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railroad train moving at the rate of four to six miles an hour, and that the question did not become one of fact by the conductor's calling out to him to get on. That it was a dangerous and hazardous attempt, the court said, must be the judgment of all men; that persons are taught, from their earliest youth, the great danger attending an attempt to board or leave a train while in motion; and that no person of mature years aud judgment but has the knowledge that such an attempt is dangerous in the highest degree. But the court said that there may be cases in which such an attempt would not be regarded as negligence as matter of law, and where the question of negligence, upon all the facts in the case, should be submitted to the jury, and referred to Filer v. Railroad Co., 49 N. Y. 47, as such a case. In Soloman v. Railroad Co., 103 N. Y. 437, it is said that the rule established by the decisions is that it is presumptively a negligent act for a passenger to attempt to alight from a moving train, and that it is not sufficient to rebut the presumption that the trainmen acquiesced in the action of the passenger, nor that the company violated its duty or contract in not stopping the train, nor that to remain on the train would subject the passenger to trouble or inconvenience; but that to excuse such an act, and free the passenger from the charge of contributory negligence, there must be a coercion of circumstances that did not leave the passenger in the free and untrammelled possession of his faculties and judgment. And the court went on to say that although negligence is usually a fact for the jury, yet the inference of negligence in a given case may be so strong and convincing that the judge may direct a verdict; that the conclusion that it is prima facie dangerous to alight from a moving train is founded on our general knowledge and common experience, and that it is akin to the conclusion, now generally accepted, that it is in law a dangerous, and therefore a negligent act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In Morrison v. Railway Co., 56 N. Y. 302, it was held that the question whether a person has been guilty of contributory negligence, in attempting to alight from a car in motion, is not in every case a question of fact for the jury; that when the facts are undisputed, the question of contributory negligence may become a question of law, and it was held to be such in that case. Folger, J., in delivering the opinion of the court, said: "Can it be said that a person of ordinary care and prudence would have swung himself from a car in motion down to the ground in the dark, laden with the weight of a child twelve years old, having but one hand and one arm to aid himself with, when there was no other danger to be avoided by meeting this, and no incentive to the act other than the inconvenience of being carried by his place of abode, and with a full apprehension of the danger he was about to incur? I think not, and am of the opinion that it is so clear that the law and this court should have answered without calling in the aid of the jury." Gavett v. Railroad Co., 16 Gray, 501, is to the same effect. There it appeared that after the train started and was in motion, the plaintiff either passed out of the door, and was on the platform of the car for the purpose of attempting to leave it, or was actually stepping from the platform of the car upon that in front of the station. While thus situated she was thrown from the car and injured. The court said that it could not be doubted that the well-known hazards of travelling on railroads, and the unprotected and exposed situation of persons standing on the platform of a car, or attempting to leave it when the train is about to start or is actually in motion, render it unsafe for passengers to place themselves in such a position, and preclude the idea that due care can be exer

cised under such circumstances. So, riding with one's arm or elbow projecting out of the car window, whereby it is injured, is negligence per se, and precludes recovery. Todd v. Railroad Co., 3 Allen, 18. In Railroad Co. v. Watson, 114 Ind. 20, it is said that if from the facts, only one inference can be drawn, and that is that there was negligence, it must be adjudged as matter of law, or conversely if it can be clearly affirmed as matter of law that there was no negligence the court must so declare. In Seefeld v. Railway Co., 70 Wis. 216, it is held that when the facts are undisputed, and admit of no doubtful or opposing inferences, the question of negligence is one of law. Many other cases of like import might be cited, but these are quite sufficient to establish the proposition above laid down, namely, that when the standard of negligence is not prescribed, and there is a combination of facts and circumstances relied upon to show negligence, the question becomes one of law only, when those facts and circumstances are so decisive one way or the other as to leave no reasonable doubt about it no room for opposing inferences.

