the jury to find from it that the decedent was free from contributory
negligence. PEASLEE v. TOWN OF CHATHAM........
8. Injury received in crossing a railroad track-contributory negli
gence. In an action brought to recover damages for the death of a person
caused by reason of standing cars, between which he was crossing a railroad
track, being driven together by an approaching train, the evidence showed
that the train was backing slowly, and that the deceased could see the track
for a distance of from 200 to 300 feet, with but two box cars between him and
the train.
Held, that the evidence indicated contributory negligence on the part of
the deceased.
To justify the submission of such a case to the jury, it is not enough that
the evidence does not absolutely show contributory negligence on the part of
the deceased; it must establish his freedom from contributory negligence.
The omission of a railroad company to give statutory or other signals, or
to exercise proper care, does not excuse one crossing its tracks from observ-
ing proper care on his own part.
KRAUSS v. WALLKILL VALLEY R. R. Co...............
Railroad brakeman killed while uncoupling cars — unblocked frog —
questions for the jury.] On the trial of an action brought to recover from a
railroad company damages for the death of a brakeman while in its employ,
alleged to have been caused by his foot catching in an unblocked frog while
uncoupling cars, there was no positive evidence as to whether the cars were
in motion at the time.
Held, that the question as to whether the deceased attempted to uncouple
the cars while they were in motion was a matter to be submitted to the jury.
There was evidence that there was a block in the frog before the accident,
and that it had been removed apparently the day of the accident.
Held, that the questions whether the deceased's foot caught in the frog when
the block had been taken out, and whether it was negligence in the company
not to have the frog blocked or keep it blocked, it having been blocked, were
for the jury. MEEK . N. Y. C. & H. R. R. R. Co.....
Duty of a traveler approaching a railroad crossing.] The duty
which ordinarily rests upon a person approaching a railroad crossing, to both
look and listen before crossing the tracks, may be modified by circumstances
constituting an assurance of safety, such as the fact that gates maintained at
the crossing are open.
SCHULTZ . N. Y. C. & H. R. R. R. Co......
Open gates.] The fact, however, that a gate maintained by a rail-
road company at a crossing is open when a traveler is approaching the track,
does not relieve the traveler from taking proper precautions for his own
safety; it is still his duty to be on the lookout for danger, and to exercise the
same care that a man of ordinary prudence would exercise under the same
conditions. Id.
How evidence is to be construed, on review of a direction of a verdict for
the defendant-personal injury received in passing over a railroad crossing,
guarded by gates- contributory negligence.
See BOND v. N. Y. C. & H. R. R. R. Co.......
A railroad brakeman injured by timber loaded on a passing train coming
an accident impossible to be anticipated.
See KNOX v. N. Y., L. E. & W. R. R. Co......
Obstruction of the view of a railroad track by a signboard — negligence -
duty of looking along the track before crossing.
See AUSTIN v. LONG ISLAND R. R. Co....
competency of a switchman. non-existence of rules.
See BURKE . SYRACUSE, B. & N. Y. R. R. Co.....
Obstruction of a sidewalk by a storekeeper for the purpose of his busi-
liability for injury to a pedestrian.
Railroads negligence in moving a safety switch — fellow-servants ·
Master and servant · the place in which work is performed, made unsafe
by the act of the employer.
See STEPHENS v. HUDSON VALLEY KNITTING Co......
Defective highway — negligence of commissioner of highways — liability
of the town for damages.
See SMITH . TOWN OF CLARKSTOWN.
Master and servant-action for a personal injury — nominal dam-
not a ground of reversal where defendant was negligent.
Master and servant defective appliances in use in unloading a cargo—
liability of a steamship company.
See MCCAMPBELL 7. CUNARD STEAMSHIP CO..
Street railroads — negligently driving into an excavation.
See DAUB . YONKERS R. R. Co....
Risks incident to an employment — wires flying from a carpet loom.
See DALY . SMITH CARPET Co...
NEW TRIAL- Verdict directed by the court, after requests for a direction by
both parties -existence of a question of fact for the jury, not a ground for
granting a new trial.
See BANKER . KNIBLOE...
See TRIAL.
NEW YORK CITY 46
Inspector of regulating and grading streets" in
New York city—not a public officer.] 1. There is no such public office as that
of inspector of regulating and grading streets" in the city of New York,
and a person who holds such a position, at daily wages, is merely an
employee of the city, and is liable to removal as such.
