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board it by the front end as the rear end. That it would so stand until plaintiff could reach a place of safety was a matter upon which he might rely. Under such circumstances, it would be a harsh rule to characterize his act as negligent, when his position was only rendered dangerous by the negligent act of defendant. The charge of the court, upon special request of defendant, was more favorable than it was entitled to on this point. Upon this proposi. tion, it is sufficient now to say that, upon the evidence and the favorable charge, the jury have found for plaintiff, and the evidence and circumstances are sufficient to support their finding. Briggs. v. Railway Co., 148 Mass. 72, 19 N. E. Rep. 19.

But one exception is urged upon our attention, and that relates to a refusal to charge. The request was:

"I ask the court to charge the jury that the defendant is not chargeable with negligence if the motorman started the car while the plaintiff was attempting to board it by the front platform, if he was not aware of the plaintiff's presence there."

This request was properly refused. It is seen at a glance that the request limits defendant's liability to the knowledge of the motorman, thus entirely excluding any consideration of the circumstances, which tended to show that, if the motorman had properly discharged his duty, he ought to have known of plaintiff's presence. Such rule, if adopted, would have permitted the motorman to have been guilty of gross dereliction of duty, whereby he placed it beyond his power of being cognizant of plaintiff's presence, and then allege such negligence as a defense, because thereby he was deprived of knowledge of plaintiff's presence at the car. The court had already charged fully and favorably to defendant upon that proposition, and the discussion already had disposes of the question adversely to defendant. No other exceptions are argued, and our own examination discloses no error in any that were taken.

The recovery was $20,000, and, while the conclusion is reached that no error exists in the record, we are convinced that the dam. ages awarded are excessive in amount. The plaintiff's position in life is quite moderate in circumstances. He was only capa. ble of earning eight dollars per week, as a watchman of tools used about the building of a sewer. His age was 36 years, and, under the rule provided by the Northampton tables, his prob. able duration of life would be 12.377 years. If we assume that he would work each day for the remainder of his life upon this basis, he would possess an earning power equaling $5,863. 54. Taking the earning power of this sum, as fixed by Sup. Ct. Rule 71, measured by the probable duration of life, would produce $3,186.35. This, added to the principal sum, makes $9,049.89, as the amount which the continuous exertion of the plaintiff would produce. To this must be added the expense incurred by reason of the injury, appearing in the record to be $330. This, added to the previous sum, makes a total of $9,379.89, as the amount of injury sustained so far as the same affects plaintiff's earning power, upon the ordinary basis used in determining the value of estates. The court does not overlook that compensatory damages are not limited

to the sum named, nor can they be accurately ascertained; but taking into account all the other elements recognized by law, and being conscious of the uncertainty attendant thereon, we think that the sum of $10,620.11 for these elements is excessive in amount, measured by plaintiff's capacity and his walk in life. We are therefore constrained to reduce the recovery to the sum of $15,000, believ. ing thereby that justice will be more nearly attained. The order will therefore be that the judgment appealed from be reversed, unless the plaintiff, within 10 days after the entry of the order herein, serve upon the defendant or his attorney a written notice accepting said sum as damages herein, in which latter event the judgment and order appealed from are affirmed, without costs to either party in this court.

Since the above was written, plaintiff's attorney has filed with the court a supplemental point, claiming that defendant has not appealed from the order denying the motion for a new trial, and that this court is without power to review the facts. We do not deem the point well taken. Section 1300, Code Civil Proc., provides that an appeal must be taken by serving upon the attorney of the adverse party and the clerk with whom the judgment or order is entered a written notice to the effect that the appellant appeals from the judgment or order, etc. It seems clear that no particular form of language is requisite. If the words used are, in effect, a notice that the order made is sought to be reviewed, it is sufficient. The notice in this case states first the appeal from the judgment. Then it states: "And appellant intends to bring up for review, upon such appeal, the order dated the 25th day of October, 1892, denying defendant's motion for a new trial herein on the judge's minutes." The notice specifies distinctly the order, and, if the word “appeal" had been substituted for "intends," the notice would be strictly within the section, although happier phraseology could have been used. It is enough to say now that the intention is apparent; plaintiff has not been misled; and, in effect, it is a notice of appeal from the order. The following authorities support this view: Hymes v. Van Cleef, (Sup.) 15 N. Y. Supp. 343, 344; Van Ingen v. Snyder, 24 Hun, 83. Result as heretofore indicated.


(Supreme Court, General Term, Second Department. July 28, 1893.) MUNICIPAL CORPORATIONS—IMPLIED CONTRACTS.

Where water is supplied to a village which has power to make contracts for a supply of water for public use, but no contract was in fact made, an agreement to pay the value of the water will be implied. Appeal from special term, Orange county.

Action by the Port Jervis Waterworks Company against the village of Port Jervis. From a judgment in favor of plaintiff for $1,644, with $194.23 costs, defendant appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.
Lewis E. Carr, for appellant.
Wm. H. Crane, for respondent.

