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...... 397

NEGLIGENCE - Continued.

14. Running a car at the rate of fifteen miles an hour in a dense fog
into a wagon

- a statement by the motorman that he discovered, and attempted
to avert, the peril as soon as possible does not require a nonsuit.). In an action
to recover damages for personal injuries sustained by the plaintiff while a
passenger on one of the defendant's cars, which, while traveling through
a dense fog at a speed of fifteen miles an hour, ran into a wagon on the
track abead of it, the fact that the motorman testified that he discovered
the peril as soon as possible and did everything in his power to avert the col-
lision, does not require the court to nonsuit the plaintiff, as the credibility of
the motorman is a matter for the consideration of the jury, and because, if
it had not been for the excessive speed of the car, the peril, even if not
sooner discovered, might have been successfully averted.
FISHER 0. UNION RAILWAY Co....

365
15. Who is competent to state the speed of the car.). A passenger upon
the car on the occasion in question, who was a civil engineer of eleven years'
experience, and who was at one time connected with the railroad business
and had been accustomed to tim speed of cars by a watch, is competent
to testify to the speed of the car on the occasion in question. Id.

16. When a complaint may be dismissed although a verdict has been ren-
dered in favor of the plaintiff.] The judge presiding at the trial of an action
to recover damages resulting from the death of the plaintiff's intestate caused
by the alleged negligence of the defendant, may, if there is no evidence
that the defendant was guilty of negligence, dismiss the complaint, notwith-
standing that he has previously submitted the case to the jury upon certain
specific questions of fact and the jury has found in favor of the plaintiff
thereon. " GLENNON v. ERIE R. R. Co.....

17. When a new trial should be granted.] If the evidence given on the
trial of the action is such that the case should have been submitted to the
jury, but the verdict rendered by the jury is against the weight of evidence,
the court has no power to dismiss the complaint, but should set aside the
verdict and grant a new trial. Id.

18. - T'estimony by a witness that he did not hear an engine bell or whistle
- admission by him that he had stated the contrary but was not under oath.]
While the fact that a whistle was not sounded or a bell rung upon a locomo-
tive, may, under some circumstances, be established by the testimony of
witnesses to the effect that they did not hear such bell or whistle, the mere
unfortified fact that a single witness, not shown to be listening, on an occa-
sion when there was considerable other noise, did not hear the bell or whistle,
is not sufficient evidence to support a finding that these signals were not
given, particularly when the force of such witness' testimony is weakened
by a statement made the day following the occasion in question, to the effect
that he did hear the bell and by a suggestion made by him in his testi-
mony that he was only required to tell the truth when he was under
outh. Id.

19. Duty of care required of an electric railway company towards
an employee of a contractor engaged to paint its poles.) An electric street
railway company which enters into a contract for the painting of its trolley
poles, must use reasonable care to protect, against injury, the workmen
employed by the contractor to perform the contract.
KENNEALY 0. WESTCHESTER ELECTRIC R. Co......

293
20. Evidence as to the condition of its wires previous to the accident
inferred from their subsequent condition.) Where, in an action brought by
such a workman against the electric street railway company to recover dam-
ages for personal injuries which the workman sustained because of the
defective insulation of one of the defendant's wires, evidence is given that
the condition of the wire remained unchanged from July 22, 1899, the day
on which the accident occurred, to October 14, 1902, the day when the action
was tried, the jury may infer that the condition of the wire remained
unchanged from the time it was put up until the day of the accident, an
interval of a year. Id.

21. Charge that, if in doubt, the jury must render a verdict for the defend.
ant.] In such an action the court may properly refuse to charge the follow•

NEGLIGENCE—Continued.

ing proposi ion: "If the jury is in doubt, if the evidence is equal on both
sides, the verdict shall be for the defendant," as, even if the jury were in
doubt, they were not obliged to find a verdict for the defendant. Id.

PAGE.

22. Not necessarily implied from the fact that horses run away.] The
mere fact that a team of horses runs away does not necessarily imply negli
gence on the part of the driver. MCGAHIE . MCCLENNEN.

NEGOTIABLE PAPER-Law relating to.

See BILLS AND NOTES.

