Digest. brought by the latter to recover it as money paid to his use (Merritt agt. Millard, 10 Bosw. 309). 3. A mere agency of such defendant in making the original agreement, does not affect his liability. It is not his mere ignorance of such illegality, but the absence of any legal connection between the new promise of the defendant to deliver such money as directed, and the original contract, which precludes him from setting up such a defence (Id). 4. A principal is not necessarily to be deemed to have ratified a wrongful act of his agent so as to exempt the agent from liability to him, merely because he does not notify to the agent his dissent at the earliest possible opportunity after being informed of the wrongful act (Clark agt. Meigs, 10 Bosw. 337). 5. Where an agent has thus violated his instructions and duty, and made himself liable to an action for damages, nothing but payment of the damages, an accord and satisfaction, or a release, is a bar to an action. His offer to replace the stock so long as it is unaccepted, affects neither the principal's right to recover, nor the measure of damages (Per BosWORTH Ch. J.) (Id). 6. A debtor cannot have the benefit of a compromise and release effected by his agent, with his creditors, without adopting all the representations made by the agent, to the creditors, in negotiating the same. The release will be no better in his hands than if he had personally obtained it and made the same representations to the creditors to procure it, that his agent made to them (Crans agt. Hunter, 28 N. Y. R. 389). 7. A joint action will lie against principal and agent for a personal injury caused by the negligence of the latter (in the absence of the former) in the course of his employment (Phelps agt. Wait, 30 N. Y. R. 78). 8. Where an agent of a firm authorised to draw its moneys from the bank and apply the same to the uses of the firm, continues to do so after the death of one of the members thereof, without knowledge on his part or on the part of the bank, of such death, he acts within the scope of his authority, and his acts bind the firm (Bank of New York agt. Vanderhorst, 32 N. Y. R. 553). 9. The authority of such agent to draw out and apply the money of such firm See INSURANCE, 4, 5. See DEED, 3, 4, 5. See STATUTE OF LIMITATIONS, 8, 9, 10. See CORPORATIONS, 16. PRINCIPAL AND SURETY. 1. Where a surety enters into a recognizance for the appearance at court of a principal to answer an indictment, and subsequently the principal voluntarily enlists as a soldier in the army of the United States, where he is detained by military authority when the recognizance is called and forfeited, the surety is not liable upon his recognizance (People agt. Cook, ante 110). 2. It is a general principle of equity that a surety, or a party who stands in the relation of a surety, is entitled to be subrogated to all the rights and remedies of the creditor against the principal whose debt he has been compelled to pay. And where a person standing in the situation of a surety for the payment of a debt receives a collateral security for such payment, for his indemnity, the principal creditor is in equity entitled to the benefit of such collateral security; although he did not originally rely upon the credit of such collateral security, or know of its existence, in the first instance (Higgins agt. Wright, 43 Barb. 461). 3. An accommodation maker of a promissory note, for whose benefit, in part, the note was given, cannot claim an equitable right to a security which has been pledged to the person occupying the position of a second indorser, for his special indemnity, after such second indorser has been absolutely discharged from liability. In order to avail himself of the benefit of such security, it is essential that the maker of the note should have paid the debt for which he was liable (Id). 4. If he fails to pay the debt, and the second indorser has been discharged from liability, the security pledged to Digest. the latter by the first indorser, for his indemnity, will rebut back to and become the property of the first indorser, and a subsequent assignment thereof by the second indorser, to the maker, will convey no title (Id). 5. It is a well settled principle that a surety who pays a debt for his principal is entitled to be put in the place of the creditor, and to all the means which the creditor possessed to enforce payment against the principal debtor (Lewis agt. Palmer, 28 N. Y. R. 271). See BONDS, 1. See PAYMENT. See DEBTOR AND CREDITOR, 6. PROMISSORY NOTES, 19. See VESSELS, 19, 20, 21, 22, 23. PROCESS. cers, by the canal board, to continue during the then ensuing season of navigation. Accordingly held, that the canal board had power, on the 9th of June, 1859, to appoint an assistant collector of canal tolls; and that it was the duty of the auditor to draw a warrant for his salary during the time he held the office, viz: until the close of navigation of that year (The People agt. Benton, 29 N. Y. R. 534). 