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Defendant sold L. a machine upon an agree nothing on these points on this ment that it should remain the property of

trial. the vendor until full payment. L. sold the same to plaintiff. In an action by plaintiff

Judgment reversed, with costs. to recover the machine, which had been Opinion per curiam. retaken by defendant for non-payment of the price, plaintiff, who was a witness, gave no evidence that he was a purchaser with COMMON CARRIERS. NEG out notice and for value beyond produ

LIGENCE. 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

TERM. FOURTH DEPT. could not recover.

George W. Nicholas et al., Defendant sold and delivered to respts., v. The N. Y. C. & H. R. L. a planer, under a written agree- RR. Co., applt. ment that it should remain his property until full payment. After

Decided Oct., 1883. paying a part L. sold the machine if the circumstances, upon which a charge of to plaintiff and then gave him a negligence is based, are complicated or con. bill of sale, which stated that tradictory, and the general knowledge and

experience of men does not at once approve plaintiff had made full payment.

or condemn the conduct, a case is made for For default in payment defendant the jury. And where there is no dispute as had repossessed himself of the to the facts, the question of negligence is machine, and plaintiff brought usually one of fact for the jury, under this action of replevin as owner.

proper instructions. Beyond introducing the above bill Appeal from judgment on verof sale, defendant gave no evi- dict. dence that he paid value, nor did Plaintiffs shipped by defendhe give evidence that he was igno- ant's road a carload of fruit trees, rant of the rights of defendant to be carried from New York city when he purchased. Questions to Geneva, N. Y. The trees were directed to these points were ex- receiver by defendant March 4, cluded. Plaintiff succeeded. 1872, in good condition, and were

Finch & Rowe, for applt. injured by freezing during transA. IV. Boynton, for respt.

portation. Plaintiffs claim the Held, Without discussing the injury was caused by negligence difficult question of conditional in unnecessarily delaying the sales, we think there is error. Be- transportation. The defense is tween the defendant and L. de- that plaintiffs, in the contract of fendant would be entitled to the shipment, released defendant from property until the price had been its common law liability for injury paid. To give plaintiff any greater to the goods which might happen rights he should have shown him from the action of the elements ; self a purchaser in good faith and that such unusual delay as ocfor value. He was a witness and curred was caused by a violent failed to give any evidence on these and unusual storm of wind and points. The bill of sale proves snow; and that defendant discharged all its duty as a carrier. cuse from Manlius with the engine At the close of the evidence, de- then attached. When the confendant asked for a non-suit, ductor received orders from the which was denied. The contract Syracuse superintendent to leave of shipment did not require the his train at Manlius he failed to goods to be transported within notify the superintendent that any given time, or by any particu- this car was in his train, or that lar train. Trees of the same cha- the general superintendent had racter, and in similar packages, given the instructions aforesaid. slipped by plaintiffs on the same There is no evidence that any efday, by defendant's road, were fort was made to give the trees predelivered to plaintiffs three days ference over non-perishable freight, thereafter uninjured by frost. nor of the nature of the freight The train in which the car con: carried between Manlius and Getaining the trees in question was neva while this car was at Manplaced reached Manlius, a station lius. The court refused defendeight miles east of Syracuse, about ant's reqnest to charge “ that if noon, on March 6, and was there defendant's officers and agents placed on

a branch track and had reason to believe that by reathere remained until the 11th, son of the storm and blockade of when it was removed and deliv- the road the train containing the ered at Geneva on the 12th. At trees could not get into the yard the time of shipment defendant's at Syracuse, but would only add agents were informed of the per- to the confusion and increase the ishable character of the goods; blockade, it was not negligence to and for the information of other direct the branching of the cars at agents a card was posted on the Manlius until the road could be car, signed by the general freight cleared sufficiently to enable it to agent, stating that the property pass on west.” was perishable, and that the car W. H. Adams, for applt. must not be detained, and specifi

