mode in which

in said district having been imposed by the
the debt should be satisfied without the

legislature exclusively upon the Depart-
payment of money. Such proof does not

ment of Parks of said city without any con-
conflict with or contradict the notes, and

trol by the corporation.- Ehrgott v. The
the performance of such agreement by

Vuyor, dic., of N. Y., 292.
defendant constitutes a defence to the ac-
tion.— Nichol v. Nelson, 210.

2. Plaintiff's assignor held a contract with the

city which provided that lie should furnish
6. In an action on a promissory note evidence satisfactory evidence to the commissioner
of the plaintiff's poverty during the time it

that all persons who bad done work or
was running is relevant and material on the

furnished materials under the contract, who
question of payment. An error in reject-

had given notice that a balance was due
ing such evidence is not cured by rejectivg

them, had been fully paid or secured. R.
evidence_explaining plaintiff's delay.-

a material man, filed such notice, but in an
Bean v. Tonnele, 322.

action on the contract, to which he was a

party defendant, failed to show that the
7. A promise to accept sight drafts of which

materials were furnished under that con-
the promisor should be advised as having

tract and in reliance on its terms. Held,
been drawn against particularly to be de-

That R. was not entitled to recover the
scribed shipments of merchandise, to the

amount claimed by him.- Quinlan v. Rus-
extent of $50,000 currency, on account of

sell, 392.
subsequent reinittances to be sent within a
weck, is an unconditional promise to ac-

3. The Medical Superintendent of the New
cept sight drafts to that amount, and as

York City Asylum for the Insane, appoint-
such amounts to an actual acceptance of

ed by the Commissioners of Charities and
the same under the statute in favor of any

Corrections, is not an officer of the city cor.

poration, and does not come within the
person who, upon the faith of such prom-
ise, shall have received the draft for a valu-

provisions of Section 59 of the Consolida-
able consideration.—The Germania Nati

tion Act of 1882, prohibiting such an officer
Bunk v. Tuaks et al., 379.

from being interested in any work or

business the expense of which is payable
8. A contract to accept a draft upon the ful.

out of the city treasury.- Macdonald v. The
filment of certain conditions, and for that

Mayor, &c., of N. Y., 535.
not within the language of the 4. Said § 59 is not to be broadly construed,
statule, is nevertheless binding and enures because its effect is to restrict the exercise
to the benefit of any person afterward re. of private rights by restraining a class of
ceiving-for value and in good faith, and persons from becoming interested in the
in reliance upon such contract--a draft performance of contract work or business
drawn in compliance with the conditions in which, by general law, all persons may
imposed, and such person can enforce said

engage. Tid.
contract by action for his protection and in-
demnity.-1d.

See INJUNCTION, 1, 3 ; REMOVAL, 1.
9. When the holder of a promissory note

NUISANCE.
payable on demand demands payment
thereof of the maker personally, although 1. A court of equity has jurisdiction to re-
the note by its terms is payable at a certain move an unlawful obstruction in a public
bank, and payment thereof is refused, in street and award pecuniary damages at the
order to hold an endorser he must immedi- suit of a party injured and in an action by
ately present it at the bank named and the People. — The People v. The Metropolitan
notify the endorser of its non-payment, Telephone & Tel. Co.. 457.

reason

2. In an action to compel the removal of an 3. Plaintiff sued defendant, as owner of a

unlawful obstruction in a public street, vessel on which he shipped as seaman, for
which consisted of defendant's erecting damages for the wrongful act of the master
telegraph poles of larger size and higher in compelling him to do the work of a sea-
than the statute permited, and to recover man when unfitted therefor by injuries.
damages for such obstruction, the jury The answer set up the fact that ihere were
found a verdict for nominal damages. Peld, other owners. Held, That as a good cause
That in the absence of any special findings of action was stated, arising not out of the
the court could not award judgment direct- shipping contract, but from a breach of the
ing the removal of the poles, or any judg- dnty of the owners to plaintiff, through
ment other than for damages found by the their agent, the master, a demurrer to such
jury and costs.- Id.

