though not served, and also the agents and attorneys of parties having like knowledge of the granting of the order, though it was imperfectly or irregularly served. Abell v. Railroad Co., 18 Wkly. Dig. 554, affirmed, 100 N. Y. 634; Koehler v. Bank, 6 N. Y. Supp. 470, affirmed, 117 N. Y. 661, 22 N. E. Rep. 1134. The same result must follow in a case where the agents and servants have been actually served with the order, though the plaintiff had not been able to serve the summons or any other paper upon the defendant himself. The order appealed from should be affirmed, with costs. All concur.

(126 N. Y. 507)

THACHER V. HOPE CEMETERY ASS'N. (Court of Appeals of New York. June 2, 1891.) CEMETERIES-CERTIFICATES-LIMITATION OF AC

TIONS.

Laws N. Y. 1860, c. 163, § 4, relating to the organization of cemetery associations, after providing for issuing certificates for borrowed money, provides that nothing contained in the act shall be construed to create a lien on lots in the cemetery limits, nor any other liability against the association issuing the certificates, "than may be necessary to enforce the faithful application of the proceeds of sales in the redemption thereof." Held, that such certificate, whereby the association agreed to apply a certain portion of the proceeds of sales of lots to the payment of such debt, did not render it a trustee of such proceeds for the lender, and that the statute of limitations began running from the time proceeds of sales applicable to the payment thereof were received by the association, whether the remedy thereon were legal or equitable. Reversing 9 N. Y. Supp. 953.

Appeal from supreme court, general term, fifth department.

James H. & C. W. Stevens, for appellant. Wesley Brown, (A. S. Kendall, of counsel,) for respondent.

EARL, J. Otis Thacher died on the 14th day of March, 1868, leaving a will appointing the plaintiff executor thereof. The will was admitted to probate on the 6th day of May thereafter, and letters testamentary thereon were then issued to the plaintiff. Many years afterwards, on the 5th day of October, 1883, he brought this action to enforce the payment of the money mentioned in a certificate issued by the defendant, of which the following is a copy: "Hope Cemetery Association. No. 25. We certify that Otis Thacher has this day loaned to the Hope Cemetery Association three hundred dollars. It is agreed upon the part of the said association that one-half of the receipts from the sale of lots shall be applied exclusively to the payment of the sum of twenty-five hundred dollars loaned to the association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon, said interest to be payable annually, and the receipts to be so applied shall be distributed on the 1st day of July and the 1st day of January in each year, until said sum shall be fully paid. August 1, 1864. A. L. SMITH, President. M. ADSIT, Treasurer." Early in August, 1864, by this certificate and other certifi cates issued to other persons, the defendant borrowed about the sum of $2,200,

and out of the money so borrowed it paid, for land purchased of Otis Thacher, the sum of $1,527.75, and the balance of the money it used for improving its cemetery, and for its other general purposes. The land so purchased was divided into cemetery lots to be sold, and it was the onehalf of the receipts of the sales of such lots which were to be applied on the certiticates. The court at special term found that the proceeds "of sales of lands conveyed by the defendant in lots sufficient to pay the certificate in question, and applicable to the payment thereof, were received by the defendant more than ten years prior to the commencement of this action." Upon that finding the defendant claims that the plaintiff's cause of action upon the certificate was, at the time of the commencement of this action, barred by the statute of limitations. The court further found "that the plaintiff did not, nor did his testator, have actual knowledge, for more than ten years before the commencement of this action, of the facts in regard to the receipt of money from the sale of lots by the defendant out of which receipts the plaintiff's right of action here depends; nor did either of them have such knowledge more than six years before the commencement of this action;" and upon that finding it based its conclusion that the cause of action was not barred by the statute. From the opinion of the court below, and from the argument of the counsel for the plaintiff, it appears that the court reached the conclusion that the cause of action was not barred by the statute, because it held that, by the terms of the certificate, the defendant became a trustee of the moneys received from the sale of lots for the benefit of the plaintiff and other holders of certifi cates, and that, therefore, the cause of action did not accrue until the plaintiff demanded, "or ought to have demanded, an accounting and application of his distributive share, or the defendant in some way denied the plaintiff's right, so that its holding of the money became adverse." It appears to be conceded that this recovery cannot be upheld against the defense of the statute of limitations, except by holding that the defendant, in some way, became the trustee of the plaintiff and other holders of certificates, and that the statute could not be set running until, in some way, it repudiated or refused upon demand to perform the trust. If we consider this certificate without reference to the statute governing the defendant, we think it impossible to read it as creating a trust of any kind. It is not entirely clear that it does not create a general obligation against the defendant to pay the $300 borrowed. But we will assume that it did not, and that the only obligation of the defendant was to pay the $300 and interest at the times mentioned out of moneys received from the sale of lots. The real estate belonged absolutely to it. and the moneys received from the sale of lots also belonged to it. They did not in any sense, legally or equitably, become the moneys of the holders of the certificates. If, after the moneys were received, they had been absolutely lost without the fault

