ing to charge the defendant with negligence in starting the train while the
plaintiff was in a position of danger and before he could extricate himself
from peril," to charge "I will leave that for the jury to say." Id.
10. Injury from a broken flagstone in a city sidewalk.] Where a pedes-
trian in stepping from a crosswalk to the sidewalk in a city trips and falls
over a broken flagstone, a piece of which nearest the gutter had been removed
so as to leave a depression six by four inches in surface dimension, and about
two inches deep, and it appears that such defective condition had existed for
a length of time sufficient to justify the inference that the city had notice of
it, and to call for repair to the sidewalk before the accident took place, and
it also appears that prior to the time that this accident occurred other people
had fallen into the hole or tripped over the defective walk, and that at the
time of the accident the place where the person fell was so dark, the neigh-
boring street lamp not being lit, that after falling it was with difficulty that
he found his hat, a case of liability on the part of the city is established.
BREWER v. CITY OF NEW YORK...
11. Evidence as to the subsequent condition of the sidewalk.] The errone-
ous admission of evidence by which the plaintiff showed the condition of the
sidewalk after the accident by the testimony of a witness who saw it two
years thereafter, considered not to justify the granting of a new trial where
there was no dispute but that the condition of the sidewalk was the same at
the expiration of such two years as at the time of the accident, or as to the
extent and character of the defect. Id.
12. A street car colliding with a truck, which had been driven on its
track, the street being incumbered with snow — - relative duties of each party.]
In an action to recover damages sustained by the plaintiff by reason of a col-
lision between a truck which he was driving and one of the defendant's
street cars, it appeared that the street being somewhat incumbered by snow
which the defendant had removed from its tracks, the plaintiff, who desired
to drive around a coal cart in front of him, turned into the track of the
defendant's road, before doing which, however, he looked ahead and saw a
car, some two blocks away, approaching at a rapid rate, and that, as he was
turning his team in front of the coal cart, his truck came into collision with
the car.
Held, that both the plaintiff and defendant were bound to exercise that
degree of care which a person of ordinary experience and prudence should
have exercised to avoid the collision;'
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That the court properly charged the jury that “the same degree of care
must be exercised by one as by the other."
SEAGRIFF. BROOKLYN HEIGHTS R. R. Co....
13. Liability of an owner of a building, in course of construction by
independent contractors, for the death of a person who, while upon an incom-
pleted elevator, was killed by a tool falling down the shaft.] An owner of a
building in process of construction by an independent contractor who,
although he has begun making leases of portions of the building, has not
accepted the building from the contractor, nor offered it to the public for
use, is not liable for the death of an employee of a party who has entered
into a contract with a tenant of the building to furnish the tenant's rooms,
where the employee, while using, with the consent of the agent of the
owner, an incompleted elevator in the building to transport material, is killed
by the fall of a tool in use by employees of independent contractors at work
in the elevator shaft, it appearing that the incomplete condition of the
building and of the elevator, and the fact that the elevator cage had no
guard to prevent tools from falling down the shaft upon persons inside of
the well, was patent and visible to the deceased and his immediate employer.
JEHLE v. ELLICOTT SQUARE CO.....
14. Reciprocal rights of drivers of vehicles and of cable cars.] The rights
of drivers of vehicles and those of cable cars are reciprocal, and a grip-
man of a cable car is bound to use as much diligence to avoid running into a
vehicle which is crossing its track as the driver of a vehicle is to avoid run-
ning into a cable car which is crossing its path.
KENNEDY. THIRD AVENUE R. R. Co....
Collision of a cable car with a wagon — what evidence requires a
submission of the case to the jury.] Where, in an action brought to recover
damages for personal injuries occasioned to the driver of a wagon through
its collision with a cable car operated by the defendant, it appears that the
gripman on the car had enough time to stop it from five to fifteen feet from
the wagon, after he had seen the plaintiff attempting to cross the track and
before the car collided with the wagon, instead of doing which he did not
attempt to stop the car until he saw that a collision was inevitable, and
did not accomplish it until the car had proceeded at least three feet after
striking the wagon, a case is presented as to the defendant's negligence
which should be submitted to the jury. Id.
16. Action for injuries from a kick by a horse owned by a city — proof of
scienter on the part of the city.] In an action brought against the city of New
York, by the driver of an ash cart belonging to the city street cleaning
department, to recover damages sustained by reason of his having been kicked
by a horse attached to such cart, the plaintiff must prove that, prior to the
injuries complained of, the city had notice of the vicious character of the
animal.
Semble, that a horse which shows no vicious disposition, except when
annoyed or struck by those having it in charge, is not vicious.
Notice of intention to sue alleged and not denied.] Where the com-
plaint in such an action alleges that on a day stated, "and within six months
after the accruing of the cause of action herein, the plaintiff filed notice of
intention to sue thereon, giving the time and place at which the injuries
were received, upon the counsel to the corporation of the said city of New
York," and such allegation is not denied by the answer, the defendant is not
in a position on the trial to challenge the sufficiency of the notice filed with
the corporation counsel. Id.