2. The payment by the comptroller of the city of New York of the salary of a deputy tax commissioner de facto in office under the appointment of the tax commissioners also de facto in office by the appointment of the comptroller, is no defence to the comptroller to the payment of the salary of a deputy tax commissioner for the same time who claims de jure to the office, by reason of the unlawful appointment of the de facto commissioners by the comptroller (INGRAHAM, J. dissenting.) (People agt. Brennan, ante 417). 1. Where process has been set aside for irregularity, it will afford no justification to the party at whose instance it was issued, for acts done under it. A process being void, the party who sets it in motion, and all persons aiding and assisting him, are prima facie trespassers, for seizing property 1. under it. Acts which an officer might justify under process actually void, but regular and apparently valid on its face, will be trespassers as against the party (Kerr agt.Mount, 28 N. Y. R. 659). 2. The moment process is set aside for irregularity, the party becomes a trespasser ab initio; and the return of the property will only go in mitigation of damages. It is no answer in bar of an action for the wrong (Id). 3. The officer, in such a case, is the agent or servant of the party in whose favor the process is issued, and the party is liable for any injury to the goods, caused by his negligent or careless acts while such goods are in his possession (Id). PUBLIC OFFICERS. 1. It was the intention of the legislature, by the act of April 19, 1859, relating to the duties of the canal board, &c., prospectively to abolish the office of assistant collector of tolls, but at the same time to allow the practice of appointing those offi 2. See CHAMBERLAIN OF THE CITY OF NEW YORK. RAILROADS. By an act of the legislature in 1826, the title to all lands four hundred feet east of low water mark on the shore of the East river was vested in the mayor, aldermen and commonalty of the city of New York (Dry Dock R. R. Co. agt. N. Y. & Har. R. R. Co. ante 39). The city of New York had a right under the act of 1826, to convey any of the lands embraced within its provisions. And having in 1847, conveyed certain lands under water east of First avenue, except a space of one hundred feet in width eastward of First avenue, and in continuation of Thirtyfourth street, to the Farmers' Loan and Trust Company, with covenants by the grantees, their successors and assigns, to fill up the same, and erect and make a good and sufficient wharf, avenue or street, one hundred feet in width, from First avenue to Avenue A, and keep in good order said street, wharf and avenue, which should thereafter continue to be a public street of the city; and the Farmers' Loan and Trust Company having conveyed said premises, subject to the some provisions and conditions, to The East River Ferry Company and James Digest. M. Waterbury, who are engaged in filling in the land owned by them, including said continuation of Thirtyfourth street, one hundred feet wido to Avenue A, in pursuance of the provisions of the original grant from the corporation (Id). 3. Held, that upon the completion of the work, and when the land was filled in, graded, regulated and paved, for the purposes of a public street, it was the intention of the city, who made the conveyance, to dedicate it as one of the public streets of the city. But it was no part of the contract that it should be thus appropriated while the work was in progress, and during that period the title to the property remained in the corporation, while the right to its possession and control, and its use for the purposes intended, was in the grantees who had contracted to perform the work, until its completion, its adaptation to the public use, and some act done evincing the entire fulfillment of the contract, and discharging the parties who had agreed to perform the work, and from the obligations imposed upon them: Therefore, until the fulfillment of such contract, and the finishing of the street, no railroad company had any right to enter upon the premises and disturb the possession of the grantees. Upon their doing so, a remedy existed by injunction (Id). 