This brings us to consider whether, as matter of law, it was prima facie negligence for the plaintiff to be riding on the platform or the step, as shown by the case. He was standing either on the second step or on the edge of the platform, with his back to the saloon window, holding on to the iron at the end of the car. There were notices on the car doors forbidding persons to stand on the platform. The platform was full, and two small boys stood on the steps below him. The train was running at the rate of about thirty miles au hour, at the lowest estimate. Plaintiff's testimony tended to show that it was running much faster than that, and was swaying and jolting badly. There is nothing to show that the plaintiff was not an intelligent man, and in the full possession of his faculties. Add to this the well-known fact that in this State railroads must be built with many and sharp curves, which cause fast-running trains to sway and lurch considerably, however good the track, thereby greatly increas ing the danger to one riding on the platforms or steps of cars, or being jolted or thrown off, and can it be doubted that the position the plaintiff occupied was, in the circumstances, one of danger and hazard? We think not, and because it was one of danger and bazard, it was prima facie negligence for him to occupy it.

But the plaintiff claims that the cases, especially in New York, are to a different intent, and hold that it is not prima facie negligence to ride on the platform of steam-cars, and among others refers to Willis v. Railroad Co., 34 N. Y. 670, and Werle v. Same, 98 id. 650. But we hardly think it is the law of New York that in no circumstances is it prima facie negligence for a passenger to ride on the platform of steam-cars. To be sure, in those cases it was held not to be such negligence for the plaintiffs to ride on the platform in the circumstances disclosed. In Willis' Case it was not necessary to say any thing about it, for his position neither caused nor contributed to his injury. But still the court said it was not prima facie negligence for him to be riding on the platform. And in Nolan v. Railroad Co., 87 N. Y. 63, it is said, obiter, that the rule is settled that it is not, even in the case of steam-cars, negligence per se for a passenger to stand on the front platform of a moving car. In Werle's Case the court said that while the evidence as to many of the facts was conflicting, it thought there was nothing proved from which the court had a right, as a question of law, to attribute contributory negligence to the deceased, and that the whole case presented simply questions of fact for the consideration of the jury. The fair inference from this is that the court thought there might be a state of facts shown in such a case that would make the question of negligence one of law. In Graville v.

Railroad Co., 105 N. Y. 525, it is said to be unsafe, as matter of common knowledge, for a passenger to ride on the platform of a running train, and in Clark v. Railroad Co., 36 N. Y. 135, it was held to be prima facie negligence for a passenger to ride on the steps of a horse-car, and it was laid down as a principle of law, that when it appears that a passenger was riding upon a car in a place of danger, his negligence is prima facie proved, and that the onus is on him to rebut the presumption. In Nolan's Case it is said, referring to the case last cited, that riding on the steps of a horse-car is a position palpably more dangerous than riding on the platform. But we submit that it is no more dangerous than riding on the platform of a steam-car when the train was in rapid motion. And in Connolly v. Ice Co., 114 N. Y. 104, it is said that the fact that a passenger on a horse-car stands on the outer platform, when there is opportunity to take a seat in the car, mnight, in an action against the railroad company to recover damages for its negligence, constitute a defense in ordinary circumstances. Hence we conclude that in some circumstances it might be held in New York that riding on the platforms of steam-cars was prima facie negligence. But if the law of that State is otherwise, we are not disposed to follow it. In Massachusetts the law is, as a general proposition, that standing on the platforms of steam-cars when the train is in motion is prima facie negligence. In addition to Gavett's Case, already referred to, we refer to Hickey v. Railroad Co., 14 Allen, 429. That was a much stronger case for recovery than the one at bar, and yet the defendant had judgment. There the deceased had been riding in the smoking-car, and just before it was uncoupled to let the rest of the train run slowly into the station, he left it, and, with other passengers, stepped upon the platform of the passenger-car in the rear of it, with the intention of riding to the station in that position. The passenger-car was going about five miles an hour, and ran against the smoker, which had been thrown across the track by a misplaced rail and switch, whereby the deceased received injuries from which he died. The court said that if an injury happens while the passenger is occupying a place provided for the accommodation of passengers, nothing further is ordinarily necessary to show due care; but that when the plaintiff's own evidence shows he had left the place assigned for passengers, and was occupying an exposed position, and that the injury was due in part to the fact of such position, he must necessarily fail, unless he can also make it appear, upon some ground of necessity or propriety, that his being in that position was consistent with the exercise of proper care and caution on his part, and as the plaintiff in that case had no testimony tending to show proper care on the part of the intestate a nonsuit was entered. Although the court does not say in so many words that the deceased was prima facie negligent as matter of law, yet that is precisely what the case comes to; and the fact that there was room inside does not touch that question, because the presumption of negligence arises from the position itself, as it is a dangerous position, and not one provided for passengers to occupy while the train is in motion. The necessity or propriety of his being there is an element that comes in later, and for the purpose of rebutting the presumption of negligence, but if it cannot be shown, the presumption remains, and precludes recovery, if the negligence was contributory.