18. A truckman injured by stepping backwards into an elevator shaft
contributory negligence.] A truckman, who had just delivered a case of goods
at an elevator shaft opening upon a platform over the sidewalk in front of a
factory, attempted to unload a heavy machine which was to be carried up
by the elevator, and in putting a skid in place backed along the platform
towards the elevator door without looking to see whether the elevator door
was open or shut - although he knew that the case of goods which he had
already unloaded could not be taken up at the same time with the machine,
and that the elevator would have to ascend and descend before he could put
the machine upon it-and, the door being open, fell into the elevator pit
some fifteen or twenty feet deep.
In an action brought to recover for injuries thus sustained, it was
Held, that the plaintiff was guilty of contributory negligence, and could
not recover. MAXWELL V. THOMAS..
19. Hole in the planking of a city sidewalk — when the question of the
city's negligence is for the jury.] In an action against a municipal corporation
to recover damages for injuries sustained by the plaintiff in stepping,
about ten o'clock on a dark night, into a hole in a plank sidewalk of the
defendant, a municipal corporation, the evidence tended to show that the
hole in the planking was from eighteen inches to two feet long, five or six
inches wide and about four inches deep, and had existed for between six
weeks and two months.
Held, that the question whether the defendant was guilty of negligence in
omitting to repair, or cause to be repaired, the sidewalk where the plaintiff
received his injuries, was one of fact which should have been submitted to
the jury.
O'BRIEN v. CITY OF SYRACUSE .....
20. An accident resulting in personal injury and damage to the injured
person's property creates but a single cause of action.] An injury done to
the person of one driving in a carriage by reason of its coming into contact
with a pile of sand negligently left unguarded in the roadway, and the
damage resulting therefrom to his carriage constitute but a single cause
of action, although entitling him to different items of damage.
REILLY. SICILIAN ASPHALT PAVING Co.............
21. Effect of a recovery on account of the injury to property.] Where,
in such a case, the party injured has recovered judgment for the damage
done to his carriage, and has received satisfaction therefor, his right of
action for the injury done to his person is also extinguished. Id.
22. A verdict of $800 for the death of an aged woman, supported by her
children, is not excessive.] Where a woman sixty-eight years of age, in fair
health and capable of assisting in household affairs, who, having reared her
children and seen them settled in life, was spending her declining years living
around among such children, some of whom afforded her pecuniary assistance
to make her life comfortable, was killed through the negligent act of a rail-
road company, a verdict of $800, recovered by her administratrix, will not be
set aside by the court as excessive. PHALEN. ROCHESTER RAILWAY CO.. 448
NEGOTIABLE PAPER-Law relating to.
See BILLS AND NOTES.
NEW ROCHELLE
Village Act, chapter 414, Laws of 1897 — it applies to
the grading of streets in the village of New Rochelle-claimants for damages
need not all unite in one proceeding.
NEW TRIAL Ejectment- -a second new trial granted only as a matter of
favor not granted because one party succeeded on the first trial, and the other
party on the second trial.
NEW YORK CITY- Attendant of a District Court in the city of New York
which became a Municipal Court by virtue of the Greater New York charter —
when his term of office expired—"term" does not apply to an appointive office
held at the pleasure of the appointing power.
See PEOPLE EX REL. BATEY . TIERNEY..
Repayment of an assessment in New York city under chapter 442 of
1895- who is entitled to it - the record of a power of attorney recorded in the
New York register's office is not evidence.
Plumbers in New York city not registered under chapter 602 of 1892-
a contract for plumbing not enforcible by them. - a contract for other work in
connection therewith may be.
See JOHNSTON v. DAHLGREN.
A veteran employed as collector of fees in the city of Brooklyn is entitled
to be retained under the Greater New York charter · - confidential position.
See PEOPLE EX REL, SPEIGHT v. COLER..
Civil service the rules in the city of New York do not require the
approval of the State Civil Service Commission.
See PEOPLE EX REL. LEET . KELLER.
Landlord and tenant-title divested by condemnation proceedings -
rent subsequently accruing not recoverable by the landlord.
See LODGE v. MARTIN..
Eminent domain — damages, to whom awarded for the change of grade
in New York city by the depression of the Harlem railway.
See PEOPLE EX REL. COLER v. LORD...
an order directing the payment of money to particular
claimants, obtained upon the receiver's motion, without notice to another claim-
ant who has demanded notice of all proceedings-liability of the receiver to the
latter claimant.
See PEOPLE v. FAMILY FUND SOCIETY.
Brokers- a sale, without notice, of merchandise purchased on a margin,
sustained by a memorandum, reserving such right of sale, furnished to the cus-
tomer on previous transactions — customer's promise to pay the loss, implied.