4. The New York and Harlem Railroad Company was chartered in 1831, to build a railroad from the city of New York to the Harlem river. In 1832, they were authorised by the legislature to extend their railroad through certain other streets in the city of New York, as the mayor, aldermen and commonalty of said city would from time to time permit. In 1840, they were authorised to construct a branch from their railroad to the East river, to suoh point as might be designated and permitted by the corporation of the city of New York. In March, 1864, the corporation selected a point on the East river to which the said railroad might be constructed, and gave the requisite permission to extend their road through Thirty-fourth street to the East river (Id). 5. Held, that the act of 1849 must be considered in connection with the permission granted by the corporation in 1864; and as the privileges granted were bestowed prior to the act of 1860, under which the Dry Dock, East Broadway and Battery Railroad Company claim to act, the New York and Harlem Railroad Company have precedence in using the space in continuation of Thirty-fourth street when completed (Id). 6. The grant to the Dry Dock, East Broadway and Battery Railroad Company in 1860, through Thirty-fourth street to Avenue A, &c., refers to points which are not recognized upon the map and plan of the city of New York, which has hitherto been considered as a correct and accurate presentation of streets and avenues. Avenue A, referred to in their charter, is on the East river, beyond the ferry house of the East River Ferry Company, and was and is entirely under water. In law the designation made had no legal existence at the time the act was passed, nor has it since been recognised by the constituted authorities of the city of New York (Id). 7. The extension of a railroad in the city of New York cannot be authorised by the common council, irrespective of any legislative grant, except perhaps where it may be necessary to the enjoyment of the principal legal grant (People agt. Third Av. R. R. Co., ante 121). 8. Courts never decide what is or is not abstract negligence. Whether a want of care is imputable to a person, must always, in all cases, depend upon facts, which in each case essentially determine the question. In getting at some general rule, as far as may be, of what would be negligence or want of proper care, neither of the extremes can be adopted, but a medium of the two extremes-as a want of common, ordinary care or prudence. The right to travel upon a street or highway is common to all. They do not belong exclusively to drivers of vehicles. Foot passengers have the right to walk upon them; and except for the greater difficulty of guiding and arresting the progress of vehicles, it is, as a matter of law, as much the duty of the vehicles to keep out of the way of the foot passengers, as it is for the latter to escape being run over by the former (Baxter agt. Second Av. R. R. Co., ante 219). 9. So long as there is no interference with the public right of passage upon streets and highways in cities and villages, railroads thereon are lawful structures. But if operated upon the theory of exclusive right to their track, they become usurpers and wrong Digest. they can be made liable for a personal injury sustained by an individual (Wilks agt. The H. R. R. R. Co. 29 N. Y. R. 315). Where W. drove his horses upon a railroad where it crossed a street, without giving any heed to the signals made, or to the track, until he came very near it, and then, seeing a train approaching, he attempted to cross the track in front of the engine, whipping his horses for that purpose, which became restive and uncontrolable, and a collision ensued, by which W. was killed: Held, that no action would lie by his administratrix against the railroad company (Id). doers. In an over-crowded city like 11. Where a passenger upon a railroad, 15. An implied agreement between railroad company and an owner of merchandise transported by such company, as common carriers upon the road, for a per diem compensation for the use of their cars, during any delay by such owner in removing such merchandise after its arrival, does not give the company a lien upon the merchandise for such compensation during the time it may remain upon their cars in a public highway (Commelin agt. N. Y. & H. R. R. Co. 10 Bosw. 77). 16. Common carriers, in whose possession goods, transported by them, are left remaining in their vehicles, by the delay of the consignee to receive them do not acquire, under such an implied agreement, a lien upon the goods for such compensation (Id). 17. S. subscribed for $500 of stock in a railroad company, upon the understanding that the first ten per cent required by law to paid in cash on subscribing, should be paid by his services in procuring subscriptions and right of way. He subsequently presented an account against the company for services, from which it appeared that at the date of the subscription the company was indebted to him in an amount greater than the cash payment required, in which account he applied and credited fifty dollars for ten per cent upon his subscription, and fifty dollars for the first call made thereon. The account was allowed by the company and the balance paid to S. Held, that this was a sufficient compliance with the statute, in respect to the payment of the first ten per cent, and made the subscription obligatory upon S. (Beach agt. Smith, 30 N, Y. R. 116). Digest. 