answer was properly sustained. — Petersen

v. Suan, 491.
3. A complaint at the suit of the people which

alleges facts showing that certain telegraph See EJECTMENT, 4; EMINENT DOMAIN, 11 ;
poles erected by defendant had been im- INFANTS, 1, 2 ; INJUNCTION, 7; MECHANICS
properly erected in the street in the city of LIENS, 2 ; MORTGAGE, 12, 17; PRACTICE, 16.
New York and incommoded and interfered
with its use as a public highway states a

PARTITION.
cause of action for damages and also for
the abatement and removal of the poles 1. Under $ 1533 of the Code of Civ. Pro. an
constituting such obstruction.-Id.

action brought by a joint tenant, or a tenant

in common of a vested remainder, 10 par.
See RAILROADS, 15, 16.

tition real estate, subject to the interest of

the owner of the particular estate, can be
ODD FELLOWS.

maintained only when actual partition of

the property is possible; and when it ap.
1. Plaintiff became a member of a lodge of

pears that such partition cannot be made
Odd Fellows in 1849. A by-law then pro- ihe court has no jurisdiction except to pro-
vided that a sick member should receive

nounce judgment dismissing the complaint;
four dollars per week. The constitution

and the cousent of the owner of the partic-
and by-laws provided that a by-law might ular estate that the property be sold, and
be amended by a two-third vote. Plaintiff

to receive a gross sum out of the pro-
was taken sick in 1875 and remains so. In

ceeds of the sale of the property in lieu of
July, 1878, the by-law was amended so as to

such particular estate, does not enable the
give persons who had been sick more than

court to proceed and enter judgment of
a year one dollar a week after that period

sale.-Scheu v. Lehning et al, 261.
had expired. After July, 1879, plaintiff was
paid but one dollar a week. In an action 2. The value of an estate given in a will to
for the remaining three dollars per week, the widow of the testator for her life, pro-
Held. That plaintiff could not recover.- vided she remained his widow, with re-
Poultney v. Bachman, 126.

mainder to his children in the event of her

death or remarriage, but reserving to her
2. When a rule gives a member a right of her dower right in the latter event, can.
appeal he must prosecute that appeal to the

not be computed by the annuity tables.-
highest tribunal within the society in order

la.
to entitle himself to the right to bring an
action at law against the society.-Id. 3 In an action for the partition of real prop-

erty, where one of the parties is the un-
OFFICERS.

disputed owner or two thirds of the

property to be divided, while the title to
See CORPORATIONS, 20, 21 ; NEGLIGENCE, 23.

ihe remaining one-third is in dispute among

the other parties, the court, in the interloc-
PARTIES.

utory judgment, will order the sale of the

property in one parcel, and give directions
1. The question whether a person has been that one-third of the proceeds shall be

properly made a party to an action cannot brought into court to await the result of
be raised on a motion to strike out the al-

the controversy over its ownersbip, although
legations in the complaint referring to his if there had been no such controversy the
interest in such action.-Hagerty et al. v. property would lave been actually par-
Andreus et al., 140.

iitioned.- Fleming et al. v. Burnham et al.,

559.
2. The power given to a court to expunge

matter from a pleading on a motion for See APPEAL, 19; BAR, 7; Costs, 3; GUARD-
irrelevancy refers to such matter as is irrel.

IANS, 2; LUNATICS, 1.
evant to the cause of action or defense at.
tempied to be stated against the moving

PARTNERSHIP.
party, and does not enable a party to strike
out allegations relating to himscif because 1. A transfer by one partner to the other of
they are irrelevant to an alleged cause of his interest in the firm does not transfer the
action against some other party.-Id.

exclusive right to use a partnership trade-

Books

The N.Y. Weekly Digest of Cases Decided in the U.S. Supreme ..., Volume 18