NEW TRIAL-A complaint containing two causes of action, to each of which
a counterclaim is interposed—an order setting aside a verdict as to one cause of
action and granting a new trial involves a new trial of both causes of action and
of the counterclaim-right thereto, not waived by not moving to resettle an
improper order.] 1. The complaint in an action contained two separate and
distinct causes of action. The answer denied certain allegations of the com-
plaint in two counts thereof and as a separate defense set up a counterclaim
to both causes of action, arising out of the alleged breach of the contract
which was the basis of the plaintiffs' second cause of action. At the trial
three orders were made, viz., an order setting aside as inadequate a verdict
in favor of the plaintiffs upon the first cause of action and granting a new
trial of t at cause of action; an order denying the defendant's motion to set
aside a verdict in favor of the plaintiffs upon the second cause of action, and
an order dismissing the counterclaim.

Upon an appeal to the Appellate Division the three orders were affirmed,
but the order of affirmance made no provision for a new trial. Upon the
second trial the trial judge ruled that only the first cause of action was
before the court, and that neither the second cause of action nor the counter-
claim could be again litigated.

Held, that the order setting aside the verdict of the jury as to the first
cause of action and granting a new trial thereof necessarily involved a
retrial of the whole controversy, including the second cause of action and
the counterclaim;

That the failure of the defendant to move for a resettlement of the order
of the Appellate Division and for the insertion therein of a provision defin
ing the scope of the new trial, or for such a disposition of the appeal from
the respective orders as would result in itself in a trial of the whole case
de novo, did not preclude the defendant from objecting to the ruling of the
trial judge;

That the defendant could not be deprived of a substantial right by mere
acquiescence in the form of the order by which it was defeated.

VERNON v. O'BANNON Co...................

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2.

A plaintiff who obtains a verdict cannot object to a condition, on com-
pliance with which by him the verdict is allowed to stand- the costs should be
paid by the moving party where a new trial is granted because of error in the
amount of the verdict.] The defendant in an action of conversion offered to
allow judgment to be taken against him for the sum of $100, which offer
was declined by the plaintiff. The action was tried before a jury, which
found a verdict in favor of the plaintiff for $100. There was evidence to
support the verdict up to the amount of $75, and also some testimony from
which an inference might be drawn in support of a larger amount.

The trial judge made an order setting aside the verdict of the jury and
granting a new trial, unless the plaintiff would stipulate to reduce the
recovery to $75. He also imposed the costs of the trial upon the plaintiff.

Held, that the trial judge would have been justified, under section 999
of the Code of Civil Procedure, in granting a new trial unconditionally, and
that the direction that the verdict might stand if the plaintiff would elect
to reduce the amount thereof was a favor granted to the plaintiff, of which
the latter was not entitled to complain;

That the error which justified the granting of a new trial having been com
mitted by the jury, the costs of the trial should have been imposed on the
defendant as a condition of making the order granting the new trial.

LAWRENCE v. WILSON...

...

263

374

472

NEW TRIAL- Continued.

PAGE.

3. Because of newly-discovered evidence - affidavits of the witnesses or a
statement that they cannot be obtained are necessary.] Upon a motion for a
new trial upon the ground of newly-discovered evidence, affidavits of the
newly-discovered witnesses, to the effect that they are ready to swear to the
facts claimed to be newly discovered, must be presented, or it must be shown
that such affidavits cannot be obtained.

CHEEVER v. SCOTTISH UNION & N. INS. Co. (No. 2)...................

Short decision under Code of Civil Procedure, section 1022- when
the grounds thereof are not sufficiently stated - the judge who made it being
no longer on the bench, a new trial will be ordered. GEIN v. LITTLE......
See DECISION.

NEW YORK CITY — Civil service― dismissal of an employee because of a
reduction in the salary appropriation for a city department such reduction
does not requie that each salary be scaled down and all the employees be retained
— employees so dismissed are not entitled to make an explanation — effect of
there being a surplus in the salary appropriation at the end of the year.
See PEOPLE EX REL. STEERS v. DEPT. OF HEALTH.....

