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teristics of the knowledge that a practical man has of respondent, v. City of Brooklyn, appellant; James
Fitzpatrick, administrator, etc., appellant, v. N. Y.,
of General Term recovered, judgment of Special Term
affirmed, except as to the women's hospital and as to
that reversed and the provision declared to be void, PHE following decisions were handed down Tues
with costs to all parties to be paid out of the fundday, March 3, 1885:
Asa L. Shipman, executor, respondent, v. Isabella G. Teunis P. Osterhoudt, tax payer, eto, respondent, v. Rollins and others, aqpellants. --Order of General John Riguey and others, appellants. Judgment af- Term reversed and proceedings and order of the comfirmed. The cases of Osterhoudt v. Butler and others; | missioners affirmed with costs—People ex rel. John J. Same v. Trodden and others; Same v. Murphy and McCarthy, respondent, v. Board of Police Commisothers; Same v. Brackett and others; Same v. Hyland sioners, appellant. -Order affirmed with costs-Adeland others, are governed by the decision in this case aide R. Keuny, respondent, v. Edwin A. Weed, ap. and should also be affirmed, but with but one bill of pellant; Kato T. Ryckman, respondent, v. Gerritt W. costs in this court in the six cases.-Judgment re- Ryckman, appellant. Appeal dismissed with costs— versed, new trial granted, without costs to either party Jennie Roat, appellant, v. J. R. Van Duzer and others, in this court-Teunis P. Osterhoudt and others, re
respondents (two cases); Jacob 8. Freedman, assignee, spondents, v. Board of Supervisors of Ulster county, respondent, v. Isaac Burman and others, appellants. appellant.-Judgment affirmed with costs-Samuel
-Orders of General Term affirming the order of the F. Edwards, appellant, v. New York & Harlem R. Co., Special Term confirming the report of the commissionrespondent; Jonathan E. Robinson and auother, ex- ers, and adjudging that the respondent is entitled to ecutors, eto., respondent, v. Eph A. Smith and others, costs, etc., are affirmed, and the appeal from the order impleaded, etc., appellants; Margt. Barry,respondent, denying the motion to remit the case to the commisv. Patrick Lambert, executor, etc., appellant; Johnsioners is dismissed, with costs to the respondent of A. Lambert, executor, etc., respondent, v. Horace
one appeal-In re Application of the Cortland and Craft and another, executors, etc., appellants; Ange- Homer Railroad to cross, etc.-Order affirmed withline M. Snook, administratrix, etc., respondent, v. Del- out costs of appeal, and remittitur heretofore sent aware & Hudson Canal Co., appellant; Joseph M. Pray down requested to be returned-Benj. Wright, reand another, executors, appellants, v. Joseph Hege-ceiver, respondent, v. Mary A. Nostrand, impleaded, man, executor, respondent; Frank Wilson, executor, appellant.-Judgment of General Term reversed and respondent, v. Henry R. Reynolds and another, ap- decree of surrogate affirmed, with costs—In re Estate pellants; James C. De Bevoise, administrator, re- of Andrew Hood, deceased.- -Judgment of General spondent, v. N. Y., L. E. & W. R. Co., appellant; Mary Term approving decree of surrogate affirmed with E. Bacon, administratrix, respondent, v. Horace B.
costs of this appeal to the respondent to be paid out of Claflin and others, appellants; Mary Hughes, admin
the estate, but without costs to any other party-In re istratrix, respondent, v. N. Y. C. & H. R. R. Co., ap Final Settlement of Joseph H. Mahan, executor.pellants; Lewis A. Burgess, administrator, respond-Motion for reargument denied, with costs—People v. ent, v. N. Y. C. & H. R. R. Co., appellant; James Mc- Gold Stock Tel. Co.; Same v. Western Union Tel. Co. Keen, executor, appellants, V. James D. Fish and
-Motion for reargument denied, with $10 costs another, receivers, respondents; Henry Moyer, admin- John P. Higgins, appellant, v. Thomas J. Crichton, reistrator, respondent, v. N. Y. C. & H. R. R. Co., ap- spondent. pellant; Catherine McDonald, executrix, respondent, v. Frederick Lester, appellant; Hiram L. Doolittle, executor, etc., respondent, V. Timothy Hoyle and
NOTES. others, appellants; Edward Ellsworth. executor, respondent, v. N. Y., L. E. & W. R. Co., appellant; Constance D. Price, respondent, v. Walter J. Price and TWO
"WO new law journals have come to us. The Kanothers, executors, appellants; Wm. W. Thomas and sas Law Journal, published at Topeka, is. a small another, administrators, respondents, v. Utica & Black octavo of sixteen pages, weekly, and is devoted to the R. R. Co., appellants; Frances E. Castle and others, legal affairs of that State. The Columbia Jurist is pubrespondents, v. Harvey A. Koch, sheriff, etc., appel- lished-we do not know how often--by the Columbia lant; Jobn Drabriskie, administrator, respondent, v. Law School students, and is filled with weighty matLong Island R. Co., appellant; Margaret Moore, ex- ter. The proof-reading is not faultless. For example, ecutrix, appellant, v. City of Albany, respondent; Ed- we cannot believe that Prof. Dwight ever spoke of a ward B. Lord, administrator, respondent, v. Wm.