See ROBINSON v. CRAWFORD.....
Bills and notes· - notice to a bank that a note was signed in a firm name
for the accommodation of the payee.
See SECOND NATIONAL BANK v. WESTON...
Of intention to sue alleged and not denied
its sufficiency cannot be
challenged on the trial.
See MCHUGH v. THE MAYOR
Of judicial sales.
See JUDICIAL SALE.
OFFICER - New York city-attendant of a District Court in the city of New
York which became a Municipal Court by virtue of the Greater New York char-
ter- when his term of office expired—"term" does not apply to an appointive
office held at the pleasure of the appointing power.
See PEOPLE EX REL. BATEY . TIERNEY..
Removal of a veteran employed by the day—no right of action therefor
existed prior to chapter 821 of Laics of 1896-his discharge involves neither
judicial nor quasi judicial functions.
Sheriff of Erie county. - salaries paid to his under sheriff and deputy
sheriff's cannot be charged to the county as ** necessary and actual disbursements.”
See MATTER OF BECK....
A veteran employed as collector of fees in the city of Brooklyn is entitled
to be retained under the Greater New York charter -- confidential position.
See PEOPLE EX REL. SPEIGHT . COLER.
Civil service. the rules in the city of New York do not require the
approval of the State Civil Service Commission.
See PEOPLE EX REL. LEET v. KELLER..
OFFICIAL BALLOT:
See ELECTION.
ORAL EVIDENCE:
See EVIDENCE.
PARENT AND CHILD-A beneficiary under a will in a transfer tax appraisal
is not incompetent to testify as to confidential communications and relations with
the deceased in order to show an adoption.
See MATTER OF BRUNDAGE.......
Power of attorney given by a daughter to her father to be exercised in his
discretion limitations upon its exercise.
PARTITION - Measure of allowance, for improvements made by a co-tenant
under the belief that she was sole owner.] In an action for partition it is proper
to allow to a party who has, in good faith, acquired possession of the prop-
erty sought to be partitioned under the mistaken belief that she owned the
entirety, and has made valuable improvements thereon, the value of such
improvements, after the other owners have been paid the full value of their
share of the land exclusive of the improvements, and in addition thereto
the fair and reasonable value of such party's exclusive use and occupation
of the portion of the land which belonged to the other owners.
Will — trust created for the benefit of several persons to continue during
the lives of two persons named· death of one of the cestui que trustent before
that of the testatrix - it does not extinguish the trust as to his share-
tion of the income - purchaser in partition not required to take the title.
See SMITH v. SECOR......
PARTNERSHIP — Bills and notes
- notice to a bank that a note was signed
in a firm name for the accommodation of the payee.
See SECOND NATIONAL BANK v. WESTON....
Order of arrest-sustained by false representations inducing a party to
enter into a partnership.
See HUBBARD v. RICHARDSON
PARTY Insurance · relative rights of a domiciliary and of an ancillary
administrator to enforce policies of an insurance company domiciled in the State
issuing the ancillary letters.
See STEELE . CONNECTICUT GENERAL LIFE INS. Co..............
Eminent domain — damages, to whom awarded for the change of grade
in New York city by the depression of the Harlem railway.
See PEOPLE EX REL. COLER v. LORD...
Action, under the provisions of section 756 of the Code of Civil Procedure,
PAYMENT Mechanics' Lien_ Law — application of chapter 342 of 1885 —
partial payment for material made by a contractor to a sub-contractor in advance
of its delivery—liability to a subsequent lienor of the party paying it.
See SMACK v. CATHEDRAL OF THE INCARNATION..
Promissory note-proof of payments of interest taking it out of the bar
of the Statute of Limitations.
See DAVENPORT . COMSTOCK.
PERFORMANCE- Of contracts.
PERSONAL PROPERTY - Brokers - -a sale, without notice, of merchan-
dise purchased on a margin, sustained by a memorandum, reserving such right of
sale, furnished to the customer on previous transactions — customer's promise to
pay the loss, implied.
See ROBINSON v. CRAWFORD...
Trust deed under a provision for the distribution of a trust fund
among the "next of kin" the proceeds of real property cannot be given to heirs
at law."
See N. Y. LIFE INS. & TRUST CO. . HOYT.
Assessment review of, by certiorari - when it is based on an inventory
less than the assessment a reference will be ordered to ascertain the proper
amount.
See PEOPLE EX REL. BROWN . O'ROURKE,
PLEADING Under a complaint alleging performance of a contract, evidence
excusing non-performance is inadmissible.] 1. Where in an action to recover
under a contract for work done and materials furnished the complaint alleges
that the contract was performed, a recovery cannot be sustained upon a find-
ing that the plaintiff in the performance of the work intentionally departed
from the specifications in some material matters, but that this was done with
the consent of the architect, the changes being mostly advantageous to the
defendant, and that the plaintiff was oraily authorized by the defendant to
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