nothing on these points on this trial. Judgment reversed, with costs. Defendant sold L. a machine upon an agreement that it should remain the property of the vendor until full payment. L. sold the same to plaintiff. In an action by plaintiff to recover the machine, which had been retaken by defendant for non-payment of the price, plaintiff, who was a witness, gave no evidence that he was a purchaser without notice and for value beyond produ cing a bill of sale of the machine to him, signed by L., which stated that L. had N. Y. SUPREME COURT. GENERAL received full payment. Held, That plaintiff could not recover. Defendant sold and delivered to L. a planer, under a written agree ment that it should remain his property until full payment. After paying a part L. sold the machine to plaintiff and then gave him a bill of sale, which stated that plaintiff had made full payment. For default in payment defendant had repossessed himself of the machine, and plaintiff brought this action of replevin as owner. Beyond introducing the above bill of sale, defendant gave no evidence that he paid value, nor did he give evidence that he was ignorant of the rights of defendant when he purchased. Questions directed to these points were excluded. Plaintiff succeeded. Finch & Rowe, for applt. A. W. Boynton, for respt. Held, Without discussing the difficult question of conditional sales, we think there is error. Between the defendant and L. defendant would be entitled to the property until the price had been paid. To give plaintiff any greater rights he should have shown himself a purchaser in good faith and for value. He was a witness and failed to give any evidence on these points. The bill of sale proves COMMON CARRIERS. LIGENCE. NEG TERM. FOURTH DEPT. George W. Nicholas et al., RR. Co., applt. respts., v. The N. Y. C. & H. R. Decided Oct., 1883. If the circumstances, upon which a charge of negligence is based, are complicated or con tradictory, 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 negligence is usually one of fact for the jury, under proper instructions. Appeal from judgment on verdict. Plaintiffs shipped by defendant's road a carload of fruit trees. to be carried from New York city to Geneva, N. Y. The trees were received by defendant March 4, 1872, in good condition, and were injured by freezing during transportation. Plaintiffs claim the injury was caused by negligence in unnecessarily delaying the transportation. The defense is that plaintiffs, in the contract of shipment, released defendant from its common law liability for injury to the goods which might happen from the action of the elements; that such unusual delay as occurred was caused by a violent and unusual storm of wind and snow; and that defendant dis charged all its duty as a carrier. At the close of the evidence, defendant asked for a non-suit, which was denied. The contract of shipment did not require the goods to be transported within any given time, or by any particular train. Trees of the same character, and in similar packages, shipped by plaintiffs on the same day, by defendant's road, were delivered to plaintiffs three days thereafter uninjured by frost. The train in which the car con taining the trees in question was placed reached Manlius, a station eight miles east of Syracuse, about noon, on March 6, and was there placed on a branch track and there remained until the 11th, when it was removed and delivered at Geneva on the 12th. At the time of shipment defendant's agents were informed of the perishable character of the goods; and for the information of other agents a card was posted on the car, signed by the general freight agent, stating that the property was perishable, and that the car must not be detained, and specifically directing that if the car should be disabled the property should be transferred to another car, the card attached thereto, and the same be hurried forward. On the 6th, a severe snow storm interrupted, but did not wholly stop the running of trains between Albany and Syracuse, and a large number of freight trains were collected at Syracuse, wholly occupying the freight-yards there. The conductor testified that the train could have been hauled into Syra cuse from Manlius with the engine then attached. When the conductor received orders from the Syracuse superintendent to leave his train at Manlius he failed to notify the superintendent that this car was in his train, or that the general superintendent had given the instructions aforesaid. There is no evidence that any effort was made to give the trees preference over non-perishable freight, nor of the nature of the freight carried between Manlius and Geneva while this car was at Manlius. The court refused defendant's request to charge "that if defendant's officers and agents had reason to believe that by reason of the storm and blockade of the road the train containing the trees could not get into the yard at Syracuse, but would only add to the confusion and increase the blockade, it was not negligence to direct the branching of the cars at Manlius until the road could be cleared sufficiently to enable it to pass on west.” W. H. Adams, for applt. Held, No error. A case was made for the jury. The fact that instructions were given by the notice on the car to defendant's own agents is pertinent upon the ques tion of negligence. 76 N. Y., 305314. Defendant ought to have given preference to the trees over non-perishable freight. Defendant assumed the risk of unnecesary and unreasonable detention as much as if plaintiff had executed no release. By its request to charge defend ant sought to make the question of its liability rest on a single circumstance, which was but one of many to be taken into consideration, and the jury were so instructed. Defendant's point that the storm was the proximate cause of the injury, and the delay was only the remote cause, and defendant is not liable, within the rule of RR. Co. v. Reeves, 10 Wall., 176; Deny v. RR. Co., 13 Gray, 481; Morrison v. Davis, 20 Pa., 171; Hoadley v. Trans. Co., 115 Mass., 304, is not well taken, for that doctrine was squarely repudiated for this state in Condict v. Gd. Trunk R. Co., 54 N. Y., 500. Judgment affirmed. Opinion by Barker, J.; Hardin, P. J. and Dwight, J., con cur. ANIMALS. MASTER AND SERVANT. N. Y. SUPREME COURT. GENERAL John Shaver, respt., v. The N. Y. & Lake Champlain Transp. Co., applt. Decided Nov., 1883. Knowledge upon the part of an hostler of the viciousness of a mule is not notice thereof to the master, especially where it appeared that the hostler's only duty was to care for and feed such animals of the master as came to the stable, and that their number was between three and four hundred. Accordingly, Held, That the master was not liable for an injury done by a vicious mule where the only notice of viciousness to be Plaintiff owned a horse which was put in a shed by a mule owned by defendant. The mule kicked the horse and seriously injured