the accident. It appeared, however, that the defendant at the time owned
from five to eight trucks, 1 bearing the same distinctive sign, and the evi-
dence was conflicting upon the question whether any of the defendant's trucks
were in the neighborhood of the street on which the accident occurred at the
time of the accident. The defendant made no effort to procure the attend-
ance, as witnesses, of the men who informed the defendant's secretary of
the occurrence of the accident, the secretary testifying that he had mislaid
the memorandum of their names.
Held, that, upon the evidence, the question of the defendant's ownership
and control of the truck which injured the plaintiff was for the jury.
ISENMAN. MILES & CO.....
Injury on a crosswalk on which a channel was worn under the
end of a flagstone where the foot of the injured person was caught. -con-
tributory negligence.] A stranger in a village, while walking slowly across
a street, in broad daylight, upon a flagged crosswalk, which, without
observing any defect therein, she had passed over for the first time a few
moments previously, behind two other persons with whom she was con-
versing, was thrown down as the result of catching her foot in a channel,
worn under the end of one of the flagstones, at a point where the space,
formerly occupied by a street railway, had been filled in with cobble
stones and blue stone refuse, and had, by the action of the elements, sunk
below the level of the remainder of the crosswalk.
In an action brought by her against the village to recover for injuries
thus sustained, it appeared that the defective condition of the crosswalk,
at the point of the accident, had existed for a period of six months, and that
other persons had tripped and fallen at this point. The plaintiff's compan-
ions testified that the defect was easily seen in passing over the walk.
Hell, that, under the circumstances, the jury were justified in conclud-
ing that the plaintiff was exercising a degree of care consistent with her
duties in the premises, and that she was free from contributory negligence.
CUMMINGS. VILLAGE OF NEW ROCHELLE.......
Exemplary damages in an action for personal injuries — in what
case they are not recoverable.] In an action to recover damages for personal
injuries sustained by the plaintiff, who, having boarded one of the defend-
ant's cars as a passenger, and before she had succeeded in taking a seat
therein, was, either by the sudden starting of the car, or in consequence of
the speed at which it was run around a curve, thrown to the floor of the
car and injured, exemplary damages are not recoverable, where it is shown
that the track upon which the car was run was constructed as directed by
the city authorities; that it was provided with the best appliances known at
that time; that the roadbed was in good condition; that it was necessary for
cars to go around the curve in question at the rate of speed at which this one
was propelled; that the car was provided with straps by which persons could
steady themselves as the car was rounding the curve, and that the conduc-
tor warned the passengers as they approached the curve by telling them to
"hold fast," there being no evidence that any of the officers of the defend-
ant either authorized or directed the conductor to start the car in the
manner that he did, or that they had knowledge prior to the accident of
his negligent act in that regard, or that the conductor or motorman, in start-
ing the car, desired or intended to injure the plaintiff in any way.
WIGTON . METROPOLITAN STREET R. Co..
8. Duty of a person, driving upon a highway, to one attempting to pass
him - when he is liable even though no collision takes place.] A person driving
a wagon along a public highway, who knows that the driver of a wagon
approaching from the rear desires to pass him, is bound to exercise reason-
able care to avoid injuring the driver overtaking him.
The gravamen of the complaint in an action to recover damages for
personal injuries was, that while the plaintiff, who was driving along a
highway, was endeavoring to pass the defendant, who was driving in
advance of him, the defendant, either negligently or willfully, drove his
horse in such a manner as to force the plaintiff's horse against the side of the
street and upset his wagon. The complaint alleged an actual collision
between the defendant's horse and wagon and the plaintiff's horse, and
that feature of the accident was referred to incidentally upon the trial; but
under the pleadings and the evidence the case did not necessarily turn upon
the question whether the collision occurred.