It

of the defendant, the loss would have fallen upon it, and not upon the holders of the certificates. It cannot well be claimed that, if the defendant had been an individual, and had received this money, and refused to apply it, he would have been liable to arrest, under section 549 of the Code of Civil Procedure, on the ground that he had received the money in a fiduciary capacity, and had embezzled or misapplied it. Nor would he have been guilty of grand larceny, under section 541 of the Penal Code, for receiving money as a trustee, and withholding or misappropriating the same. The sole obligation assumed by the defendant by the execution of the certificates was to apply the money received from the sales of lots as therein specified, and when it failed to so apply them it became liable to an action for a breach of its contract obligations. was obliged to apply the money so received semi-annually, and the instrument must be treated, as to its legal effect, as if it had been payable in semi-annual installments; and, for default in the payment of any installment, an action could at once have been brought to recover the amount due for such installments, and when all the installments became due, as they did more than 10 years before the commencement of this action, then the entire amount specified in the certificate was due, and an action could then have been brought against the defendant to recover the whole amount thereof, and an ordinary action at law is the proper remedy in such a case. Mills v. Mills, 115 N. Y. 80, 21 N. E. Rep. 714. But even if, from facts peculiar to the case, an equitable action could have been commenced then, as against the statute of limitations, it was necessary to commence it within 10 years from the time the cause of action accrued. If this had been an agreement to take the plaintiff's money, and hold and apply it as expressed in the certificate, or the money of some other person, the relation of a trustee might have been created. But here the agreement was to apply the defendant's own money to the payment of its own debt, and we know of no principle of law which will allow us to hold that in such a case a trust has been created. One may agree to set apart and hold one-half of his income and pay it to his creditor; or he may agree to set apart and hold and pay one-half of the proceeds of the sale of specified real or personal property to the payment of his debts; and yet in such cases he would only create a general personal obligation to perform his agreement, and for a breach of it a recovery could be had as for a breach of any other contract; and, even if an equitable action could in some way be commenced to reach the money in the hands of the promisor, it would be needful to prove that the money was in his hands, and that the action had been commenced within 10 years after a right to bring it had accrued.

We have thus far considered this certificate without reference to the statutes governing the defendant. It was organized under the act chapter 133, Laws 1847, and acts amendatory thereof; chapter 280, Laws v.27N.E.no.12-66

1852; chapter 122, Laws 1853; chapter 163, Laws 1860. It is claimed on behalf of the defendant that this certificate was not issued in pursuance of or in conformity with those acts, and hence that it is in no way governed by them. Without particularly referring to their provisions, we will assume, as contended by the plaintiff, that, with the exception that the certificate was unsealed, it was issued in accordance with those acts, and that, therefore, it is one of the certificates provided for in the acts. Section 4 of the act of 1860 provides as follows: "Nothing in this act contained shall be construed to create a lien upon lots or plats belonging to individual proprietors within the cemetery limits, nor any other or greater liability against the association or trustees issuing said certificates than may be necessary to enforce the faithful application of the proceeds of sales in the redemption thereof in the manner aforesaid." The effect of this section is that, by issuing these certificates to be paid out of moneys received from the sale of lots, no lien was created upon cemetery lots owned by individuals, and that no other or greater liability was incurred by the defendant or its trustees in issuing the certificates than was necessary "to enforce the faithful application of the proceeds of sales in the redemption" of the certificates. To understand the force of this section, it is necessary to ascertain the obligation assumed by the defendant by the terms of the certificate under the statute. That was not a general obligation to pay the certificate, but to pay it only out of the proceeds of moneys received from the sale of lots. If it never received any money from the sale of lots, it could not be compelled to pay any upon the certificates. If it did not receive money enough from that source to pay all the certificates, it could be required only to apply such money as it received. If it received money enough to pay them all, then it was required to apply it in paying all; and, for a failure to so apply it, by what form of action could payment be enforced? It would be sufficient to commence an action, as we have above stated, for a breach of its obligation, and thus a recovery from it could be had for the money which it ought to have applied. It can. not be said that an action in equity was absolutely necessary. There might be circumstances and complications which would render such an action necessary, but ordinarily an action at law would be sufficient, in which the holder of a certificate could recover by showing that the defendant had received money which it ought to, but had not, applied. But, even if an equitable action was necessary against the defendant, the right to that action certainly accrued, as to the whole amount due upon the certificates, when sufficient money had been received from the sale of lots to pay the whole, according to the terms of the certificates; and that was more than 10 years before the commencement of this action. Therefore, taking any view of this case justified by the law and the facts, whether the remedy of the plaintiff be legal or equitable, his cause of action was barred, and his com

plaint should have been dismissed. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.