In Treat v. Railroad Corp., 131 Mass. 371, the plaintiff, on the whole case, did not appear to be one who at his own risk had voluntarily assumed an exposed position not intended for passengers, and therefore the question of contributory negligence was properly left to the jury. Zemp v. Railroad Co., 9 Rich. Law, 84, referred to by plaintiff, is not authority for him. There the plaintiff was standing on the front platform of the

rear passenger-car at the time of the injury, which was occasioned by the overturning of the engine when the train was moving from five to eight miles an hour. The whole case depended upon whether the injury was attributable to plaintiff's want of care. The court said that plaintiff's position at the moment of the accident was wrong, but that the proximate cause of the injury was the overturning of the engine; that plaintiff's being on the platform did not necessarily subject him to injury in an overturn, any more than if he had been in the car; but that if he had fallen off the platform when the train was in motion, then he would have been obliged to bear his injury, for then his own act would have been as much the proximate cause as the defendant's negligence. Railroad Co. v. Hoosey, 99 Penn. St. 492, is much in point. There the plaintiff below was a passenger on an excursion train of many cars, which were overcrowded, and the plaintiff and many others were unable to find seats. After searching for a seat, and finding noue, plaintiff took a position quite near the edge of the rear platform of one of the cars, and stood with his back to the end window of the car, and rode there, the cars being in rapid motion, till he was jolted off and injured. The court said that he was not only in a position of known danger, but was there voluntarily, and against the rules of the company; that having shown, by his own testimony, that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself, it was incumbent on him to show that he was there from necessity and not from choice; that the dangerous position on the platform in which he voluntarily placed himself while the cars were in rapid motion was undoubtedly the immediate cause of his being jolted off; that if there had been any testimony from which it could have been reasonably inferred that he was there from necessity, and not from choice, it would have been a question for the jury; but that in the absence of such evidence, it was error to leave it to the jury to determine whether he was or was not guilty of contributory negligence. The plaintiff was the only person on the train who was injured, and the court said that he ought to have submitted to the inconvenience of standing in the cars. Thus it is seen that on the authorities, it is clearly maintainable that riding on the platform of steam-cars, in the circumstances disclosed in the case in hand, is prima facie negligence as matter of law. The plaintiff was the only person on the train who was injured, and that the position in which he was riding materially contributed to his injury is not and cannot be questioned.

It remains to consider whether the testimony tended to show that the plaintiff was riding on the platform or the step, whichever it was, for a reason that freed him from the imputation of negligence. His claim was, as shown by the charge and his testimony, that the passage where he stood after giving up his seat was crowded; that most of those in his vicinity were ladies; that the swaying and jolting of the cars were such that his position was one of discomfort to himself, and of evident discomfort and annoyance to others, and that in consequence of this he concluded to go to the smoking-car. He testified, that after taking his position on the platform or the step, he thought he would stay there a few minutes, and then go back into the car he had left. Thus it appears that the plaintiff had standing room in the car, which he might have continued to occupy, but which he chose to leave in order to free himself from discomfort, and others from discomfort and annoyance, and that he remained on the platform or the step in order to obtain temporary relief from that discomfort, intending in a short time to resume his former position in the car, which he might have done. But passengers, especially on excursion trains, must expect more or less discomfort,

and must endure it, rather than assume positions of danger and hazard, not provided for their occupancy, for the purpose of avoiding it. Necessity alone can warrant the assumption of such positions. If they are assumed as matter of choice, and they contribute to injury, there can be no recovery. But what would

constitute necessity in such cases is not easy to say. It may perhaps be safely said in a case like this, when nothing is said or done by those in charge of the train to control or influence the conduct of the passenger, that the attendant circumstances must be such as not to leave the passenger free to choose, such as to coerce his action, and to compel him to assume the position as the best he could do at the time, acting as a careful and prudent man. The testimony in this case did not tend to show any such coercion of circumstances-any such compulsion-and therefore the case is that the plaintiff was riding as matter of choice, and not of necessity, in a dangerous place, not provided for the occupancy of passengers, which contributed to his injury, hence the court should have directed a verdict against him.