-

521

-

Trial of a member of the New York police force. the charges may be
heard before a deputy and the sentence be fixed by the police commissioner · where
such sentence was based on four charges sustained by the deputy, two of which
were not established by the proof, the Appellate Division ordered a new trial.
See PEOPLE EX REL. REARDON v. PARTRIDGE..

Removal of a deputy tax commissioner in the department of taxes and
assessments of the city of New York - he is not a "deputy" within the meaning
of section 21 of the Civil Service Law, and cannot be summarily removed.

See PEOPLE EX REL. RYAN v. WELLS..

-

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Attendance officers in the territory added to the city of New York by
chapter 378 of the Laws of 1897-they were not transferred to the educational
system of the Greater New York.

See PEOPLE EX REL. FITZGERALD v. BD. EDUCATION.....

Civil service.

a person employed to furnish and drive a horse and wagon
for the New York city department of public works is not a "person holding a
position by appointment or employment."

See PEOPLE EX REL. SEIB v. REDFIELD.

NONSUIT:

Husband and wife - evidence insufficient to establish desertion of a wife
by her husband — proof that the wife is likely to become a public charge.

See PEOPLE v. CROUSE...

NEW YORK REVISED STATUTES:

[See table of the New York Revised Statutes cited, ante, in this volume.]
NEW YORK STATE CONSTITUTION:

See CONSTITUTIONAL LAW.

NEWLY-DISCOVERED EVIDENCE:

See NEW TRIAL.

[See table of sections of the New York State Constitution cited, ante, in
this volume.]

OBJECTION- How taken on the trial of an action.

See TRIAL.

See TRIAL.

-

NOTARY-Notice of dishonor under the Canadian Bills of Exchange Act —
when not sufficient.

See MERCHANTS' BANK OF Canada v. Brown..

NOTICE - What notice is insufficient to show want of authority in an attorney.
See BUTCHER v. QUINN.

331

503

310

270

537

367

352

599

391

OFFICER – Application of civil service rules to.

See CIVIL SERVICE.
Of a municipal corporation.

See MUNICIPAL CORPORATION.
OFFSET:

See SET-OFF.
ORDER - Of arrest.

See ARREST.
See MOTION AND ORDER.

PAGE.
PARTITION — The action is not pending against a defendant named therein
until the summons is served on him - - an action for partition may be brought by
one who is a party defendant, but not as yet served, in another partition suit, in
which certain of the defendants have been already served the action is not
barred by such other suit, although the plaintiff in the action had knowledge
thereof.] Jessie B. Crawford brought an action to partition certain premises,
and, on October 21 and 22, 1901, served the summons therein upon all of
the defendants but Charles C. Hart. October twenty-third the summons
served on one of the defendants was sent to Frances Hart, who was a
daughter of Charles C. Hart. Frances Hart thereupon consulted an attor.
ney, and thereafter, on the same day, Charles C. Hart, with knowledge of
the contents of the summons, executed to the said Frances Hart a convey-
ance of his interest in the premises. On October twenty-fifth Frances Hart,
through the attorney before mentioned, filed a summons and complaint and
lis pendens in an action to partition the premises and recorded the lis pen-
dens. She also served some of the defendants on that day. On October
twenty-sixth Jessie B. Crawford served the summons in the action brought
by her upon Charles C. Hart. October twenty-eighth Jessie B. Crawford
filed her complaint and lis pendens and recorded the latter instrument.
November second Frances Hart completed the service of the summons and
complaint in the action brought by her. November ninth an ex parte order
was made in the action brought by Jessie B. Crawford, bringing in Frances
Hart and other persons as parties defendant, and permitting the filing of
an amended complaint and lis pendens and the service of a supplemental
summons. November thirteenth a summons, issued in the action brought by
Jessie B. Crawford, was served on Frances Hart.

Held, that Frances Hart was entitled to maintain the action brought by her;

That the action brought by Jessie B. Crawford was not pending against
the said Frances Hart or against Charles C. Hart until they, respectively,
had been served with process;

That the knowledge possessed by Charles C. Hart at the time he conveyed
his interest in the premises in question to Frances Hart, of the summons
in the action brought by Jessie B. Crawford, did not constitute a legal
impediment to the conveyance. Hart v. Harr..