Held, that the plaintiff was entitled to recover if the accident was caused
by the negligence of the defendant in the management of his horse and
vehicle, even although the collision alleged in the complaint did not, in fact,
Occur. BRENNAN . RICHARDSON
9. Use of a freight elevator by an employee.] In an action brought to
recover damages for the death of the plaintiff's intestate, alleged to have been
caused by the negligence of the defendants, it appeared that the elevator of
the defendants in which the intestate, an employee of the defendants, was
riding with other workmen at the time of the accident, although intended for
material, was not, if properly used, dangerous for persons to ride in; that
the cause of the accident was the placing of planks across the elevator
shaft on the fourth floor, which planks were carried upwards with the
ascent of the elevator to the top of that story, thus impeding its progress
and producing a strain which caused the elevator to descend, and that it
was the jar and noise produced by the striking of the elevator against the
planks which gave the occupants just cause of alarm and induced them to
jump, with the result that the plaintiff's intestate in so doing was killed.
Held, that negligence on the part of the defendants' foreman could not be
predicated upon the circumstance that he stood by and allowed the deceased,
with other workmen, for their convenience, to ride up in the elevator instead
of insisting upon their ascending by ladders provided for workmen.
10. Collision between two street railroad cars — presumption of negli-
gence arising therefrom.] Where a street car passenger is injured in a col-
lision between a car in which he is riding and the car of another company,
which occurs at a point where the tracks of the two companies intersect
each other at right angles, and an action is brought against both the com-
panies to recover damages for the injuries thus sustained, a charge that the
mere happening of the accident raises a presumption of negligence upon the
part of each of the defendants, which it was incumbent upon them to rebut,
is erroneous as to the company in whose car the plaintiff was not riding.
A subsequent charge of the court that the mere fact that the car of the
latter company struck the blow did not establish negligence on the part of
that company, does not cure the error, where it appears that the court, in
addition to charging the erroneous proposition referred to, refused two
requests to charge embodying the correct rule.
FALKE V. THIRD AVENUE R. R. Co......
Tenant of an apartment house injured by falling through a flooring
of slats on a roof while hanging out clothes to dry when contributory negli
gence is not established.] A tenant of an apartment house who, with knowl-
edge that some of the slats constituting the flooring of the roof of the
building are rotten and that others are broken, goes upon the roof for the
purpose of drying clothes, and is injured in consequence of the breaking of
a slat upon which she stepped, is not, as matter of law, guilty of such
contributory negligence as will preclude a recovery by her in an action
brought against the landlord for the injuries thus sustained, where it may
be inferred from the evidence that no other place for drying clothes had
been provided by the landlord, and it appears that the tenant was acting with
prudence and circumspection at the time she was hurt, and that the slat
which gave way under her was not previously broken. KARLSON . HEALY. 486
Bicycle rider in a city street darting from behind one street car and
running into another approaching one.] An expert bicycle rider, familiar with
the streets of New York, who was riding a bicycle in that city behind a car
going down town, turned out from behind the car as it stopped before enter-
ing a curve, passed in front of it, and entered upon the other track where
he was killed by an approaching uptown car, which, when he darted from
behind the downtown car, was only twenty-five feet distant.
In an action brought to recover the damages resulting from his death it
Held, that, considering the interval of time between the intestate's appear-
ance and the collision, negligence could not be imputed to the defendant,
and that the facts tended to show affirmatively the existence of contributory
negligence on the part of the intestate, rather than its absence.
CARDONNER . METROPOLITAN STREET R. Co.
13. Exclamations of a party who ran down a bicycle rider, indicating
his hostility to bicycles, are competent.] In an action brought to recover dam-
ages resulting from the death of the plaintiff's intestate who, while riding a
bicyle, was killed in a collision with a wagon driven by the defendant, proof
that the defendant, shortly after his arrest, upon being asked whether he
knew the intestate's bicycle, replied, "Damn the bicyle," or, "Damn the
bicycle, any way; they are no good,” is admissible as tending to show a feel-
ing of hostility toward bicycles on the part of the defendant which increases
the probability that he had conducted himself with indifference to the rights
of the rider of such a vehicle, especially where the circumstances indicate
that the defendant willfully brought about the collision. QUINN ↑. PIETRO.. 484
14. Piling sand against a brick wall on an adjoining lot — liability for
breaking down the wall.] sublessee of a vacant lot, who piles sand to a
height of eighteen or twenty feet along a wall standing wholly upon adjoin-
ing land, with the result that the wall breaks down, is liable to the owner
of the wall for the damages thus sustained BARNES . MASTERSON......
