cussion of the proofs is not within our pres- "You can easily name a price which shall not ent purpose, but it is due to the parties and be uninviting, and shall include your expenses their counsel that we indicate in some gen- for resale freight, etc., unless that be unwise eral way the view we take of the evidence. for comparisons." He repeats: "As said beThe contract of May 30th between the de-fore, purchase on your part involves delivery fendant company and Pope, Cole & Co. was at Baltimore of ingot, and that unfavorable both negotiated and drawn by Harnickell. discriminating feature against Baltimore must It provides for the smelting of the ore, and be covered either in the toll or in the deducthe purchase of the copper by the latter firm. tion from lake copper, if that be the mode of That Harnickell was their agent in the pro- settling price, and in such a way that when curing of that contract, so far as it relates to Wallace takes it off your hands you will be the smelting of the ore, and was paid by them at no disadvantage," and, what is most sigfor his services in that respect, is conceded; nificant of all, when he comes to speak of the but it is claimed that for his services in pro- persons to be referred to for the purpose of curing the sale he has not been paid, and was fixing the price he says: "Hungerford is a good employed by the defendant for that purpose. man to refer to as one party. Hendricks The evidence not only shows no contract of always too high. * ** * Simpkins is inemployment, but establishes inferentially the correct; ** * always too high." In exact contrary. The defendant company other words the man who now claims to have never offered or proposed to make more than acted for the vendors is found advising the a single contract, and that was for the sale of vendees how to get the property for the their product to some one who would smelt lowest possible price. It strikes us as beyond and refine it, and pay according to results, reasonable question that there never was any and just that one contract is all that was ever employment by defendants, and that Harmade. Wallace represented the company. nickell negotiated the sale as a necessary conAt first he wrote directly to Pope, Cole & Co., |dition of earning commissions upon the smeltstating his wish to dispose of the mine pro- ing part of the agreement, and, so far as he duct to them. The latter answered by re-acted beyond his own interest, acted wholly ferring him to Harnickell as a man who knew for and in behalf of the vendees, and with their ways and methods. They were in daily correspondence with him, and through him had completed hundreds of transactions. In accordance with the suggestion, Wallace sent for Harnickell, and made his proposition to him. Assume, even, that the latter's au

thority was only to make a contract for smelting the ore, and yet his position was entirely plain. It was obvious that he could not make a smelting contract, and get even his commission from his employers for that, unless he induced them also to buy the refined product, which was made an essential condition. Whatever he did in that respect was in his own interest, and for his own benefit, and accounts for all his action in negotiating the contract. Not the sli htest inference of an employment by the defendant is justified by his conduct. On the contrary, his direct and palpable interest was against the vendors in the sale. His prin pals did not desire to buy; they could not smelt if they did not buy; and to earn commissions for a smelting contract Harnickell was compelled to induce his principals to purchase. And how? Obviously he must make it for their interest to buy. He must screw the vendor's price down to the lowest possible point, and show them how such desirable result could be reached. That he proceeded to do. It is only necessary to read his letters to Pope, Cole & Co. of the 10th and 11th of May to understand his position. He tells them what was the truth from the first moment, that "the matte is to be sold as well as smelted." He intimates that Wallace & Sons, as a firm, would in the end buy the copper of Pope, Cole & Co., and adds: "You would thus make and buy at your price; furnishing thus a very easy market, and no risk to you." He suggests:

care only for their profit. The judgment should be reversed, and a new trial granted, costs to abide event. All concur.

(116 N. Y. 476)

IVORY v. TOWN OF DEER PARK.1

(Court of Appeals of New York, Second Divis(Court of Appeals of New York, Second Divis

ion. Nov. 26, 1889.)

DEFECTIVE HIGHWAYS.

1. In an action under Laws N. Y. 1881, c. 700, for injuries caused by the negligence of highway commissioners in failing to keep the highway in proper condition, there was evidence that, 11 years before the accident occurred, an excavation 7 feet deep had been made by a railroad company just off the highway, and within 11 feet of the beaten track, and that there was no ditch or barrier between the beaten track and the excavation. While plaintiff was driving over the road, on a dark night, his horses, instead of following the curve of the road, continued straight ahead, falling into the excavation, and injuring plaintiff. Held, that of the highway commissioners. plaintiff's injuries were caused by the negligence

2. The fact that a road has been used for public travel many years, and has been recognized gives it that character, so far as respects the lia and treated by the town authorities as a highway, bility of the town to a traveler for injuries caused by the negligence of the highway commissioners in failing to keep it in proper condition. tice of the dangerous condition of the highway, 3. Though the commissioners had no direct nothe fact that such condition has continued and been exposed for upwards of 10 years is sufficient to warrant the inference that they knew, or ought to have known, of it.