“bee-tail estate." That would be a very difficult esTiffany and another, appellant; Wm. A. Poucher, ad- tate to hold. We wish both these new journals all the ministrator, appellant, V. Robert C. Scott, eto, re- success they deserve.There is a dreadful report spondent; Jacob Werle, administrator, respondent, v. about our President-elect. He is said to have been Long Island R. Co.; Richard P. Bisden, respondent, “busy with Marble all day.” This is worse than Vinv. Lutgarda Augarica De La Rua, executrix, appellant. nie Ream's efforts.-Represeutative Reed, of Maine,
Judgment affirmed, costs to be paid by appellant- is quoted by the San Francisco Chronicle as saying: In re Petition of Mary J. Lyman to revoke probate of “I was admitted to the bar in California, and Judge will of Lewis S. Phillips, appellant, v. Mary B. Phil. Wallace examined me. I'll take my oath nobody was lips, executor, respondent. — Order of General Term ever admitted to the bar with as simple an examina. reversed and judgment at Circuit affirmed-Mary tion. When I went up for examination the great quesPowers and another, administrators, respondents, v. tion of the hour was the legal-tender act. Everybody N. Y., L. E. & W. R. Co., appellants.-Judgment re- was discussing its constitutionality. Some said it was versed, new trial granted, costs to abide the event- constitutional, others said it was unconstitutional. George C. Hemingway, administrator, respondent, v. The first question Judge Wallace asked me was, “Is Jacob S. Poucher, impleaded, etc., appellant; Jeremiah the legal-tender act constitutional or unconstituEighmie, respondent, v. Edgar D. Taylor, administra. tional?' I didn't hesitate a moment. I said simply, tor, appellant; Willard Parker, Jr., and others, execu- 'It is constitutional.' You can pass,' said Judge tors, appellants, v. Albro B. Stroud and others, execu- Wallace. "We always pass a man who can settle great tors, respondents; James Murphy, Jr., administrator, constitutional questions off-hand.'"
The Albany Law Journal.
serve the mild restraint of a lunatic asylum. These acquittals after all embody the most effective argu
ment against jury trial. When we read the history ALBANY, MARCH 14, 1885.
of such trials, we feel for once an approach to sympathy with those who say, with Bumble, slightly
modified, “the jury is an ass." This emotional CURRENT TOPICS.
plea is a disgrace to our jurisprudence and our ad
vocates, It deifies our profession at its most ignoTHERE is a bill pending before the Legislature of ble and human nature at its most lawless point. this State which proposes to amend the Code The scenes on these trials are disgusting.