15. One who piles part only of the sand is liable.] Semble, that the fact
that the sub-lessee only piled the sand against the wall to the height of three
feet, and then sold it, giving the vendee permission to use the lot for the
storage of sand, and that the subsequent piling of the sand was done by the
vendee, did not relieve the sub-lessee from liability, as it was the whole
pile of sand which destroyed the wall, to which the sub-lessee's act was a con-
tributing cause, which rendered him liable for the whole damage. Id.
16. Injury from flanges projecting from a tumbler in which castings are
placed.] A person who for ten years had been employed as a molder's laborer
in a foundry, and for eight or nine days in the milling room of the foundry,
where his duties consisted in placing castings in tumblers, from the sides of
which wedges, flanges and rivets projected (which projections were obvious),
assumes the risk incident to their existence, and in the event of his being
killed by being caught by the tumblers, his employer is not liable to his
administratrix for the damages resulting from his death.
CARLSON . MONITOR IRON WORKS..
Allegations in a negligence case which warrant proof of all the effects
of the injury. An allegation contained in a complaint in an action to recover
for personal injuries, that the accident resulted in severe injuries to the
plaintiff's person, from which he has not recovered, and will not recover,
and that by reason of the injuries he has been unable to follow his usual
occupation or do any work whatever, and that he has suffered great pain
and agony, is sufficient to warrant proof of all the effects of the injuries
which he received; and if the defendant desires a more specific allegation
it should move to have the complaint made more definite and certain or
for a bill of particulars. BOLTE . THIRD AVENUE R. R. Co....
Liability of a company for the discharge from
trust, upon the application of only one of two trustees -
are not negligent.
See COOPER 2. ILLINOIS CENTRAL R. R. Co..
NEGOTIABLE PAPER-Law relating to.
registry of bonds held in
when brokers selling them
NEW ROCHELLE - Negligence — injury on a crosswalk on which a chan-
nel was worn under the end of a flagstone where the foot of the injured person
was caught-contributory negligence.
See CUMMINGS v. VILLAGE OF NEW ROCHELLE,
583
NEW TRIAL - Condition requiring the payment of costs and the giving of a
bond, imposed by an order granting a new trial- if such tender be once declined it
does not precent the subsequent enforcement of the condition.] 1. Where a defend-
ant who, as a condition of granting a new trial, is required to pay to the
plaintiff costs and disbursements and to deliver to him an undertaking con-
ditioned for the payment of any judgment the plaintiff may thereafter recover,
offers, in compliance with the condition to pay such costs and disbursements,
and to deliver such undertaking, both of which the plaintiff declines to accept
on the ground that he proposes to appeal from the order granting the new
trial, which he afterwards does with the result that the order is affirmed by
the appellate court, the plaintiff, after such affirmance, is entitled to an order
vacating the order granting the new trial, unless the defendant complies with
its conditions as to the payment of costs and disbursements and the giving
of the undertaking. STOKES v. STOKES.
2. A tender of the costs and bond does not discharge the condition.] In
such a case the offer of the defendant to perform the condition of the order
granting a new trial does not satisfy and discharge the obligation imposed
upon him by it; nothing but the actual payment of the costs and the deliv-
ery of the undertaking is effective for that purpose.
3. Motion for a new trial on the ground of newly-discovered evidence,
when denied.] After a recovery by the plaintiff for the full amount claimed,
in an action for board alleged to have been furnished to the defendant's tes-
tatrix, based upon evidence tending to show that the testatrix had stayed
with the plaintiff during the whole time embraced in the latter's claim, with
the exception of a short period, a motion for a new trial made by the
defendant on the ground that he has, since the trial, discovered evidence
showing that the deceased was absent and boarded elsewhere for a consider-
able portion of the time mentioned, should not be granted, where it is apparent
from the nature of the testimony given in the case that the defendant was
aware of the occasional absence of his testatrix, and that ordinary care and
diligence in the preparation of the case for trial would have enabled him
to make the proof which he seeks to present upon a second trial.