2. Discharge of, from employment.] When the services of such an
employee are dispensed with by the officer who employed him, and who
has the power to continue or to cease to employ him, his right to pay ceases,
and it is immaterial that the notification that his services are dispensed with
states that he is "suspended." Id.
3. Application of chapter 119 of the Laws of 1888, in reference to
veteran soldiers and sailors.] Semble, that such an employee does not hold a
"position by appointment," and that his daily wages are not a "salary," and,
hence, that he does not come within the terms of chapter 119 of the Laws of
1888, which prohibit the removal of honorably discharged soldiers and sail-
ors holding a position by appointment in any city or county of this State,
receiving a salary," except for cause shown after a hearing had.
That even if such an employee was within the terms of said act of 1888, he
was not entitled to recover pay from the city while unemployed by it,
although he might have been wrongfully removed or suspended by the com-
missioner of public works. Id.
Grant of land under water by the city of New York — exception and reser-
ration of land within street boundaries · -pier erected by the grantee, on the
excepted land, under a resolution of the common council — right of the city to
maintain ejectment.
MAYOR, ETC., v. N. Y. C. & H. R. R. R. Co......
Consolidation Act, section 822— correction of personal taxes
cable to domestic corporations.
See PEOPLE EX REL. N. Y. HOTEL Co. v. BARKER..
Removal of principals of public schools in New York-section 1042 of
charter 410, Lairs of 1882.
See PEOPLE EX REL. FISK v. BD. OF EDUCATION..
NUISANCE-Action to enjoin a nuisance and to recover damages—an equity
action, entitled to be tried as such - acquiescence by a riparian owner in the
building of a dam below him equitable estoppel by silence and acquiescence and
settlement of boundary line.
OFFICER" Inspector of regulating and grading streets" in New York city
— not a public officer — discharge of, from employment — application of chapter
119 of the Laws of 1888, in reference to veteran soldiers and sailors.
See MEYERS v. MAYOR, ETC..
Of militia and army.
See ARMY.
Election of
See ELECTION.
OPINION—When admissible as evidence.
ORAL AGREEMENT:
See CONTRACT.
ORAL EVIDENCE:
See EVIDENCE.
ORDERS- For payment of money.
See BILLS AND NOTES.
PARENT AND CHILD — Right of action under the Civil Damage Act —
posthumous child.
PARTIES - Assignee of a second mortgage not made a party to the foreclosure
of a first mortgage-foreclosure of the second mortgage-provisions of the
decree-proof of the mortgage debt.
Life insurance for the benefit of a wife—the wife is not a necessary
party to an action to obtain a paid-up policy and an accounting as to accumu-
lations
insufficiency of the complaint.
See KERR v. UNION MUT. LIFE INS. Co...
Power of a State court to enjoin parties from proceeding in a Federal
See STEVENS v. CENTRAL NAT. BANK
- Injunction — undertaking — effect of bringing in new defendants.
See BERGMANN v. SALMON
PARTITION — Sale in partition — resale.] 1. On a sale in partition, the
property was struck off to one of the parties, who paid to the referee ten per
cent of his bid, but failed to complete the purchase; an order for a resale
was made, with a direction that the former purchaser pay any deficiency, but
this direction was stricken out by stipulation; the resale was thereafter had.
and it appeared that on the resale the referee either refused to receive a bid
from the former purchaser because of his default in completing the first sale,
or refused to allow the ten per cent received from such purchaser on the first
sale to be applied on the cash payment required on the resale, and struck off
the property to another party.
Held, that, on either state of facts, the second sale was not fair, and that
an order setting it aside and granting another resale was proper. FAY . FAY. 150
2. Vacation of a sale in partition — motion for judgment.] When a sale
in partition has been properly set aside, the denial of a motion to vacate and
overrule exceptions to the referee's report of such sale and for judgment
of confirmation, must, of necessity, be upheld. FAY . FAY.
PARTNERSHIP Partnership accounting — referee's report · -statement of
accounts.] 1. The referee's report in an action brought to obtain a partner-
ship accounting, should contain a plain, simple and intelligent statement of
the accounts between the parties, and show how the balance was struck or
arrived at.
Articles of copartnership provided that letters patent owned by the indi-
vidual partners should remain their individual property, but that the
copartnership should be entitled to the use of the improvements which
were the subject of such letters patent during the existence of the copart-
nership, upon assuming and meeting all the expenses and payments which
might be incurred in maintaining title to such patents.
Held, that one of the partners was not entitled to have allowed him moneys
paid by him for obtaining patents, and which were not expenses incurred in
maintaining letters patent.