The record discloses another error. The court submitted to the jury, as one element bearing on the question of defendant's negligence in operating the train, the fact that there were but two brakemen upon it, although there was nothing tending to show that the train was in any respect improperly operated for lack of brakemen. It is a familiar rule that it is not proper to submit to the jury an issue that the testimony does not raise. There are no other points of exception that we deem it important to consider.

TAFT, J., would render a final judgment for the defendant, but the rest of the court would remand, as the issues joined to the jury stand undisposed of on the record, and upon them the plaintiff has a right, and may desire, to introduce additional evidence, and we cannot say that no such evidence exists.

Judgment reversed and cause remanded.

START and THOMPSON, JJ., did not sit, having been of counsel.

NEW YORK COURT OF APPEALS ABSTRACTS.

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EVIDENCE

APPEAL REVIEW EXCEPTIONS. PAROL TO EXPLAIN WRITING.-(1) Where no exception is taken to the findings of a referee it cannot be urged as error that they are unsupported by evidence. (2) An exception "to the refusal of the referee to find each of the several conclusions submitted to the referee by the said defendant, so far as the referee's conclusions are not in conformity therewith," is not sufficiently definite to present a question for review. Newell v. Doty, 33 N. Y. 83; Ward v. Craig, 87 id. 550. (3) Where parol evidence in regard to a written instrument is introduced by plaintiff without objection, and parol evidence in contradiction is offered by defendaut, an objection to evidence on that subject in rebuttal on the ground that it is an attempt to prove the contents of a written instrument by parol, without moving to strike out all the testimony on that subject, should be overruled. (4) In an action for money lent parol evidence that the loan was made by plaintiff giving defendant a written order on a third person is admissible where the order was given twelve years before, and the defendant denied having received it, since the order itself is merely a collateral matter. Grover v. Morris, 73 N. Y. 479; Chrysler v. Renois, 43 id. 212; Bowen v. Bank, 11 Hun, 226; McFadden v. Kingsbury, 11 Wend. 668; Jackson v. Root, 18 Johns. 60. Second Division, Feb. 9, 1892. Daniels v. Smith. Opinion by Parker, J. 8 N. Y. Supp. 128, affirmed.

ASSIGNMENT FOR CREDITORS-FRAUDULENT PREFERENCE-KNOWLEDGE OF ASSIGNOR.-(1) An assignment executed by a firm for the benefit of creditors, after preferring certain firm liabilities, directed the residue of the assigned estate to be applied to the pay. ment of all debts and liabilities now due, or to grow due, from the said parties of the first part (assignors) together or respectively. Among the alleged preferred firm debts were certain individual debts of one of the partners improperly inserted therein by the general manager of the firm, husband of one of the partners. Held, that the payment of firm debts not having been provided for before payment of individual creditors, the assignment was fraudulent and void. Wilson v. Robertson, 21 N. Y. 587; Crook v. Rindskopf, 105 id. 476, distinguished. Jan. 20, 1892. Boos v. Marion. Opinion by Peckham, J.

ATTORNEY AND CLIENT SETTLEMENT BETWEEN PARTIES-RIGHT OF ATTORNEYS.-The Code of Civil Procedure, section 66, declaring that an attorney shall have a lien upon his client's cause of action or counterclaim, which shall attach to a judgment in the latter's favor, and that this lien shall not be affected by any settlement between the parties, does not prevent the parties from coming to a settlement, and the court may set the settlement aside only when it will operate prejudicially upon the attorney by depriving him of his costs or turning him over to an irresponsible client. Feb. 12, 1892. Poole v. Belcha. Opinion by O'Brien, J.