4. The commissioners are not excused from negligence on the ground that they had no funds which they were required to use in repairing the N. Y. 1857, c. 615,) provides the means for raising highway, since 1 Rev. St. N. Y. p. 503, § 4, (avs money for the purpose, and Laws N. Y. 1869, c. 855, (Amend. Laws N. Y. 1874, c. 260,) gives them authority to borrow additional money when neces

sary.

1Affirming 42 Hun, 656, mem.

6. It is not proper to ask a witness familiar with the town what its character is as to the necessity for highway labor, since the question calls for the opinion only of the witness.

7. Nor is it proper to ask the opinion of a witness as to the comparative danger of the place where the accident occurred and another place on

the road.

8. The fact that plaintiff's horses were running away, and were beyond his control, without fault on his part, does not relieve the commissioners from liability, where the defect in the highway was a proximate cause of the accident.

Appeal from supreme court, general term, second department.

Lewis E. Carr, for appellant. John W. Lyon, for respondent.

5. An order made by the highway commission- | edge of the embankment so made by the cut ers after a road has been used as a highway for was about 11 feet from the beaten track, be20 years cannot change the width or location of the road from what it was before, but it is admis- tween which and it there was no ditch and sible in evidence to show the width of the high- no barrier of any kind, but the surface was way, as manifested by its use as such for 20 years, uninterruptedly continuous, and its smoothand that without proof of the commissioners' au- ness substantially unbroken, from one to the thority to make it. other. This had remained so from the time the excavation was made, which was about 11 years before the accident in question. The boundaries of the old road, as used there prior to 1848, do not very clearly appear, although there was evidence tending to prove that there was a stone wall on either side, and that the one on the easterly side was between the beaten track and this cut, and that this wall was taken away in 1849 or 1850, and thereafter, until the excavation was made for the railroad, there had been no interrupting physical boundary between the beaten way and the canal, beyond the place so excavated. It appears by the evidence that on the west side of the beaten roadway, BRADLEY, J. The action was brought, and 20 feet from the edge of the embankpursuant to chapter 700, Laws 1881, to ment, was, at the time in question, a ditch, charge the defendant with liability, and to and a few feet west of that were the remains recover damages for personal injuries of the of a stone wall, and five or six feet west of plaintiff, alleged to have been occasioned by the old wall was a board fence. The beaten the negligence of the highway commission-track was 16 feet wide, and beyond, a short ers of that town. The cause of the plain-distance southerly from this place, the retiff's complaint was that the commissioners mains of old walls indicate that the boundafailed to provide any barrier along the high-ries had been about two rods apart. The orway, at the place in question, for the pro- der before referred to, made by the commistection of travel, and that in consequence of sioners in 1848, described a line by courses such failure the plaintiff, in the evening of and distances from certain monuments, and November 18, 1881, in driving along there declared it the center of a road three rods in in a wagon, fell into an excavation, and was width; but where that line was located, in injured. It was dark. The plaintiff was reference to the beaten track, does not apnot familiar with the road. He was on his pear by the evidence. The order could not way from Cuddebackvilie to Port Jervis, in have the effect to increase or change the the town of Deer Park; and, in going south-width or location of the highway from what erly down a descent in the highway, the it was before. It could be effectual only as horses he was driving, instead of following a description of the width, as manifested by the curve to the left in the beaten track, continued straight forward, and, with the wagon in which the plaintiff was riding, went over the edge of the excavation, and down about seven feet.

The main question upon the merits is whether there was any evidence to support the conclusion that the injury so occasioned to the plaintiff was attributable to the negligence of the highway commissioners. The road had been used as a highway for a great many years, although it does not appear to have been laid out as such, in the manner provided by statute. But in 1848, the road having been used as a highway for 20 years, the commissioners sought to have it ascertained, described, and entered of record in the town clerk's office, pursuant to the statute. 1 Rev St. p. 501, § 1, subd. 3. They did make an order, which was so recorded. The excavation into which the plaintiff was precipitated was made in or about the year 1870, for the purposes of the construction of the Monticello & Port Jervis Railroad, along there. Prior to that, there could have been no reasonable apprehension of danger at that point of the road to the public travel. The

the permitted use for 20 years. People v. Judges, 24 Wend. 491; Talmage v. Huntting, 29 N. Y. 447. The order itself has no material importance in this case.

The fact that this road had been used for the public travel many years, and had been recognized and treated by the constituted authorities of the town as a highway, gives that character to it, for the purposes of making the defendant responsible to a traveler upon it, for injuries sustained by him in consequence of the negligence of the commissioners in failing to keep it in suitable condition and repair. Sewell v. City of Cohoes, 75 N. Y. 45.