In an action brought to obtain a dissolution of a firm and for an account-
ing it appeared that the articles of copartnership provided that the partners
should be entitled to draw certain stated salaries, to be charged as expenses of
the business before any division of profits, and that there should also be
paid before any division of profits, to one of the partners (the defendant)
as expenses of the partnership, three per centum of the gross receipts of the
business. A substantial part of the copartnership business was transferred
to a corporation, in the stock of which both partners were interested; they
agreed that their stock should be voted as a unit, and the defendant agreed
that if he should be elected president of such corporation at a certain salary
the plaintiff should be released from all liability by reason of the provision of
the copartnership articles giving the defendant three per cent on the gross
sales of the firm.
Held, that this agreement was a recognition of the continued existence of
the copartnership, and of the rights of the parties thereunder, including the
right to draw the fixed salaries stated in the articles, until the dissolution
of the copartnership. HAGENBUCHLE . SCHULTZ.
... 183
2. Extra allowance.] For the purposes of granting an extra allowance
in an action for a partnership accounting, the amount for which judgment is
obtained is to be deemed the amount involved. Id.
Complaint against a firm covering a period in which the membership
changed · misjoinder of causes of action.] A complaint, to recover for goods
sold to a firm during a period in which the complaint states that the firm
name remained the same but the membership changed, which names as a
defendant a person who it shows was a member of the firm during a part
only of the period in suit, without stating that he agreed to pay the debts of
the firm for the portion of the period covered by the complaint when he was not
a member, is demurrable on the ground of a misjoinder of causes of action,
in that all of the causes of action set forth in the complaint do not exist against
all of the defendants. BENTON. WINNER
Agreement for the assignment of a patent and the formation of a copartner-
ship-dissolution of the partnership-accounting — equitable rights enforced —
contract unlawfully destroyed by one of the partners-
3-a new contract made by
him personally inures to the partnership.
Sale by executors to themselves—presumption of invalidity overcome by
acquiescence and laches.
Precedence among judgment creditors — dormant partner.
See KINGS COUNTY BANK v. COURTNEY...
![[ocr errors]](https://books.google.co.id/books/content?id=9o0EAAAAYAAJ&hl=id&output=html_text&pg=PA673&img=1&zoom=3&q=editions:LCCN2002485403&cds=1&sig=ACfU3U2igFxnA7GtpRRqS64GJP5YpXZ-lw&edge=0&edge=stretch&ci=765,750,10,7)
PATENT - Payment of a royalty for the use of a patent- - an agreement made
with a patentee who has assigned the patent inures to the owner of the patent.]
When one uses a patent, under an agreement made with the patentee to pay
for the use thereof certain sums, mentioned in a portion of the correspond-
ence constituting the agreement as "royalties" and "commissions,' but
which terms are, it appears, used synonymously, so that the agreement is in
fact an entire contract for the payment of royalties, and such agreement is
made under the mutual-mistaken assumption that the patentee is entitled to
enter into the agreement on his own account, whereas it appears that the
right to royalties belonged at the time to a third party, to whom the patent
had been assigned by the patentee, the contract for the payment of the royal-
ties for the use of the patent inures to the owner of the patent, and he, and
not the patentee, will be entitled to receive from the user of the patent the
whole sum agreed to be paid for its use.
MANN CAR Co. v. GILBERT CAR Co.....
Agreement for the assignment of a patent and the formation of a
copartnership—dissolution of the partnership — accounting — equitable rights
enforced — contract unlawfully destroyed by one of the partners — a new contract
made by him personally inures to the partnership.
Injunction pendente lite — balance of inconvenience — sale of an improve-
ment in a patent, produced under contract with the plaintiff, restrained.
See CORNWALL v. SACHS ..
PAYMENT - - Application of payments-effect of a receipt stating the appli-
cation of a portion of the money received.] In an action brought by an admin-
istratrix to recover upon a promissory note made by the defendant to the
plaintiff's intestate, it appeared from the books of the deceased that he had
received from the defendant, after the making of the note, certain sums,
which, if applied on the note, would have extinguished it; that a portion of
the last money received was applied on the note, and the deceased gave the
defendant a receipt stating that such portion had been indorsed on the
note; it also appeared that there were other transactions between the parties,
upon which the payments by the defendant could have been applied.
Held, that this tended to prove that after all the payments in question
were made, the parties recognized the note as unpaid and applied on it a por-
|