Arthur C. Smith, for respts. cally directing that if the car Held, No error. A case was should be disabled the property made for the jury. The fact that should be transferred to another instructions were given by the no. car, the card attached thereto, and tice on the car to defendant's own the same be hurried forward. On agents is pertinent upon the ques the 6th, a severe snow storm inter- tion of negligence. 76 N. Y., 305rupted, but did not wholly stop 314. Defendant ought to have the running of trains between given preference to the trees over Albany and Syracuse, and a large non-perishable freight. Defend. number of freight trains were col. ant assumed the risk of unneceslected at Syracuse, wholly occupy ary and unreasonable detention ing the freight-yards there. The as much as if plaintiff had execonductor testified that the train cuted no release. conld have been hauled into Syra- By its request to charge defend

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ant sought to make the question Plaintiff owned a horse which of its liability rest on a single was put in a shed by a mule owncircumstance, which was but one ed by defendant. The mule kickof many to be taken into consid- ed the horse and seriously injured eration, and the jury were so in- him. On the question of scienter structed.

a witness for plaintiff, one LanDefendant's point

point that the ham, testified that he knew the storm was the proximate cause of mule; had frequently fed him; had the injury, and the delay was only taken care of him for defendant the remote cause, and defendant off and on for eight years, and that is not liable, within the rule of he was vicious and would freRR. Co. v. Reeves, 10 Wall., 176; quently kick horses; that he was Deny v. RR. Co., 13 Gray, 481; employed by defendant as hostler Morrison v. Davis, 20 Pa., 171 ; and driver; that defendant owns Hoadley v. Trans. Co., 115 Mass., some three or four hundred mules. 304, is not well taken, for that doc- Plaintiff succeeded. trine was squarely repudiated for Esek Cowen, for applt. this state in Condict v. Gd. Trunk J. D. Hallen, for respt. R. Co., 54 N. Y., 500.

Held, Error. The knowledge of Judgment affirmed.

Lanham was not the knowledge of Opinion by Barker, J.; Har defendant. It must be shown that din, P. J. and Dwight, J., con- defendant knew the mule to be cur.

vicious. Lanham's duty was apparently to feed and take care of

defendant's teams when they came ANIMALS. MASTER AND

to the stable. There were three SERVANT.

or four hundred mules. There N. Y. SUPREME COURT. GENERAL

was no special duty imposed on TERM. THIRD DEPT.

the hostler with regard to this

mule. Plaintiff relies on Baldwin John Shaver, respt., v. The N. v. Casella, L. R., 7 Exch. 325. Y. & Lake Champlain Transp. Co., Then a dog was kept in a stable applt.

under control of a coachman and

it was held that his knowledge in Decided Nov., 1883.

regard to its

its viciousness was Knowledge upon the part of an hostler of the knowledge of the master. One of

viciousness of a mule is not notice thereof the judges put the decision on the to the master, especially where it appeared ground that the possibility of inthat the hostler's only duty was to care for jury arising from things likely to and feed such animals of the master as came to the stable, and that their number

be dangerous raises a duty on the was between three and four hundred. Ac- part of those who have them uncordingly, Held, That the master was not der their control to inform themliable for an injury done by a vicious mule

selves about them; that the dewhere the only notice of viciousness to be imputed to the master was such knowledge fendant had appointed the coachupon the part of its hostler.

man to the duty of having the dog

ant.

cur.

under bis inspection. However swer alleges that the policy was this

may be in the case of a dog issued upon Powers' application, we think the doctrine cannot ap. at defendant's request, and that ply here and that it cannot be said application contained a clause said that this hostler had any du- directing the policy to be made ty imposed upon him with regard payable to defendant as his interto this mule which should make est should appear; that such apbis knowledge notice to defend- plication was made under a prior

agreement between Powers and Judgment reversed, with costs. defendant that Powers, in con

Opinion by Learned, P. J.; sideration of the forbearance and Boardman and Potter, JJ., con- extension of time of payment of

a bond and mortgage held by de.

fendant against Powers, upon the FIRE INSURANCE. MISTAKE. premises wliere the buildings in

sured were located, agreed to keep EVIDENCE.

said buildings insured for defendN. Y. SUPREME COURT. GENERAL ant's benefit; that by mistake or TERM. FOURTH DEPT.