If the situation was such as to render the travel upon the road at the place in question dangerous, and such danger within reasonable apprehension, the duty was with the commissioners to use the means available to them for the purpose, to guard against the hazards to which the traveler was exposed. The question upon the trial, therefore, was whether the excavation was so near the wrought portion of the road as to render it dangerous to the public travel, in view of the situation there. Jewhurst v. Syracuse, 108

N. Y. 303, 15 N. E. Rep. 409. It is pre- | be obtained by those officers to make the necsumable that people may travel on the high-essary improvement at the place in question. ways in the night-time, when the beaten path The statute provides the means for raising is obscured from view. At the place in ques- annually, for the use of the highway commistion there seems to have been nothing to in- sioners of each town, the sum of $1,000. 1 dicate, in the darkness, the curvature of the Rev. St. p. 503, § 4, (Laws 1857, c. 615.) road, or to render the driver of the team sen- Also, through the action of the board of susible of the departure from it before reaching pervisors, additional money may be borrowed the place of danger. There is no complaint on the credit of the town, to repair roads and that the 16-feet track was not adequate width bridges within it. Laws 1869, c. 855; for travel. The wrought portion of highways Amended Laws 1874, c. 260. Evidence was in rural sections usually embrace but a por- given on the subject of funds, and it aption of the width within their limits. The peared by the reports of the commissioners, commissioners are required to use reasonable made at the close of nearly every year be care only. They do not insure the traveler tween 1870 and 1881, the latter inclusive, against injury. And what is such care de- that there were moneys in their hands, or pends upon circumstances. They are to be under their control, from those received in advised of dangerous conditions, or to be the preceding year, and that some of the chargeable with negligence in not having no- years money was borrowed, pursuant to the tice of them, before any liability arises. The statute referred to, for specific purposes. jury were warranted in finding that they, While there was some evidence to the effect or some of them, had been actually notified that the moneys thus reported were approof the necessity of barriers to protect against priated, the conclusion was warranted that danger persons traveling upon the road at they had funds with which to do this work, this place, and the fact that the exposed con- or may have procured them for the purpose, dition had continued there for upwards of 10 the expense of which would have been only years was sufficient to warrant the inference $25. In their applications to cause loans to that they did know, or ought to have known, be made on the credit of the town, no request that it was dangerous to public travel, if such was made for money for this work. was its character in relation to the use of the There was no error in the reception in eviroad. The question was one of fact, and the dence of the record of the order made by the conclusion was authorized by the evidence commissioners in 1848. It purported to asthat it was the duty of the commissioners to certain and describe for record a road which relieve this part of the highway of the dan- had been used by the public for 20 years. ger referred to, if they had the means to do That purpose of the order was within the it, and that in such event they were charge- provision of the statute; and nothing apable with negligence. In the cases of Hub- pears upon the face of the order to show that bell v. City of Yonkers, 104 N. Y. 434, 10 it did more than to describe such an old N. E. Rep. 858, and Monk v. Town of New road, nor had it then appeared to the conUtrecht, 104 N. Y. 552, 11 N. E. Rep. 268, trary. It is not essential to its admissibility the streets upon embankments were broad, that the order be suflicient in itself to estaband at the boundaries were gutters, curb-lish the fact, or to show power to make it. stones, and elevated sidewalks. Thus guard- Whether that were so or not might properly ed, there was no occasion for apprehension be the subject of evidence aliunde. Miller that travelers, under any ordinary circum- v. Brown, 56 N. Y. 383. The fact that the stances, would get out of the street, and over authority of the commissioners to make the the embankments. In the present case, order was not supported by the evidence subthere seems to have been no surface change, sequently introduced at the trial went only or any interruption, to warn the driver of to the effect of the order as evidence; and the passage of his team or wagon from the upon that subject the court charged the jury beaten pathway until he went over the ad- that if the commissioners, in making the orjacent embankment. der, included more than was embraced in the old road, it was entirely void.

But it is said that the commissioners had no funds which they were required to use for the protection of travel in that portion of the highway, because the work to which they should be applied was matter within the discretion of the commissioners, and that they used the money elsewhere. It is true they are to exercise their judgment in that respect; but their discretion must be reasonably exercised, else they may rest their omissions to do that, of trifling expense, which is essentially important for the safety of travel, because they may conclude, or may have determined, to otherwise expend the money, and thus furnish an excusable defense against liability in almost all cases. The conclusion was not required that the means could not