(126 N. Y. 544)

WHITTAKER V. DELAWARE & H. CANAL CO. (Court of Appeals of New York. June 2, 1891.) INJURIES TO SERVANT-NEGLIGENCE-EVIDENCEQUESTION FOR JURY.

1. In an action against a railroad company for causing the death of a fireman, the evidence showed that the death was caused by a collision between the train on which he was working and an engine standing on the main track in defendant's yard, that there was a rule against leaving engines standing on the main track, but that this rule had been systematically violated for at least a year. Held, that the question of defendant's negligence should have been submitted to the jury, since it was its duty, not only to make proper rules, but to enforce them.

2. The evidence also showed that the train on which the fireman was engaged was running at the rate of 7 to 10 miles an hour; that it was running into the yard a little ahead of time, pursuant to orders; that there was no visible light on the other engine; and that it was not seen until the train was within 60 or 70 feet of it, when there was not sufficient time for the fireman to escape. Held, that the question of contributory negligence should have been submitted to the jury.

Affirming 11 N. Y. Supp. 914.

Appeal from supreme court, general term, fourth department.

Edwin Young, for appellant. Marshall, for respondent.

Louis

RUGER, C. J. The appeal in this case was taken by the defendant, upon the usual stipulation, from an order of the general term reversing a judgment dismissing the complaint, and directing a new trial. The complaint was dismissed by the trial court upon the ground that the evidence failed to show negligence on the defendant's part, and also that the plaintiff did not show that his intestate was free from contributory negligence. Upon appeal to the general term, they held that there was evidence sufficient to support a verdict for the plaintiff on both grounds, and that the direction of a verdict by the trial court was therefore erroneous. We agree with the conclusion reached by the general term. There was evidence in the case from which the jury could properly have found that the injuries received by plaintiff's intestate were occasioned by the negligence of the defendant. The proof showed that the accident occurred in the night-time, in the defendant's railroad yard at Quaker street, through a collision between an incoming freight train, upon which the plaintiff's intestate was employed as fireman, and an engine left standing on the main track of the defendant's road, in violation of the rules of the company, by its engineer while he was waiting in the office near by for orders. It is claimed by the defendant that the presence of the stationary engine on the track was due to the fault of its engineer, who placed it there in contravention of a rule of the company forbidding its employes from placing engines and cars on the main track, except under orders. It is conceded that this engineer had no or

ders to go upon the main track with his engine, and it is therefore claimed that, the accident having occurred through the fault of a co-servant, the company is not liable. There was evidence in the case to show that this engineer and others, for a period of at least one year, had been in the habit of disobeying this rule of the company, and violating its requirements, by placing their engines upon the main track at Quaker street. and leaving them there while awaiting orders. This practice had been so frequently indulged in, and had continued for such a length of time, that the jury were justified in finding that it had come to the knowledge of the railroad company, and was pursued by their acquiescence, or as the result of a want of vigilance in supervising the management of their road. A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants, but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. Railroad Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. Rep. 932; Chapman v. Railway Co., 55 N. Y. 579; Baulec v. Railroad Co., 59 N. Y. 356. Neither is its duty in respect to the employment of servants satisfied by the hiring of capable and competent persons in the first instance; but it is also required that they should exercise such an oversight and supervision of such servants that, if they afterwards become habitually, notoriously incompetent, or unfit, from carelessness or bad habits, to perform their duties, this incompetency, if long continued, should be discovered and guarded against. Laning v. Railroad Co., 49 N. Y. 521. It is not necessary that this incompetency should be brought to the personal knowledge of the master; but, if it continues for such a length of time as that a careful and diligent supervision of its business ought to bring it to its knowledge, it is chargeable with notice of its existence. It was said in Gilman v. Railroad Corp., 10 Allen, 233, approved in the Laning Case, that "this care he [the master] can and must exercise, both in procuring and keeping and maintaining such servants, structures, and engines. If he knows, or, in the exercise of due care, might have known, that his servants are incompetent, or his structures or engines insufficient, at the time of procuring them, or at any subsequent time, he fails in his duty. For the management of his machinery and the conduct of his servants he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes injury to those in his employ. The rule in reference to constructive notice is well expressed in the case of Hilts v. Railway Co., 55 Mich. 437, 21 N. W. Rep. 878, as follows: "A master who retains an incompetent servant in his employment, after knowledge comes to him of the unfitness of the servant for the

service in which he is engaged, or of whose unfitness he might have known by the exercise of due diligence or ordinary care, is liable for injury to another servant caused by the negligent acts of the incompetent servant."