. neglect said clause making the

loss payable to defendant was Avery L. Smith et al., applts., omitted; that defendant was ignov. James Knapp, respt.

rant of the omission until after Decided June, 1883.

the loss, and supposed the loss

was made payable to him ; that he Proof of a claim of mutual mistake should

was so informed by the insurance be so clear as to leave no room for doubt. A statement in an application for insurance agent Ploss, and that he paid the which in no way affects the risk will not premiums to the company ; that annul an express provision in the policy it- when plaintiffs took an assignself. Where there is no mistake or fraud,

ment of the policy from Powers the policy will control.

they knew that defendant claimed Appeal from judgment on ref. said insurance. The answer prays eree's report.

that the policy be reformed by inThe parties are conflicting claim serting said clause so omitted, and ants of moneys paid into court by that defendant have judgment for a fire insurance company, under the sum due on the policy. The order of court, in discharge of the referee found the facts alleged in company's liability upon a policy the answer, and also that the issued to one Powers. The com- mortgage from Powers to defendplaint sets out the policy, the loss, ant was executed in 1870, and that and the assignment of the policy by reason of prior incumbrances to plaintiffs subsequent to the loss, it was insufficient security for the and avers that Knapp claims to debt; that in Marchı, 1877, Powrecover the amount due on the ers, in consideration of the extenpolicy, and denies the claim and sion of said debt, agreed to transthe ground thereof. Knapp's an- ' fer to defendant a policy of insurance which he then had on the tion as Powers would have stood buildings, and to keep them in- in bad he sued, and that defendsured for defendant's benefit, and ant is entitled to recover the mon that he delivered said policy to eys, with costs. Ploss testified defendant, and a clause was en- that about the time of the expira dorsed thereon by the agent of the tion of the first

tion of the first policy, Knapp company, making the loss, if any, having told him of his mortgage payable to defendant as his inter- and that he wanted to reinsure the est should appear, and that de buildings with loss payable to fendant held the same until it ex- him, witness saw Powers in his pired without objection from Pow field, and "I asked hiin if he did ers ; that said policy expired not want his insurance renewed. July 2, 1878, and about that As I remember it, he said he did time the

agent, Ploss, went not know hardly. He said he did: to Powers, at defendant's

not propose to insure any more qnest, to renew said policy, and for Knapp. I told him Knapp exPowers authorized Ploss to make acted it. He said he supposed he out and sign for him an applica- wonld have to have it done then. tion to said company for a policy I then commenced writing it up on said buildings; that Ploss and wrote the application there." thereupon made out and sent to the He further testified that he was authorized agents of the company not certain that the clause making an application for such insurance the loss, if any, payable to Knapp, which contained the clause above was written in Powers' presence referred to, which clause said last in the field, and that he did not mentioned agents omitted by mis know but it was. That clause was take in drawing the policy, and in pencil. Powers testified that that Powers consented that said Ploss showed no application in application and policy be made the field and did no writing there; with the loss payable to defend that after he refused to insure in ant. The referee held that, at the Knapp's interest they went to the time of the loss, defendant had an house to dinner, and there Powers equitable lien upon the money se remarked that he did not want as cured by the policy ; that the ap- much insurance as there was on plication being by the express the house and he wanted the perterms of the policy referred to and sonal changed, and thereupon made a part thereof the two must Ploss took out an application and be construed together as one in said he would fix the items. "Не strument; that it is not necessary began writing and said he supto reform the policy in order to posed he ought to insist on having entitle defendant to recover ; that it put in, loss payable to Knapp. Powers had made Ploss his agent I told him he need not insist and to fill up and sign said application need not fill it out, for I should and is bound by his acts; that not do it. He said I will fill it plaintiff's stand in the same posi. out and see that it suits you. He

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