him. On the question of scienter a witness for plaintiff, one Lanham, testified that he knew the mule; had frequently fed him; had taken care of him for defendant off and on for eight years, and that he was vicious and would frequently kick horses; that he was employed by defendant as hostler and driver; that defendant owns some three or four hundred mules. Plaintiff succeeded. Esek Cowen, for applt. Held, Error. The knowledge of Lanham was not the knowledge of defendant. It must be shown that defendant knew the mule to be vicious. Lanham's duty was ap parently to feed and take care of defendant's teams when they came to the stable. There were three or four hundred mules. There was no special duty imposed on the hostler with regard to this mule. Plaintiff relies on Baldwin v. Casella, L. R., 7 Exch. 325. Then a dog was kept in a stable under control of a coachman and it was held that his knowledge in regard to its viciousness was knowledge of the master. One of the judges put the decision on the ground that the possibility of injury arising from things likely to be dangerous raises a duty on the part of those who have them under their control to inform themselves about them; that the de imputed to the master was such knowledge fendant had appointed the coach upon the part of its hostler. man to the duty of having the dog under his inspection. However this may be in the case of a dog we think the doctrine cannot apply here and that it cannot be said that this hostler had any duty imposed upon him with regard to this mule which should make his knowledge notice to defend ant. Judgment reversed, with costs. Opinion by Learned, P. J.; Boardman and Potter, JJ.. con cur. swer alleges that the policy was issued upon Powers' application, at defendant's request, and that said application contained a clause directing the policy to be made payable to defendant as his interest should appear; that such application was made under a prior agreement between Powers and defendant that Powers, in consideration of the forbearance and extension of time of payment of a bond and mortgage held by defendant against Powers, upon the FIRE INSURANCE. MISTAKE. premises where the buildings in EVIDENCE. N. Y. SUPREME COURT. GENERAL sured were located, agreed to keep said buildings insured for defendant's benefit; that by mistake or neglect said clause making the loss payable to defendant was Avery L. Smith et al., applts., omitted; that defendant was ignov. James Knapp, respt. Decided June, 1883. Proof of a claim of mutual mistake should be so clear as to leave no room for doubt. A statement in an application for insurance which in no way affects the risk will not annul an express provision in the policy itself. Where there is no mistake or fraud, the policy will control. rant of the omission until after the loss, and supposed the loss was made payable to him; that he was so informed by the insurance agent Ploss, and that he paid the premiums to the company; that when plaintiffs took an assignment of the policy from Powers. they knew that defendant claimed. Appeal from judgment on ref said insurance. The answer prays eree's report. The parties are conflicting claimants of moneys paid into court by a fire insurance company, under order of court, in discharge of the company's liability upon a policy issued to one Powers. The complaint sets out the policy, the loss, and the assignment of the policy to plaintiffs subsequent to the loss, and avers that Knapp claims to recover the amount due on the policy, and denies the claim and the ground thereof. Knapp's an that the policy be reformed by inserting said clause so omitted, and that defendant have judgment for the sum due on the policy. The referee found the facts alleged in the answer, and also that the mortgage from Powers to defendant was executed in 1870, and that by reason of prior incumbrances it was insufficient security for the debt; that in March, 1877, Powers, in consideration of the extension of said debt, agreed to transfer to defendant a policy of insur re ance which he then had on the buildings, and to keep them insured for defendant's benefit, and that he delivered said policy to defendant, and a clause was endorsed thereon by the agent of the company, making the loss, if any, payable to defendant as his interest should appear, and that defendant held the same until it expired without objection from Powers; that said policy expired July 2, 1878, and about that time the agent, Ploss, went to Powers, at defendant's quest, to renew said policy, and Powers authorized Ploss to make out and sign for him an application to said company for a policy on said buildings; that Ploss thereupon made out and sent to the authorized agents of the company an application for such insurance which contained the clause above referred to, which clause said lastmentioned agents omitted by mistake in drawing the policy, and that Powers consented that said application and policy be made with the loss payable to defendant. The referee held that, at the time of the loss, defendant had an equitable lien upon the money secured by the policy; that the application being by the express terms of the policy referred to and made a part thereof the two must be construed together as one instrument; that it is not necessary to reform the policy in order to entitle defendant to recover; that Powers had made Ploss his agent to fill up and sign said application and is bound by his acts; that plaintiffs stand in the same posi tion as Powers would have stood in had he sued, and that defendant is entitled to recover the moneys, with costs. Ploss testified that about the time of the expiration of the first policy, Knapp having told him of his mortgage and that he wanted to reinsure the buildings with loss payable to him, witness saw Powers in his field, and "I asked him if he did not want his insurance renewed. As I remember it, he said he did. not know hardly. He said he did. not propose to insure any more for Knapp. I told him Knapp exacted it. He said he supposed he would have to have it done then. I then commenced writing it up and wrote the application there." He further testified that he was not certain that the clause making the loss, if any, payable to Knapp, was written in Powers' presence in the field, and that he did not know but it was. That clause was in pencil. Powers testified that Ploss showed no application in the field and did no writing there; that after he refused to insure in Knapp's interest they went to the house to dinner, and there Powers remarked that he did not want as much insurance as there was on the house and he wanted the personal changed, and thereupon Ploss took out an application and said he would fix the items. "He began writing and said he supposed he ought to insist on having it put in, loss payable to Knapp. I told him he need not insist and need not fill it out, for I should not do it. He said I will fill it out and see that it suits you. He |