REID . GAEDEKE
4.-+- Costs.] Full costs are allowed where such a motion is made upon
a case. Id.
Libel - a reference by counsel, in summing up, to a verdict rendered in
another case, held to require a new trial.
See BAGULLY. MORNING JOURNAL ASSN..
NEW YORK CITY New York city civil service- - a veteran employed in
Brooklyn at the time of the consolidation is not entitled to the same salary when
transferred to a position in the consolidated city.
See PEOPLE EX REL. SCHUMANN . COLER.
Registry of coupon bonds of Richmond Hill after its consolidation in the
Greater New York - New York city registered stock cannot be issued in place
thereof.
See MATTER OF WHANN
Contract for lighting the town of Jamaica it is void where it is to be
executed only after the consolidation of the town in the Greater New York.
See HENDRICKSON . CITY OF NEW YORK..
Municipal Court of New York city — chapter 378 of 1897 creating it is
See IRWIN . METROPOLITAN STREET R. Co.............
School teacher- remoral of, in New York city - it cannot be reviewed by
See PEOPLE EX REL. EVERITT . HUBBELL.
City marshals in New York city-their fees on collecting a personal tax.
See MANHATTAN RAILWAY Co. v. MERGES
NEW YORK STATE CONSTITUTION:
See CONSTITUTIONAL LAW.
NEWLY-DISCOVERED EVIDENCE:
See NEW TRIAL,
NON-JOINDER Of parties.
See PARTY.
NON-RESIDENCE:
See DOMICILE.
The offices of justice of the peace and town clerk cannot be held by
See PEOPLE EX REL. EARWICKER . DILLON..
ORAL EVIDENCE:
See EVIDENCE.
ORDINANCE - Of a municipality, construction, etc., of
See MUNICIPAL CORPORATION.
PAROL EVIDENCE:
See EVIDENCE.
Construction of a clause authorizing surviving partners
to purchase the assets.] 1. In an action brought by the executors of a deceased
partner to recover the decedent's interest in the partnership assets, an account-
ing was asked for to determine the amount due when the partnership was
terminated, and the profits subsequently realized by the defendants from
moneys unpaid since that time.
The answer set up the following partnership agreement: "If any of the
parties hereto shall die before the end of the term of copartnership hereby
created, or of any renewal term thereof, and the representatives of such
deceased partner should, at the end of such term, elect not to further continue
the copartnership business with the surviving partners, then in that event the
surviving partners shall have the right which is hereby granted them to
purchase all the right, title and interest of the deceased partner in the
partnership assets and good will of such business at a valuation shown by the
books of account of the partnership, making a deduction of twenty-five per
cent upon the valuation of the machinery as shown upon said books of
account," and that the defendants had elected to purchase pursuant thereto.
Held, that the words "at a valuation shown by the books of account of
the partnership" indicated that an estimated value, as between the partners,
shown upon the books, and not the market value of the assets, was to
govern in determining the price to be paid by the partners electing to pur-
chase thereunder; and that the only reasonable construction of the agreement
was that the books, as finally written in the ordinary course of business,
with all entries in them, following the method pursued during the lifetime
of the decedent and down to the termination of the partnership (the inven-
tory being made up in the same manner) should determine the question;
That if the executors of the decedent were not bound by this method of
determining the amount to be paid under the agreement, the surviving part-
ners would not be bound to purchase, and the affairs of the partnership
should be liquidated in the usual course. LOWENSTEIN . SCHIFFER.
An injunction to restrain the use of the firm name and trade marks
by a survicing partner.] In an action brought by the son of a deceased
partner and the legatee under his will of his interest in the good will of the
business, and in the firm name and trade marks belonging to the firm (in case
the son wished to continue the business), a preliminary injunction, restrain-
ing the use of the firm name and trade marks, will not be granted against
a surviving partner - although, under the articles of copartnership, he has
agreed that, if the copartnership should be dissolved, he (the surviving
partner) was to retire from the firm, and the other partner (the decedent)
was to have the sole and exclusive right, either alone or in conjunction
with other partners, to continue the business at the place where the same,
|