Women of Civil Procedure in relation to defendants who are always fainting away; the insane culprit is pale set up the plea of insanity, and among other things with suspense; the clerk is so agitated that he canprovides that when a person is tried on the charge not ask the jury if they have agreed; the jury are of murder, and he interposes the plea of insanity as
always breaking down in tears; everybody is emhis defense, and is acquitted on this ground, the bracing and hand-shaking; the court-room is aljury shall so state in their verdict of quittal, and ways bursting into a “tornado” of applause; and that the court shall then order such person to be
then they all go out and “paint the town red.” A committed to a State lunatic asylum during his nat- perusal of Mr. Donovan's "Modern Jury Trials and ural life, with the provision however that the gov
Advocates" will show that we do not exaggerate. ernor may order the discharge of the person so com
Mr. Donovan truthfully says: “Fifty years ago the mitted whenever he shall be satisfied that it may be plea of emotional insanity was unknown; now it is done with safety to others. The present provis- a sheet anchor to the rich and influential.” A senion is that the court, upon such acquittal, “must,
tence more damning of our profession was never if they deem his discharge dangerous to the public written. In the present state of the law there is peace or safety, order him to be committed to the hardly any necessity for putting in the plea at all, State lunatic asylum until he becomes sane." The
and so counsel thought in Sickles' case, where they proposed amendment would be a theoretical im- boldly justified the deed as an act of revenge, alprovement, but we doubt whether it amounts to though they did throw out the “sheet-anchor” to a substantial improvement. These “emotional”
windward. We repeat, we do not see that this bill criminals are always cured the moment they have
will make much pracsical difference in the adminiskilled their victim. Like Cole, who killed Hiscox,
tration of our laws. they are sane the instant before and sane the instant after, and insane only at the instant of the A letter from the Konorable Charles Reemelin, killing. What a farce it would have been to put in the Cincinnati Weekly Law Bulletin for March Cole in the insane asylum; or Sickles, who was no 2d last, contains some curious comments on codifimore morally irresponsible at the moment he slew cation. The author's proposal seems to be that the Key
, than he was afterward, when he forgave his wife general government should codify the State conlike a christian, and served his country like a pa- stitutions. Some day, no doubt, even State contriot. The result of this bill would be simply to stitutions will be so numerous and complex that go through the form, for in nine cases out of ten reduction in some shape will be necessary for this the defendant must be discharged as soon as com
species of legislation as for all others. But we are mitted. The only effective measure practicable at a loss to understand how the Federal governwould be to make confinement in the insane asy: ment can assist in the work, and in fact what affair lum imperative for a given length of time, with the it would be of theirs. Federalism is a beautiful privilege of discharge after that. A still more ef- product of human ingenuity, but a confusion of fective measure would be to punish adultery and Federal functions may assist neither the cause of seduction and the like as crimes, capitally, if need codification nor the cause of good government. be, and then if the offended man took the law into his own hands, to punish him as a criminal, or to shut him up as an insane person for life, without
The Virginia Law Journal has recently made sevprivilege of discharge — estop him by his plea. eral excellent suggestions for the improvement of We have no sympathy with this emotional insanity law-reporting. In the current number it says: plea. If a man's wife or sister is seduced, and ex- “Can nothing be done to shorten the titles of istence is intolerable to him until he has hunted cases cited in judicial opinions, and in printed ardown and killed the seducer without giving him guments of counsel? Here is a not inconsiderable any warning or any chance for his life, why then source of waste and annoyance which might be let him not sneak away under the pretext of insan
remedied to some extent. Take for example a late ity, but let him walk up and take his hanging like case from the United States Supreme Court, which a man, and be done with the existence which is has been 'dragging its slow length along' through hateful to him; or if he thinks he was crazy,
let the legal journals under the style of Chicago, Milhim face the consequences of such a plea.
If waukee and St. Paul Railroad v. Duane 0. Ro88,' the seducer is so dangerous to society as to deserve and will soon wriggle itself entirely across the the killing, the avenger is so dangerous as to de- page of many a reported case. Now, what is the
Vol. 31 – No. 11.
use of all this name? Why would not · Ruilroad There is one species of Anglo-mania that ought v. Ross' answer every possible purpose? There is to be encouraged in this country, and that is the no use for a title to the case except for identifica- imitation of the English dealing with criminals and tion and reference, and it does not matter in the their administration of criminal law. As we learn least about the full name of the unfortunate engineer, from the London Law Times, at the recent Lewes nor the full legal designation of the road on which Assizes Lord Coleridge made some observations as he was injured. And again, when Dick, Tom and to the general diminution in crime in England and Harry sue Harry, Tom and Dick, what is the use in Wales, as shown not merely, at these assizes, but by reporting or citing the case as · Dick, et als. v. the returns for the last ten or twelve years throughHarry, et als.?! Yet this is the constant habit of out the country. “ When I recollect," said his reporters, judges and counsel; and if one of the lordship, "wbat assizes were when I was a young parties on either side happens to be a party in a man, and observe that notwithstanding the more representative capacity, the case will almost cer- frequent gaol deliveries, the actual number of pertainly appear and reappear as · Dick, Adm'r, etc., et sons in the prisons of England has for the last ten als. v. Harry, Trustee, etc., et als.' Why not make or twelve years steadily declined, it is a matter on it a uniform rule to drop all titles and descriptions, which we may heartily congratulate ourselves. We and report and cite every case by the name of one must not make too much of it, as it may
have plaintiff and one defendant? Corporation cases, arisen from a concurrence of causes which may not particularly those of banks and railroads, often fur- be permanent; but for the present, at all events, it nish long and exasperating titles, which ought to is satisfactory to find that upon returns which canbe reduced in every case to · Bank v. :' and not deceive, and which include the whole of the
v. Railroad,' and vice versa.” We assent to prisoners in England and Wales, there has been a most of this. It is however convenient sometimes steady diminution in crime for the last ten or to have the corporate title expressed in full, or so twelve years.” Mr. Justice Denman also, at Derby, nearly so as to distinguish the party from other said that judges in many parts of the country had corporations. For example, there are a great many noticed that crime was diminishing in England. cases of “ Railroad v. Smith," and the like. But So far as the Midland Circuit was concerned, he all christened names, and descriptions, and“ was happy to give the strongest confirmation to rels.," and the like, are vexatiously superfluous. that view. If he might judge from what had hapIn the American Reports we have always used the pened in every one of the counties in which he had shortest form, and so they do in the American been holding assizes during the last month or so, Decisions.