18. Where the plaintiff, a passenger upon a city railroad car, indicated his wish to alight at the place where the car was then stopping, by requesting the driver to keep on the brake, who replied "yes sir," but instead of suffering the car to remain stationary until the plaintiff should alight, he turned the brake and set the car in motion, thereby precipitating the plaintiff (who was in the act of alighting) from the car into the street, thereby causing an injury: Held, that if the jury believed the evidence, they were justified in finding the driver guilty of negligence; and that it was not the province of the court to discredit it and nonsuit the plaintiff (Mulhado agt. Brooklyn City R. R. Co., 30 N. Y. R. 370). 19. Held, also, that the plaintiff was not chargeable with any fault in that he did not prefer the request to the conductor, to stop the cars, instead of to the driver. Held, further, that there was no fault in the attempt of the plaintiff to get off the front platform, instead of the rear one; he having got on at the front platform without objection; and it not appearing that any notice was given to passengers that they must not get off at the front platform (Id). 20. Under chapter 228 of the laws of 1857, which provides that the New! York Central Railroad Company, at every station on its road where a ticket office, shall keep the same open for the sale of tickets at least one hour prior to the departure of each passenger train from such station, but that they shall not be required to keep such offices open between nine P. M. and five A. M., except at Utica. and six other stations on its road; and that if any person shall, at any station where a ticket office is established and open, enter the cars as a passenger without first having purchased a ticket, it shall be lawful for the company to demand and receive from him a sum not exceeding five cents, in addition to the usual rate of fare; the extra fare can only be demanded when the passenger fails to purchase his ticket at an established ticket office that is open. If the ticket office is not open, no ticket can be procured, and no right exists to demand the extra fare (Nellis agt. New York Central R. R. Co., 30 N. Y. R. 505). 21. A common carrier, to exempt himself from liability for injuries hap pening to goods while he is engaged in transporting them for hire, must show that he was free from fault at the time the injury or damage occurred, and that no act or neglect of his concurred in or contributed to the injury. If he has departed from the line of duty, and has violated his contract, and, while thus in fault, and in consequence of that fault, the goods are injured, by an act of God, which would not otherwise have produced the injury, then the carrier is not protected (Michaels agt. New York Central R. R. Co., 30 N. Y. R. 564). 22. When goods are delivered to a railroad company, by a connecting railroad company, to be transported to the owners, and the same are received by such company for that purpose, it becomes its duty to send them off, immediately; and it cannot justify the detention of the goods on the ground that, by its regulations, goods received from a connecting road are not to be forwarded until the receipt of a bill of back charges, and that no such bill accompanied the goods (Id). 23. The duty which a railroad company, in the management of its trains, owes to a shipper of freight while lading the same, is the exercise of that ordinary care which every man owes to his neighbor, to do him no injury by negligence, while both are engaged in lawful pursuits (Stimson agt. New York Central R. R. Co., 32 N. Y. R. 333). 24. 25. In an action against a railroad corporation for damages occasioned by a fire apparently originating from coals on the track of the road over which the defendants' locomotives had been passing just previously to the fire it is competent to prove that its locomotives, in passing over said road, have on former occasions dropped coals at or near such place (Field agt. New York Central R. R., 32 N. Y. R. 339). Where it is in evidence that engines properly constructed and in good order will not drop coals upon the track, the dropping of coals from defendants' engines upon the track, is, of itself, evidence of negligence sufficient to charge the defendants. Under such circumstances, the burden of proof is upon the defendants to show that they were not guilty of negligence (ld). 26. For a railroad company to make |