One of the commissioners, who was well acquainted with the town, was asked: "What is its character as to the necessity for highway labor?" and it is contended that the court erred in sustaining the plaintiff's objection to it. It was competent for the defendant to prove the extent and situation of the highways of the town, with a view to represent the demand upon it for the use of funds during the period in question. But this, of necessity, can properly be proved only by facts for the consideration of the jury, so far as applicable to that inquiry. The proposed question called for the mere conclusion of the witness, instead of the facts bearing upon it. It was not legitimately the subject of the

opinion of the witness, and, therefore, the | Edward C. Brooks were dealers in pork and exception was not well taken. And the same lard, as partners under the firm name of may be said of the exclusion of the answer John I. Brooks & Co. They owned real esof a question to another witness, calling for his opinion of the comparative danger of this and another place on a highway of the town. | The question of the contributory negligence of the plaintiff was one of fact, for the determination of the jury, and it was properly submitted to them. There would not necessarily have been any imputation of negligence of the plaintiff in the proposition, if so found, that the horses were running away, or were beyond his control, and therefore there was no error in the refusal of the court to charge the jury that in such case, unless the jury could say from the evidence that the accident would have occurred had the horses been going at an ordinary rate of speed, or been under control, the defendant was entitled to a verdict. While, in case the horses were beyond the control of the plaintiff, such fact may have been a proximate cause of the injury, it did not, provided the plaintiff was free from fault, relieve the defendant from liability if the danger and injury of the plaintiff, as the consequence, resulted from the negligence of the highway commissioner. In that case, there would be two proximate causes of the accident, and the responsibility would rest with the defendant, if one of such causes was attributable to the default of the commissioners. Ring v. City of Cohoes, 77 N. Y. 83.

tate paid for by the firm, and used for its purposes, which was held under deeds running to John I. Brooks and Edward C. Brooks, as grantees. On the date named Edward C. Brooks died intestate, and thereafter letters of administration were duly issued to his widow. At this date the firm had assets and liabilities, but whether it was then solvent or insolvent does not appear. After the death of Edward C. Brooks, John I. Brooks continued to use the assets of the firm in transacting a like business in the name of the firm, and acquired new assets and incurred new liabilities. The liabilities incurred and the assets acquired were treated by John I. Brooks as the property of the late firm, and as belonging to him as surviving partner. In February, 1884, John I. Brooks became indebted to the plaintiffs in the sum of $1,944.85, the price agreed upon for dressed hogs purchased in the name of John I. Brooks & Co.; but the plaintiffs knew when the goods were sold that Edward C. Brooks was dead. On the 18th of April, 1884, the plaintiffs duly recovered a judgment against said John I. Brooks for said indebtedness, on which an execution was issued and returned wholly unsatisfied, May 29, 1884. On the 3d day of March, 1884, John I. Brooks individually, and as the surviving partner of John I. Brooks & Co., executed a preferential general

The manner the horses were driven or pro-assignment to David S. Brown, who accepted ceeded to the embankment was properly the subject of consideration by the jury, as bearing upon the question of contributory negligence of the plaintiff, and was so treated by the court in the submission of that question to them. A careful examination of all the exceptions to the charge, and to the refusal to charge, and all others taken at the trial, leads to the conclusion that none of them were well taken. The judgment should be affirmed. All concur.

(116 N. Y. 487)

the trust. The assigned property consisted of (1) that owned by John I. Brooks & Co. at the death of Edward C. Brooks; (2) that acquired after the death of Edward C. by the dealings of John I. Brooks in the name of the firm; (3) that owned by John I. Brooks individually, and not acquired or used in connection with the business transacted by or in the name of the firm. The outstanding debts were (1) those incurred by John I. Brooks & Co.; (2) those incurred by John I. Brooks in the name of the firm after the death of his partner; (3) those incurred by John I. Brooks individually, but not in connection with the

HAYNES et al. v. BROOKS et al.1 (Court of Appeals of New York, Second Divi- business carried on by or in the name of the sion. Nov. 26. 1889.)

firm. The assignment conveyed all of the PARTNERSHIP-SURVIVOR-PREFERENTIAL ASSIGN-property of the late firm, and the individual

MENT.

1. The insolvent survivor of an insolvent firm can make a valid general preferential assignment of the property which belonged to the firm for the benefit of its creditors, and it is no ground of objection that the assignment includes his own individual property.

property of the assignor. It directed the assignee to pay in full 11 creditors named in Schedule A, whose claims aggregated $19,467.68 of which $11,264.83 was contracted by the firm before the death of Edward C. Brooks, and the remainder by John I. Brooks 2. An individual creditor of the surviving part-since the death of Edward C., in the name of ner cannot complain on the ground that the assignment devotes property which belonged to the firm the firm; but they were, in fact, save one, to the payment of the survivor's individual debts. renewals of obligations made by the firm beAppeal from a judgment of the general fore the death of Edward C. Brooks. After term of the first judicial department, affirm- providing for the payment in full of said preing a judgment which dismissed the com-ferred creditors, the assignment provides plaint, with costs, and was entered on the decision of a special term. For several years before September 9, 1883, John I. Brooks and 1Affirming 42 Hun, 528.

that "the said party of the second part (the assignee) shall pay and discharge all the other debts, demands, and liabilities whatsoever, now existing, whether due or to become due, against the said firm of John I. Brooks &