In view of these rules, it was clearly error to take this case from the jury, unless there was also evidence from which the jury were, as matter of law, authorized to find contributory negligence on the part of the plaintiff's intestate. So far from this being the case, we are of the opinion that the undisputed proof showed that he was free from negligence. The material evidence on this question was given by the engineer in charge of the freight train, and he testifies that he received orders at Cobleskill, the last station before reaching Quaker street, to run into the yard at that place in advance of his schedule time; that he was accordingly a few minutes ahead of time with his train, and was running, at the time he entered the yard, at the rate of from 7 to 10 miles an hour; that the night was dark and foggy, and it was impossible to see a dark stationary object on the track in time to avoid a collision with it; that he gave the usual sig. nal about half a mile from the yard, by a sharp whistle, of the approach of his train, and rang his bell continuously; that he kept a sharp lookout for objects on the track ahead of him as he ran into the yard, and saw nothing; that the stationary engine had no light upon it that could be seen, and he did not see it until he arrived within 60 or 70 feet of the engine, when it was discovered by the reflection of his own head-light upon it. He further testified that the last he saw of Whittaker he was getting coal from the tank to throw into the furnace. This was immediately after he saw the engine, and there was then not sufficient time to ena ble either Whittaker or himself to escape from the train. It is quite difficult to see what measures either the engineer or Whittaker could have taken to avoid the collision. They were under orders to run into the yard in advance of time, and had a right to assume that the defendant had taken such precautions as would relieve them from any hazard of a collision in running into the Quaker-Street yard. They were both engaged in the discharge of their customary duties, and exercised all of the precaution in entering the yard that was required by the obligations of ordinary prudence and care, and are not justly chargeable with negligence in running into the yard as they did. The only suggestion of any want of care on their part is predicated upon the assumption that the train was running at a prohibited rate of speed.

It is claimed that there is proof in the case that trains are prohibited from running through a yard at a greater rate of speed than four miles an hour. No such rule was introduced in evidence, but there was a rule proved that "all engines must approach and pass all stations cautiously, whether they are to stop or not." One of the railroad employes did, however, testify that he had previously sworn that a train could not run past a station at a

greater rate of speed than four miles an hour. Assuming, however, that there was evidence of such a rule, it is not certain that the rate of speed of the incoming train was the cause of the accident. It is perfectly obvious that, whatever the rate of speed, whether four or seven miles an hour, a collision with the stationary engine on the same track was inevitable, and the danger to those exposed to its effect unavoidable. It is therefore quite immaterial whether the fireman was chargeable with the engineer's carelessness or want of skill or not, as it was quite certain that the jury could, upon the evidence, find that there was no such want of care and caution in running the freight train as contributed to the accident.

We think, in view of all of the facts in the case, that it was the duty of the trial court to have submitted the case, on both of its branches, to the jury, and that it erred in withdrawing it from them. The order of the general term should therefore be affirmed, and judgment absolute ordered for the plaintiff, with costs. All concur, except PECKHAM, J., not voting.

(127 N. Y. 350)

MCNALLY v. CITY OF COHOES. (Court of Appeals of New York, Second Division. June 9, 1891.)

MUNICIPAL CORPORATIONS-ICY SIDEWALKS-NO

TICE.

in an action for injuries received by plaintiff by falling on an icy sidewalk in defendant city, there was evidence that ice had been on the walk for about three weeks; that there had been sleet a few days before the accident, after which the weather turned cold; that defendant's superintendent of streets had been seen to pass over the walk 10 or 12 days, and again about a week, before. He testified that when he passed over the walk there was ice on it, but covered with ashes. Plaintiff testified that the ice extended almost the entire width of the sidewalk, and for about five feet in length. Held, that the evidence did not show actual notice of the condition of the walk on the part of defendant's superintendent of streets, within Laws N. Y. 1881, c. 183, requiring actual notice to be given him in order to render defendant liable. Affirming 6 N. Y. Supp. 842. POTTER and VANN, JJ., dissenting.

Appeal from supreme court, general term, third department.

Matthew Hale, for appellant. D. Cady Herrick, for respondent.