it was certainly the case that the fewness and mild
ness of offenses, as compared with other occasions In the case of Groth v. Washburn, 34 Hun, 509,
within his memory, gave every reason for congratu
lation. the following are the “catch-lines” preceding the head-note: “Statute of limitation - an action by a husband to recover damages for injury sustained by
NOTES OF CASES. his wife is governed by the six years' limitation – Code of Civil Procedure, section 382.” And the N Homer v. Harvey, Supreme Court of New following is the head-note: “An action by a husband to recover damages sustained in consequence way conductor who rents a room in a hotel at of injuries inflicted upon his wife by the defend the terminus of his route, at a specified rate per ant's negligence, where such damages consist in month, which he uses for sleeping and other purthe loss of the services of the wife, and in moneys poses when there, is not a guest of the hotel. The expended for necessary medical aid and attendance court said: “The liability of innkeepers is strict, upon her during her illness, and in employing other and justly so; but it is a liability limited to their persons to render the services which she had there- relation to travellers or wayfaring men. The law tofore performed, is an action to recover damages of civilized countries benignantly protects men for an injury to property, and not for a personal in- away from home, and from those resources with jury, and it may therefore be brought within six years which the denizen or citizen can guard himself from the time it arises, as provided in section 382 from wrong, and protect his property from loss or of the Code of Civil Procedure.” Now one or the injury. When the traveller comes to an inn and is other is superfluous. The "catch-line" should be: accepted, he instantly becomes a guest. The inn“Statute of limitation — action by husband for in- keeper, when he accepts him and his goods, bejury to wife.”
The head-note then would be quite comes his insurer, and the innkeeper must answer right. Perhaps we have said it before, but we in damages for the loss or injury of all goods, will run the risk of repetition, and say that this money and baggage of his guest brought within sort of reporting reminds us of the ministers who his inn and delivered into his charge and custody, read the hymns all through before the choirs sing according to the usage of travellers and innkeepers; them. Mr. Hun's reports are so admirable in other but he must be a guest, and before he can be a respects that we would fain have him recognize the guest he must be a traveller. When he ceases to proper office of the “catch-line.”
be a traveller, or a transient or wayfaring man,
and takes up a permanent abode even in an inn, he Telegraph Co., 65 N. Y. 167; Grinnell v. Telegraph
In Fisher v. Metropolitan Elevated Ry. Co., 34 rents a room by the month he is no more a guest in Hun, 434, it was held that although a railroad corthe legal sense which fixes the liabilities of inn- poration cannot, without the consent of the Legiskeepers, than if he was a mechanic in the shops or ture, lease its road to an individual, yet it may lease a permanent citizen of the place. If Horner was its road to another railroad corporation, and when it not a traveller he could not be a guest, and if he has done so, and the lessee has taken possession of was not a guest he could not maintain this action.” | the road, and is operating and managing it thereunSee note, 46 Am. Rep. 119.
