may be that the plaintiff was a "citizen," and that, if his attention had been called to the omission to prove such status, he could have supplied the proof. As the motion for dismissal was in general terms only, the exception to the denial of the motion to dismiss was not well taken, because the defendant did not specify the alleged defect. Quinlan v. Welch, 141 N. Y. 158, 36 N. E. 12; Crapo v. City of Syracuse, 183 N. Y. 395, 402, 76 N. E. 465. If it were necessary to consider the merits, I would be inclined to think that section 41 of the civil rights law is available to any person "within the jurisdiction of this state"; that is, that the term "citizen" is not employed in further limitation of status. Section 41 but prescribes the penalty for a violation of section 40, which af fords certain civil rights to any person within the jurisdiction of this state. No reason suggests itself why any person protected by the law should not avail himself of this penalty prescribed for an infraction of the law. The terms employed do not require any such conclusion. McLean, J., in his dissenting opinion in the Dred Scott Case, 19 How. 531, 15 L. Ed. 691, says: "The most general and appropriate definition of the term 'citizen' is ‘a freeman.'" In Union Hotel Co. v. Hersee, 79 N. Y. 459, 35 Am. Rep. 536, the court construed a provision in a contract that a certain sum be subscribed "by the citizens of Buffalo." It said that the term "citizens of Buffalo" "has more than one meaning, and must be taken in the sense which best harmonizes with the subject-matter in reference to which it is used. With what object and intention, therefore, was it introduced into the contract? This inquiry accords with an accepted rule of interpretation that 'all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person.' Bacon's Maxims of the Law, regula X. By the definition usually given, a citizen is 'an inhabitant of a city, town or place,' and so would include exery person dwelling in the place named; but it is subject to various limitations, depending upon the context in which it is found. It may indicate a permanent resident, or one who remains for a time, or from time to time. That it has various meanings, according to the object in view, is well illus trated by different statutes in which it appears." Endlich on the Interpretation of Statutes says (page 222): "So under an act which gave jurisdiction in controversies between citizens of different states, it was held that the term 'citizen,' in that act, embraced not only those technically citizens-i. e., possessing the requisite qualifications for voting and holding real estate-but any one who resides in and is an inhabitant of a state." See, too, Judd v. Lawrence, 1 Cush. (Mass.) 531-535; Sunman v. Clark, 120 Ind. 142, 22 N. E. 113; Bacon v. Board of Tax Commissioners, 126 Mich. 22-28, 85 N. W. 307, 60 L. R. A. 321, 86 Am. St. Rep. 524; McKenzie v. Murphy, 24 Ark. 155. [2] The second point made is that there was no proof of any personal refusal by the defendant. But there is no dispute that the defendant was the proprietor of the place, and that the refusal was made by the defendant's servant, who was a waiter in his employ about the defendant's business at the time, and who came forward to the plaintiff. In view of the satisfactory discussion of this point by Municipal Court Judge Freifeld, I need not dicuss it at length. The principle is well expressed in George v. Gobey, 128 Mass. 289, 35 Am. Rep. 376. See, too, Mechem on Agency, § 745, and cases cited. If the waiter was acting contrary to the defendant's orders, without his knowledge or consent, not merely in a colorable way, then the defendant would be entitled to show such disobedience as relevant upon the authority of the servant to refuse the entertainment. Westchester County v. Dressner, 23 App. Div. 215, 48 N. Y. Supp. 953, citing Town of Kirkwood v. Autenreith, 21 Mo. App. 73. The judgment must be affirmed, with costs. All concur. SABINE v. PAINE. (Supreme Court, Appellate Division, Second Department. January 12, 1912.) 1. USURY (§ 25*)-USURY BY TRANSFEREE. If a note was not usurious as between the maker and payee, the amount which a subsequent transferee paid for it could not make it usurious. [Ed. Note. For other cases, see Usury, Cent. Dig. §§ 55, 56; Dec. Dig. § 25.*] 2. BILLS AND NOTES (§ 376*)—Usury-EFFECT OF TRANSFER. A note usurious in its inception was not validated by its subsequent transfer before maturity. . [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 982984; Dec. Dig. § 376.*] 3. USURY ( 119 )-ACTIONS-JURY QUESTION. Whether the promissory note sued on was usurious held a jury ques tion. [Ed. Note. For other cases, see Usury, Cent. Dig. §§ 343-357; Dec. Dig. § 119.*] 4. BILLS AND NOTES (§ 493*)-USURY (§ 113*)-ACTIONS-PRESUMPTIONS. The presumption is that a negotiable promissory note was for a good consideration and was not usurious, especially where it recited that it was for value received. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 16521662; Dec. Dig. § 493;* Usury, Cent. Dig. §§ 308-323; Dec. Dig. § 113.*] 5. TRIAL (§ 142*)-DIRECTION OF VERDICT. The case should not be taken from the jury except where only one inference can be drawn from the evidence. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 337; Dec. Dig. § 142.*] Appeal from Trial Term, Suffolk County. Action by C. Olivia Sabine against Maggie S. Paine and another. From a judgment for defendant named and an order denying a new trial, plaintiff appeals. Reversed, and new trial granted. See, also, 131 N. Y. Supp. 1142. Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ. **For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes John B. Sabine and Edward Cahn, for appellant. RICH, J. This appeal is from a judgment dismissing plaintiff's complaint on the merits, upon direction of a verdict in an action upon a promissory note for $2,100, which was transferred to the plaintiff by the payee named therein for $1,850. It appears that the defendant, the maker of the note, desiring to borrow $1,600, was advised by her attorney that the plaintiff would loan. the money, but would require a bonus of $500. Accordingly, the note in suit was made to include the bonus, and payable to the order of Vacheron, her attorney, who indorsed and transferred the same before maturity to plaintiff. The respondent testified that she never received any part of the proceeds of the note, and the learned trial justice before whom the action was tried held as matter of law that the note was void at its inception. [1, 2] If there was a valid consideration between the maker and payee, it is of no consequence what the plaintiff paid for it (Eastman v. Shaw, 65 N. Y. 522, 526); but, if its inception was tainted by usury, the subsequent transfer before maturity did not validate it. [3] The respondent testified that she informed Vacheron, her attorney, that she wanted the money to pay debts amounting to about the sum of $1,400; that he at one time had moneys belonging to her, in his individual account; and that: "He sometimes paid what was due from me to others by check. Mr. Vacheron did not hand over to me that $1.850 or put it into my hands. I wouldn't swear and I don't know whether he applied it in payment and satisfaction of my obligations." [4, 5] The evidence of the respondent as to whether there was a valid consideration for this note is not entirely clear. The presumption is that it was for a good consideration, and it ought to have been left to the jury to determine whether the presumption has been overcome. It is only when but one inference can be drawn from the evidence that the court is justified in taking the case from the jury. Besides this, the note contains the admission that it was given for value received. In Strickland v. Henry, 175 N. Y. 372, 67 N. E. 611, speaking of such an admission, Chief Judge Parker said: "Now, while it was open to defendant to contradict that statement and to show that as a matter of fact it was without consideration, the note in the possession of plaintiff raised the presumption that it was given for a good consideration, and passed to plaintiff in due course of business. The defendant's evidence tended to overthrow this presumption. Whether it was true was-in view of the legal presumption raised by plaintiff's possession of the note indorsed by the payee, and the recital therein that defendant had received value for it-a question of fact to be determined by the jury." It follows that the action of trial court in taking the case from the consideration of the jury was mistaken, and that the judgment and order must be reversed, and a new trial granted; costs to abide the event. All concur. SHELDON v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. December 29, 1911.) 1. RAILROADS (§ 357*)-INJURIES TO PERSONS ON OR NEAR TRACKS-TRACKS IN PUBLIC STREETS-REASONABLENESS OF USE. Where the tracks of a railroad are laid in a public street, it has a right to use the street in the operation of its trains, but the use must be reasonable, in view of the rightful use of the street by other travelers. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1235; Dec. Dig. § 357.*] 2. RAILROADS (§ 400*)-INJURIES TO PERSONS ON OR NEAR TRACKS-FRIGHTENING HORSES-ACTIONS-QUESTIONS FOR JURY. In an action for an injury alleged to have been caused by plaintiff's horses being frightened by steam escaping from an engine of the defendant, evidence held sufficient to go to the jury as to the reasonableness of the operation of such engine. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 1368; Dec. Dig. $ 400.*] Appeal from Trial Term, Oswego County. Action by Curtis M. Sheldon against the New York Central & Hudson River Railroad Company. From a judgment on a nonsuit, plaintiff appeals. Reversed, and new trial granted. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ. Giles S. Piper, for appellant. SPRING, J. South Second street is an important street in the city. of Fulton, extending in a northerly and southerly direction; and the track of the defendant is laid in said street along its westerly side. Cayuga street intersects Second street, and the station of the defendand is immediately north of this intersecting street. On the 24th of March, 1908, the plaintiff, a farmer, drove a team. of horses north along the easterly side of South Second street. The horses were about five or six years old, gentle and steady, and plaintiff daily delivered milk to the railroad station with them, and they had never shown any signs of fright when in proximity to trains or engines. He had a lumber wagon containing some apples which he was selling. His wife was with him in the wagon, and held the team as he delivered the apples. He stopped his team near the easterly curb in South Second street, and carried a crate of apples to the residence of a man named Nelson on the westerly side of the street, leaving his wife in the wagon in charge of the team. As he reached the rear of the house, he heard a train coming up South Second street from the north and hurried back to his horses, taking hold of the reins and standing by their heads. The train stopped at the station. The plaintiff says the head of the engine was about 15 or 20 feet from him, although the weight of the evidence is that the distance is considerably greater than his estimate. As the train started up For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes a large volume of steam, with an unusually loud hissing noise, escaped from the engine, frightening the horses, causing them to run, and the plaintiff was thrown down and very seriously injured. He testified: "I was standing nearer the curb than the tracks. I had turned the horses' heads off toward the curb. I stood in front of one horse. I stood toward the railroad tracks from that horse, so that I was between the team and the tracks. I was in front of one of the horses. When the train pulled up, it blew off this steam when it started. The train started, and this steam came right out all at once, and the team jumped. That is all I can remember at that time. I was thrown. It came right out in a volume, passed by me, went all over the team and me too. The team ran up in an alley between two buildings. I landed by the side of the street." And again: "It came out from the side in a large volume. It seemed to come out and spread as it came. It came fast, all to once. It came right out against me and the team. When that came out there and came over me, I could not look through the steam and see the engine. I was blinded by the steam. I couldn't see through it." The witness Nelson testified that the steam came from cylinder cocks on the engine and out on the sidewalk. While he later testified that he was not certain that the steam came through the cylinder cocks, he said it escaped from under the steam chest behind the front wheels of the engine. Mrs. Sheldon, the wife of the plaintiff, gave this description: "When the train started, the steam came out. It came out like a loud hissing noise down to the ground, just behind the cow catcher on the side of the engine; on my side. When I saw it, it looked like pencils; went right down to the ground. This was when it started. It came down to the ground, and then it would rise; cover us. I couldn't see; that is, when it got up to me, it covered me. It covered my husband and the horses. It came out in a cloud. The thing that it came out of was just on the side of the engine back of the cow catcher; well, I should say a little over the front wheels. It was round, kind of long. It did not come out as one continuous burst of steam. It came a loud hissing noise and a breaking, then again a loud hissing noise. The horses started when the steam struck them." An engineer of long experience, testifying as an expert, said that the steam came either from open cylinder cocks or leaking cylinder heads. He also testified that it was unnecessary to have these cylinder cocks open in order to start the train. The fireman on the train testified on behalf of the defendant, and did not claim it was necessary to open the cylinder cocks to move the train, although it was going upgrade; but he testified that these cylinder cocks were not open, and that no unusual or unnecessary amount of steam escaped, nor did any puff out on these horses. According to the testimony of the plaintiff and his witnesses the jury might have found that an extraordinary quantity of steam escaped from the engine, enveloping the team of the plaintiff, and accompanied with an unusually loud hissing noise. [1] The defendant certainly had a right to use the street in the operation of its trains. It was obliged to stop them at the station, and |