CONSTITUTIONAL LAW-SALE OF INTERESTS IN REAL ESTATE OF PERSONS NOT IN BEING ACQUIESCENCE. SUMMONS-SERVICE BY PUBLICATION.-(1) The provisions of the Laws of 1890, chapter 276, authorizing the Supreme Court to sell certain real estate in the city of New York couveyed to John M. Bradhurst for life and in remainder, that the proceeds of the sale shall be brought into court, and shall retain the legal character of real estate, and be held by the court for the determination of the rights of all persons entitled, fully protect the possible and contingent interests of persons not in being, who shall at any time have or claim an interest in said property. (2) Under the provisions of the act that the title of the purchaser at such sale shall be valid in fee-simple against all persons who shall join or acquiesce in the proceedings, assent of the adult parties is sufficiently shown by their appearance by attorney, their acquiescence in the order of sale and their failure to object to or resist the proceedings. (3) Under the Code of Civil Procedure, section 440, providing that an order for the service of a summons by publication shall direct the publishing of the same, or at plaintiff's option personal service without the State, the order need not be in the alternative, but may direct either mode of service. Ritten v. Griffith, 16 Hun, 454, overruled. Feb. 12, 1892. In re Field. Opinion by Finch, J. 17 N. Y. Supp. 19, affirmed.

CONTRACT

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-CONSIDERATION FORBEARANCE OF SUIT. APPEAL INCONSISTENT FINDINGS OF REFEREE -PRESUMPTIONS.-(1) An agreement by the payee of a note, after maturity, to forbear suit thereon, though for an indefinite period, is a sufficient consideration for the signing of the note by a third party. Atlantic Nat. Bank v. Franklin, 55 N. Y. 233, and Perkins v. Proud, 62 Barb. 420, distinguished. Rolle Abr., p. 27, pl. 45; Brandt Sur., §8; 1 Pars. Cont. (6th ed.), p. 444; Walker v. Sherman, 11 Metc. 170-172; Mecorney v. Stanley, 8 Cush, 85-88; Hakes v. Hotchkiss, 23 Vt. 231; Calkins v. Chandler, 36 Mich. 320; Lonsdale v. Brown, 4 Wash. C. C. 148; Downing v. Funk, 5 Rawle, 69: Sidwell v. Evans, Rawle Pen. & W. 383; King v. Upton, 4 Me. 387; Elting v. Vanderlyn, 4 Johns. 237; Watson v. Randall, 20 Wend. 201; Ins. Co. v. Smith, 23 Hun, 535. (2) Such agreement binds the payee to for

bear suit for a reasonable time. (3) In an action on a note the evidence showed that defendant, a creditor of one of the original makers, signed the note after maturity in consideration of forbearance by the payee to sue; that no definite time was named, but it was the intention that defendant should have time to go to a distant city, examine the affairs of said maker and report to the payee. Held, that a finding by the referee that the payee agreed to extend the time of payment indefinitely, in consideration of defendant's signing the note, was not inconsistent with a finding, made at defendant's request, that the payee "did not waive its right to sue" the makers" whenever it saw fit," the latter finding being treated as a mixed inference of law and fact from the facts before found. (4) The Court of Appeals will if possible reconcile apparently inconsistent findings of a referee. Redfield v. Redfield, 110 N. Y. 671; Wahl v. Barnum, 116 id. 87-99; Green v. Roworth, 113 id. 462. (5) Where there is a certificate in the record that the case contains “ 80 much of the evidence as is material to the questions to be raised," it may be presumed that the case contains all the evidence bearing on a particular question. Second Division, Jan. 20, 1892. Traders' Nat. Bank of San Antonio v. Parker. Opinion by Brown, J. Follett, C. J.. and Vann, J., dissenting. 8 N. Y. Supp. 683, affirmed.

CRIMINAL LAW-MURDER-EVIDENCE-JOINT DEFENDANTS.-Where, on an indictment containing a single count, charging two defendants with jointly committing murder, one of the defendants is tried alone, evidence showing him to have committed the murder alone is sufficient for a conviction. Feb. 9, 1892. People v. Cotto. Opinion by O'Brien, J.