HAIGHT, J. This action was brought to recover for personal injuries sustained by the plaintiff in falling upon a sidewalk in the city of Cohoes on the 7th day of February, 1885. The statute provides that "the city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk, or crosswalk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous, or obstructed condition of said street, highway, bridge, culvert, sidewalk, or cross-walk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twen

ty-four hours previous to such damage or injury." Laws 1881, c. 183. Prior to the passage of this act, the liability of the municipality could be established by showing constructive notice; and the evident purpose of the act was to prevent a recovery unless actual notice be shown. The words "shall have been given" are used, but it is not specified how or in what manner notice shall be given. The word "notice, as used in this connection, imports information, intelligence, or knowledge. If the defendant's superintendent had actual information, intelligence, or knowledge of the defective, unsafe, or dangerous condition of the sidewalk, it would seem to answer the requirements of the statute. Actual notice may be established by evidence, either direct or circumstantial, the same as any other fact. The trial court appears to have been of the opinion that the evidence did not justify a finding that defendant's superintendent had actual knowledge of the condition of the sidewalk at the time of or the place where the plaintiff fell. It therefore becomes necessary to determine whether the evidence is of that character which requires a reversal. The plaintiff tells us that she was upon the sidewalk upon Factory street; that it was covered with a glare of ice its entire width up to within a foot of the building, and that it extended lengthwise of the walk about five feet; that she saw it, stopped, and looked at it, then stepped upon it, and, after walking about three feet upon the ice, she slipped and fell, breaking her wrist. Evidence was given tending to show that ice had been upon the walk for about three weeks; that on the 4th and 5th there was rain, snow and sleet, turning cold on the morning o the 6th, the temperature going down below zero; that the defendant's superintendent had been seen to pass over the walk 10 or 12 days before the accident, and again about a week before. He was then called as a witness on behalf of the plaintiff, and himself testified that he had passed through the street several times before the accident, but did not remember the dates,- thinks he may have passed through the street after the first of the month; that when he passed through the street there was ice upon the sidewalk, the same as on every other walk in the city; that the ice was covered with ashes on that part on which the people trav eled. This is the evidence, in substance, bearing upon the question of actual notice. It will be observed that it fails to show any knowledge on the part of the superintendent as to the condition of the walk after the rain and sleet on the 5th, and the freezing on the morning of the 6th. We do not understand his testimony to be controverted; and if, as testified by him, the walk was covered with ashes prior to the storm of the 4th and 5th, it is quite apparent that there was a material change in the condition of the walk thereafter, rendering it dangerous, if it was as described by the plaintiff at the time of her fall on the morning of the 7th. Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642, and Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. Rep. 186.

INSTRUCTIONS

WEIGHT OF EVIDENCE-Tender-
SUFFICIENCY OF.

1. In an action for money advanced on an alleged verbal contract, whereby plaintiff was to receive certain bonds in case certain franchises were obtained, and was to be refunded the money on demand, in case he became dissatisfied, a charge that "letters and written correspondence between the parties, shortly after the contract was made, are of more weight in deciding what the contract was than evidence as to verbal admissions at a later date," is properly refused, where there is evidence that at the time of writing and receiving the letters, etc., plaintiff understood that the franchises had been obtained, which was not the case.

2. In such action, where defendant has refused to refund the money on plaintiff's demand, it is sufficient to tender to defendant a certificate for bonds issued by him to plaintiff, at the trial, if the certificate is valueless.

Affirming 6 N. Y. Supp. 247.

Appeal from judgment entered upon order of the general term of the supreme court in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff. The action was brought to recover $10,000, alleged to have been advanced by the plaintiff to the defendant to be used in the promotion and construction of a cable railway in the city of New York, upon the promise of the defendant to repay the amount on demand. The demand and refusal are alleged and by the answer admitted. The other allegations of the complaint are denied.

Everett P. Wheeler, for appellant. ALmon Goodwin, for respondent.

BRADLEY, J., (after stating the facts as above.) The plaintiff delivered his check, drawn upon the Metropolitan Bank of Cincinnati, to the defendant, bearing date September 3, 1885, for $10,000, payable to the order of the latter. The check was afterwards deposited for collection, collected, and its proceeds placed to the credit of the defendant in a bank in the city of New York. The controversy between the parties has relation to the agreement or understanding pursuant to which this check was given to and received by the defendant. The latter was then president of the New York Cable Railway Company, in behalf of which efforts were then being made by its promoters to obtain franchises to enable it to construct cable railways in certain streets of the city of New York; and, unless such rights were procured, the purpose of the company would substantially fail and be defeated. The evidence on part of the plaintiff tended to prove that, at an interview between him and the defendant, the latter