236
PARTNERSHIP — Good will of a partnership - it passes to a trustee in
bankruptcy.] 1. The good will of a business conducted by a firm which has
been declared bankrupt is an assignable asset, which passes to the trustee
in bankruptcy, and, ipon a sale by the trustee in bankruptcy of all the
property of the bankrupt firm, such good will passes to the purchaser, even
though it is not specifically mentioned in the bill of sale.
FREEMAN V. FREEMAN

110
2. A purchaser thereof may state that he is the successor" of the firm. )
Such purchaser also acquires the right to use a sign stating that he is the
successor of the bankrupt firm.
The nature of the good will of a business, discussed. Id.

Payment under a guaranty of the indebtedness of a partner to his
firm construction of the will of the guarantor, giving a share of her estate
to such partner, by him and the other parties in interest, charging such pay.
ments against his share — when conclusive as against his trustee in bank-
ruptcy – when it is the proper construction. HUNT 0. OSBORN....

464
See WILL.

PAGE.

PARTY – Settlement of a case without the knowledge of the defendants attor-
ney - application by such attorney to put the case on the calendar with a vier
to his recovering costs appeal in the defendant's name from its refusal.]
1. After an action was at issue, the defendant, without the intervention
of his attorney, effected a settlement with the plaintiff and the parties
exchanged general releases and consents to a discontinuance. When the
case was called for trial, the court, against the objection of the defendant's
attorney, who contended that the settlement was made collusively for the
purpose of defrauding him of his taxable costs, marked the case settled.
The defendant's attorney subsequently made a motion to restore the case
to the calendar for trial for the purpose of determining his right to the tax-
able costs. The motion was denied and an appeal was taken from the order.
Such appeal purported to be taken by the defendant himself and not by the
defendant's attorney.

Held, that the defendant was not aggrieved and had no status which
enabled him to maintain the appeal;

That, while it might well be that the appeal, although in the name
of the defendant, was solely the act of the defendant's attorney, the court
was bound by the record in regard to the identity of the appellant.
POMERANZ V. MARCUS.

321
2. Proper procedure for the review of the order.] Semble, that had the
attorney appealed from the order, it would have been necessary for him to
serve the notice of appeal upon the defendant and that the latter would in
that case be a respondent upon the appeal. Id.

An action for partition may be brought by one who is a party defend-
ant, but not as yet served, in another partition suit, in which certain of the
defendants have been already served. HART v. HART..

236
See PARTITION.

Agreement by a wife to will to her stepson so much of the estate left to
her by his father as might not be used by her — it is not enforcible by the
son. WAIT v. WILSON.

485
See CONTRACT.
PASSENGER - On a railroad.

See RAILROAD.
PATENT — Conditions of.

See DEED.
PAYMENT — Under a guaranty of the indebtedness of a partner to his firm
- construction of the will of the guarantor, giving a share of her estate to
such partner, by him and the other parties in interest, charging such pay-
ments against his share — when conclusive as against his trustee in bank-
ruptcy — when it is the proper construction. Hunt v. OSBORN...

464
See WILL,

Money collected by an attorney on a claim and paid over by him to a
third person, to whom the client had assigned the claim — the client cannot
recover such money from the third person. CURTIS 0. ALBEE...

145
See ATTORNEY AND CLIENT.
PENAL CODE — SS 4, 5, 6, 675 New York city magistrate jurisdiction
of misdemeanor under Penal Code, & 675.
See PEOPLE EX REL. SMITH V. VAN DE CARR.....

9
§ 351 Selling pools on a horse race when an indictment therefor
sufficiently states the crime and the acts constituting it when it is not defective
for duplicity if the defendant is not advised with sufficient definiteness of the
acts with which he is charged, he should apply for a bill of particulars.
See PEOPLE v. CORBALIS.

531
$ 6400 Real estate broker what writing constitutes a substantial com-
pliance with section 640d of the Penal Code requiring the written authority of
the owner of land to one offering it for sale - the section does not bar commis-
sions the section is unconstitutional.
See CODY V. DEMPSEY...

335
[See table of sections of the Penal Code cited, ante, in this volume.]

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