CRIMINAL PRACTICE-FORMER ACQUITTAL.—A defendant pleaded in bar a previous conviction for the same offense. That issue was tried before a jury, and verdict rendered for the people," whereupon an order was made permitting defendant to plead over, which he did, without objecting to the omission to enter a formal judgment on the verdict. Held, that no error was committed in refusing to direct a verdict of acquittal on the second trial, because no formal judgment was entered in the first trial. Feb. 9, 1892. People v. Trimble. Opinion by Finch, J. 15 N. Y. Supp. 60, affirmed.

DEED-CONSTRUCTION-RIGHT OF WAY.-Deeds to lots in a certain block declared that "fifteen feet in width across the rear of the lots shall be subject to the right of passage for horses, carriages and carts for the private convenience" of the lot-owners, and the passage "kept open "for the "use and purpose aforesaid and no other." Held, that the deeds did not restrict the owners from building over the passage, so long as the fifteen-foot space of reasonable height was left for access to the lots. Jan 20, 1892. Hollins v. Demorest. Opinion by Andrews, J. 16 N. Y. Supp. 384, affirmed.

EMINENT DOMAIN-INTEREST ON DAMAGES-COMPENSATION FOR LAND SUBJECT TO MORTGAGES.—(1) Under the Laws of 1888, chapter 191, section 3, providing that upon confirmation of the report of commissioners to estimate damages in acquiring sites for school purposes in the city of New York the corporation shall become seized in fee of the lands, and section 4, providing for payment to the persons entitled of the amounts reported due them, with interest from such confirmation, and that in default thereof, within four calendar months after such confirmation, suit may be brought for the same with interest from and after demand thereof, interest is to be allowed from the date of confirmation until the expiration of the four months, and on the amount then due from the time of

demand. Cutter v. Mayor, 92 N. Y. 166, distinguished. (2) Where there are mortgages upon land so taken, and no award is made to the mortgagees, the city. should not withhold the award until satisfaction of the mortgages, but should tender the owner the amount of the award and interest, on condition of receiving a satisfaction of the mortgages. Feb. 9, 1892. Devlin v. Mayor, etc., of City of New York. Opinion by Peckham, J. 14 N. Y. Supp. 251, reversed.

EXECUTORS AND ADMINISTRATORS-SETTING ASIDE FRAUDULENT CONVEYANCE OF INTESTATE. WITNESS -CONFIDENTIAL COMMUNICATIONS TO ATTORNEY.-(1) An administrator cannot set aside, as fraudulent as to creditors, a deed executed by his intestate, and recorded before but not delivered until after her death. The deed constituted no obstacle whatever to the enforcement of their debts in the usual and ordinary course of administration. There was no need of invoking the aid of a court of equity to set aside the instrument, as it could not, upon the finding, be fraudu lent as to creditors. Whatever the consideration or purpose of the conveyance was, it may be good so far the creditors are protected by the statute, and the adas appears against every one, so long as the rights of ministrator had no standing to attack it. He has precisely the same right now to proceed against the land that he would have had if the deed had never been executed. Nor can the judgment be upheld upon the ground that it removes a cloud upon title. The deed was not a cloud upon any right or interest that the creditors of the deceased had, and the statute confers no power upon an administrator to bring an action for that purpose. The theory of the defendants was that the grantor delivered the deed to the attorney who drew it, with instructions to him to deliver it to the grantee. If this was the fact, the legal effect of such delivery to a third person would be to divest the grantor of her title, and transfer it to the grantee by relation as of the date of the delivery to such third person. Munoz v. Wilson, 111 N. Y. 295; Hathaway v. Payne, 34 id. 92; Crain v. Wright, 36 Hun, 74. (2) Testimony of an attorney to prove the delivery of a deed to him by a deceased grantor, with instructions to deliver it to the grantee, is not within the Code of Civil Procedure, section 835, prohibiting an attorney from disclosing communications made by a client to him in the course of professional employment, as the communication is not confidential, and by the instructions to deliver the deed the privilege is waived, as is permitted by section 836. Hurlburt v. Hurlburt, 128 N. Y. 420; In re Coleman's Will, 111 id. 220. Feb. 12, 1892. Rousseau v. Bleau. Opinion by O'Brien, J. 8 N. Y. Supp. 823, and 14 id. 712, reversed.