DYKMAN, J. This action was for the recovery of the value of water furnished by the plaintiff to the defendant for sprinkling the streets of the village, the public fountains, water troughs, jail and hose house, from the 1st of May, 1886, to the 1st of May, 1889. The case was tried before a judge, without a jury, and he rendered a judgment in favor of the plaintiff for the full amount of the claim. The defendant has appealed from the judgment. The facts are practically undisputed, and the defense to the action proceeds upon the absence of an agreement, or the want of power to incur the liability, the finality of the action of the auditing board rejecting the claim, and the want of funds. There is no destitution of power in the municipal authority of this defendant to make contracts for a supply of water for public use in the village, and no limitation of such power inside of the public necessities. There was no contract for the water out of which this claim arises, yet it was furnished, and the law will justify an implication of a contract for the payment of its value. Municipal corporations may be bound upon contracts implied from sufficient facts. “The doctrine of an implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice, without respect to the same." Nelson v. Mayor, 63 N. Y. 544. “That corporations may be bound upon implied contracts made by its agents, and to be deduced from corporate acts, without a vote of the governing body, is now well settled.” Kramrath v. City of Albany, 127 N. Y. 581, 28 N. E, Rep. 400. To the same effect is Dill. Mun. Corp. $ 383. The claim of the plaintiff was before the governing body, --the defendant, and it was just. There was sufficient authority in the charter to enable the officers to pay the amount, but they refused to do so, and neglected to put the proper machinery in operation to raise the funds to pay the claim, and, under such circumstances, the law furnishes the creditor with a remedy by action. Judgment should be affirmed, with costs.


(Supreme Court, General Term, Second Department. July 28, 1893.)


Where the complaint in an action to set aside a deed alleges that a certain defendant has or claims to have some interest in the land, it is sufficient to withstand a general demurrer by such defendant, without further allegatious as to his title.

Appeal from special term, Westchester county.

Action by Sarah M. Quibell against Peter C. Rust and others to cancel a conveyance of land. From a judgment overruling the general demurrer of John A. Morris, that defendant appeals. Ai. firmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. C. E. Coddington and Alfred B. Cruikshank, for appellants. Rufus L. Scott, for respondent.

BARNARD, P. J. The complaint states that the plaintiff was the owner of section A of a farm of land in Westchester county called the “Wetherby Farm” in a partition map on file in the Westchester county clerk's office; that she was also the owner of another part of said section A, which was subject to a life estate of the mother of plaintiff; that this life estate was held by one Rust, as trustee, for the plaintiff's mother; that she agreed to convey the life estate to the plaintiff, which was done under an agreement between the plaintiff, her mother, and the trustee that the plaintiff should convey the first part of section A above named to Rust, to hold in trust during the life of the mother as security against any claim she might make on account of her life in the parcel in which she had a life estate, and which she requested Rust to convey to the plaintiff. This deed given by plaintiff to Rust was to have no effect after the life estate fell in, but was then to revert to plaintiff. The mother is dead, and the plaintiff seeks to have her title established in the piece given to Rust, trustee, by her. All the heirs at law of the plaintiff's mother are made parties. The complaint makes John A. Morris a party defendant under the statute, alleging that he has or claims to have some interest in the property. Morris was properly made a party. The action is one in equity to set aside a deed given as security to a trustee against a possible claim to be made by his beneficiary, because he, the trustee, had conveyed away his life estate at her request, without any consideration. The heirs at law and all persons who claim under the deed to the trustee are properly made parties. The question has recently been considered by the court of appals in Townsend v. Bogert, 126 N. Y. 370, 27 N. E. Rep. 555. The court held in that case that an averment that certain parties "claim some right, title, or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to

said premises," was a sufficient statement of a cause of action upon a demurrer. The order and judgment should therefore be affirmed, with costs.

All concur.

HEYLER V. NEW YORK NEWS PUB. CO. (Supreme Court, General Term, Second Department. July 28, 1893.) 1. LIBEL-AMENDING ANSWER-DISCRETION OF COURT.

When an action for libel was called for trial, defendant sought to file an amended answer alleging that a retraction was made three days after the publication of the libelous article. Answer had been filed more than six months, and an amended answer had afterwards been put in on motion. No reason was given for the delay in alleging the retraction, except the unverified statement of counsel that he knew nothing thereof until the day before. Held, that the refusal to allow the amendment at

that time was not an abuse of discretion. 2. SAME-ABSENCE OF MALICE NO DEFENSE.

It is no defense to an action for publishing an article charging plaintiff with a crime that the charge was made on information obtained from others without any express malice on the part of defendant.

Appeal from circuit court, Queens county.

Action for libel by Elizabeth Heyler against the New York News Publishing Company. Plaintiff had judgment on the verdict of a jury, from which, and an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

Myer J. Stein, (W. F. Severance, of counsel,) for appellant.
T. C. Kadien, (Louis J. Grant, of counsel,) for respondent.

BARNARD, P. J. The plaintiff recovered a judgment for $1,000 for a libel published by the defendant of and concerning her. was a married woman, and the article stated, in effect, that she was a single woman, and had had a child, which she strangled to death. The libel was one entirely without excuse or justification if the charge was untrue. The answer did not in direct terms state the truth of the charge, but pleaded that the circumstances under which the child was born led the public authorities to believe a crime had been committed; that the facts were published without malice, and under the belief that it was true. The alleged libel was published on December 16, 1890. When the case was called for trial in June, 1892, the defendant made an application to amend the amended answer by stating that a retraction had been made on the 19th of December, 1890. Assuming that such a statement was proper in an answer, and that it tended in any way to miti. gate the wrong done if a wrong had been done, the trial judge did not abuse his discretion in denying the application. An answer had been served in November, 1891, and an amended answer had been put in upon motion on the 7th of June, 1892. No reason was

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