INSURANCE-LIFE-MUTUAL BENEFIT-CERTIFICATE. -A certificate of membership in a life insurance association declared that the amount therein mentioned should be payable from the death fund at the time of death, or from any moneys that should be realized to the fund from the next assessment, and that "no claim should be otherwise due or payable except from the reserve fund, as hereinafter provided." It also provided that if the death fund was insufficient to meet existing claims by death an assessment should then be made upon every member at the date of the death last assessed for, and eighty per cent of the net proceeds thereof should go into the death fund. The constitution provided that the death fund should be used only for the payments of death claims; that payment should be made to the beneficiaries of the amount to which they were entitled, according to the terms of their certificates; that so long as the mortuary fund was sufficient to pay existing claims no assessment should be made, and that whenever a single assessment was insufficient to meet a death claim in full, there should

be paid, in full satisfaction of such claim, a sum pro rata of the membership and benefits in force at the time of death. The company required each person proposing to become a member to pay what was called the "first assessment." The insured was the first member to die, and the death fund at his death was insufficient to pay the claim, and assessments were made to meet it. Held, that the claim was not satisfied by paying the amount of the death fund on hand, and that the proceeds of the assessment made to meet it should be appropriated to the full satisfaction thereof. Second Division, Feb. 12, 1892. Wadsworth v. Jewelers & Tradesmen's Co. of New York. Opinion by Landon, J. 9N. Y. Supp. 711, affirmed.

MASTER AND SERVANT — INJURIES TO BRAKEMEN UNBALLASTED TRACK.—(1) A railroad company owes no duty to a brakeman in its employ to ballast storage or switch tracks so as to prevent his foot being caught between the ties. (2) A brakeman riding on a switch engine, and directing its movement toward cars to be coupled, is guilty of negligence in jumping off and walking before it on an unballasted track, while removing the coupling link and pin from the draw-head on the tender. Pennsylvania Co. v. Hankey, 93 Ill. 580, cited; Plank v. Railroad Co., 60 N. Y. 607, distinguished; Appel v. Railroad Co., 111 id. 550, approved. Jan. 20, 1892. Finnell v. Delaware, L. & W. R. Co. Opinion by Earl, {J. 14 N. Y. Supp. 946, mem., re

versed.

MECHANICS' LIEN-PERFORMANCE OF CONTRACTPRESUMPTIONS ON APPEAL.-(1) Where under a contract for the erection of several houses, which makes no provision for the completion of the work by the owner on the contractor's default, the owner has paid all installments due, but the contractor refuses to put in the sewer and water connections as agreed, and the owner after notice completes the work, the premises are not subject to the liens of materialmen. Larkin v. McMullin, 120 N. Y. 206, followed. (2) From the mere facts that the owner had lowered a certain sewer, with which the contractor had agreed to connect the sewers from the houses, and that the parties could not agree as to the extra expense which the contractor claimed he would incur by reason thereof, this court will not assume that the contractor was justified in refusing to perform the contract, where the evidence as to what the extra expense, if any, would have been, and whether either party was guilty of bad faith in the disagreement, was conflicting, and the referee was not requested to make any finding in relation thereto. Second Division, Feb. 12, 1892. Hollister v. Mott. Opinion by Brown, J. 10 N. Y. Supp. 409, reversed.

MORTGAGES-RIGHTS OF MORTGAGEE.-On an application by a second mortgagee for surplus moneys arising from a sale on foreclosure of the first mortgage, he will not be compelled to release his lien in favor of subsequent mortgagees, on proof merely that his debt is amply secured by other property on which his mortgage is a lien. Jan. 20, 1892. Quackenbush v. O'Hare. Opinion by O'Brien, J. 16 N. Y. Supp. 33, reversed.

NEGOTIABLE INSTRUMENTS-EXCHANGE OF NOTESPLEADING COUNTER-CLAIM.--(1) The transfer and delivery of a promissory note by the payee to the maker of another note, in exchange therefor, is a valuable consideration for the latter, and there is no failure of consideration although the former note subsequently becomes worthless. (2) In an action against the maker of a promissory note, an answer of failure of consideration will not enable him to offset a worthless note, for which the note sued on was exchanged, in the absence of allegations amounting to a counter-claim. Feb. 9, 1892. Rice v. Grange. Opinion by Gray, J. 14 N. Y. Supp. 911, affirmed

OFFICE REMOVAL OF POLICE JUSTICE COSTSCOUNSEL FEES-APPEAL-JURISDICTION.—(1) In a proceeding to remove a police justice from office under the Laws of 1847, chapter 280, section 25, as amended by the Laws of 1880, chapter 354, section 1, which empow ers the General Term to certify "the reasonable expenses of [the] referee," it has no authority to include in such expenses the counsel fees and disbursements of the parties to the proceeding. (2) An order certify. ing such expenses, including counsel fees, is appealable as being a final order affecting a substantial right made in a special proceeding. Code Civ. Pro., §§ 190, 3333, 3334; In re New York, W. S. & B. Ry. Co., 94 N. Y. 287; Bergen v. Carman, 79 id. 146; Sturgis v. Spofford, 58 id. 103; McGregor v. Comstock, 19 id. 581. Second Division, Feb. 9, 1892. In re King. Opinion by Vaun, J.

PLEDGE OF STOCK-RIGHTS OF PLEDGEE.-(1) Where a stock broker holds shares of stock as collateral security in a transaction ou margins, without special agree ment as to their application, the broker need not realize upon the collateral before bringing suit on account. Butterworth v. Kennedy, 5 Bosw. 143; South Sea Co. v. Duncomb, 2 Strange, 919; Lawton v. Newland, 2 Starkie, 72; Emes v. Widdowson, 4 Car. & P. 151; Elder v. Rouse, 15 Wend. 218; Coleb. Coll. Sec. 136; Jones Pledges, § 590. (2) Evidence of the custom of brokers, when collateral security is put up as a margin, and the account becomes reduced sufficiently to jeopardize it, to advertise and sell the collateral and charge the customer with the balance, is properly excluded where the broker sells his customer's stocks upon the latter's express order, and not to protect himself from a shrinking margin. Second Division, Feb. 9, 1892. De Cordova v. Barnum. Opinion by Landon, J. 9 N. Y. Supp. 237, affirmed. RAILROADS INJURY ΤΟ RENTAL VALUE-OBSTRUCTION OF VIEW.-(1) Evidence of annoyance suffered from interference with privacy in the occupation of premises, and from noise in the operation of defendants' elevated railroad in the abutting street, and of the interception of the view of the premises from the opposite side of the street, is competent as bearing on the rental value, but not as affecting the fee value of the premises. (2) Although no witness on a trial by the court divided the damages caused by the main structure of defendants' elevated road in the abutting street, and that caused by the station, in precisely the proportion the court awarded, that is no ground of reversal, if his award may be sustained by all the facts and circumstances in evidence. Jan. 20, 1892. Messenger v. Manhattan Ry. Co. Opinion by Earl, J. 13 N. Y. Supp. 958, affirmed.

ELEVATED

WAY RIGHT OF RESERVATION-EXTENT.-(1) A reservation in a deed of the "right of way through and over the carriage and alley-way" to a stable, so long as it should be used as such, does not secure the right to use the whole of an eighteen-foot alley as laid out, but only as much thereof as is reasonably necessary for the purpose expressed, and the grantee may erect a building over the alley leaving an arched passage sufficient for such purpose. (2) The reservation does not secure a right of light and air for the use of the stable, except in so far as is necessary to render the carriage-way reasonably convenient. Atkins v. Bordman, 2 Metc. (Mass.) 457; Bliss v. Greeley, 45 N. Y. 671; Bakeman v. Talbot, 31 id. 365, 370; York v. Briggs, 7 N. Y. St. Rep. 124; Maxwell v. McAtee, 48 Am. Dec. 409; Rexford v. Marquis, 7 Lans. 249; Matthews v. Canal Co., 20 Hun, 427; Spencer v. Weaver, id. 450; Tyler v. Cooper, 47 id. 94; affirmed, 124 N. Y. 626; Washb. Fasem. 244; God. Easem. 333. Second Division, Jan. 20. 1892. Grafton v. Moir. Opinion by Vann, J. 9 N. Y. Supp. 3, affirmed.

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