der, the lessor is not liable to a passenger thereon for
injuries sustained by him by reason of the negliIn Cole v. Western Union Tel. Co., Minnesota Su- gent and wrongful acts of the lessee's servants. The preme Court, Feb. 14, 1885, 22 N. W. Rep. 385, court said: “It has been urged that the Metropolithe printed blank forms in common use by a tele- tan Railway Company had no legal authority to exgr:1ph company contained the following condition: ecute and deliver this lease of its railway to the "No claim for damages shall be valid unless pre- Manhattan Railway Company, and Abbott v. Johnssented in writing within thirty days after sending town, etc., Railroad Co., 80 N. Y. 27, is relied upon
and beneath the blank space for in support of this position. But in that case the message and place of signature was printed in large lease was made to an individual, and it was theretype: “Read the notice and agreement at the top.” | fore held to be inoperative, and that the company Held, that one who filled up and signed a message still remained liable to persons injured in the upon such blank form was presumed to have had course of its management, notwithstanding the notice of such condition, and was bound by it as a
lease. But by chapter 218, of the Laws of 1839, it part of his contract with the company. Held also
was made lawful for any railroad corporation to that the same was a reasonable stipulation, and not contract with any other railroad corporation for contrary to public policy. The court said: "Un- the use of their respective roads, and thereafter use der the circumstances of the case, as they appear, the same in such manner as may be prescribed in he must be presumed to have had notice of its such contract. This act did not authorize the leasterms and conditions. Wolf v. Telegraph Co., 62 ing by a railroad company of its road to an indiPenn. St. 87; S. C., 1 Am. Rep. 387; Belger v.
vidual, but it has been held to authorize such a Dinsmore, 51 N. Y. 171; S. C., 10 Am. Rep. 575. lease from one railroad company to another. That It follows therefore that the terms embraced in the subject was considered in Woodruff v. Erie Railway printed form became part of the contract between Co., 25 Hun, 246, wliere this distinction was mainthe plaintiff and the company, and are binding on
tained, and it was there held incidentally that the him in so far as they are reasonable regulations. Legislature had authorized the leasing of a railroad Schwartz v. Telegraph Co., 18 Hun, 159; Young v. by one railroad company to another. This case,
it is true, was afterward reversed, but the reversal words “personal effects' do not cover.” Arthur v. did not draw in question the correctness of this Morgan, United States Supreme Court, Oct., 1884. construction of the statute. But on the contrary, SUPPLYING HEAT.- A corporation chartered it was again repeated and approved by the court. “for the manufacture and supply of gas, or the Woodruff v. Erie Railway Co., 93 N. Y. 609. Un- supply of light and heat to the public by any other der this authority it is regarded as having been means," is not autborized to supply natural gas. conclusively settled by the laws of this State, that Emerson v. Commonwealth, Pennsylvania Supreme one railroad company may lease its road, as this Court, Feb. 2, 1885, 15 Pitts. Leg. Journ. 273. railroad was leased, to another. And where such a The court said: "Regarded in this manner, we feel lease has been executed and delivered, and the les- obliged to hold that whether the article furnished see has taken possession of the leasehold property, be gas or light or heat, it must be the result of a and afterward operates it as its sole proprietor, as manufacturing process. That is, if gas is furit well might do under the terms of this lease, nished, it must be manufactured; if light or heat is there the lessor cannot be held liable to persons furnished, it also must be manufactured. Nor is having causes of action of this description. To this inconsistent with the language of the section render the corporation liable the law requires that which speaks of the supply of light or heat by the relation of principal and agent, or master and any other means.' For neither light nor heat can servant, shall appear to exist between the person be produced by any human agency except by some whose wrongful act is complained of and the cor-species of manufacture. If either is the result of poration proceeded against. A party injured by the mere combustion of natural substances, that the misconduct of another is limited in his right to very combustion is a method of manufacture. In redress to the person or persons causing the injury, the nature of the case the material for combustion, unless the fact can be established that these per- and the gases which support it, must be furnished sons maintained the relation of servants or agents in large quantities, their union effected, and an to another party or corporation. Milligan v. Wedge, economical and safe means of transportation of the 12 Ad. & E. 737; Rapson v. Cubitt, 9 Mees. & W. product provided. It is well known that heat is 710. The persons whose acts were relied upon as furnished by means of steam and hot water in pipes, wrongful in support of the action did not maintain or by currents of heated air produced by direct this relation of servants or agents to the Metropoli- radiation from heated metallic surfaces. This tan Elevated Railway Company. And for that rea- brings us to the decision of the question whether son this company was not responsible for the conse- the act of 1874 authorizes the creation of corporaquences of what they omitted to do for the plaint- tions for the supply of natural gas. The furnishing iff. The case of Railroad Co. v. Brown, 17 Wall. of natural gas is not the furnishing of heat. Nat445, is in no way inconsistent with this conclusion. ural gas is not heat. It is a fuel, a substance which For it appeared there that the persons in charge of may be converted into heat by combustion with atand operating the railroad were still, as a matter of mospheric air. When the gas is delivered to the fact, in part at least, in the service of the company. consumer it is still gas only. It is not heat. If They were its servants to that extent, and it was the consumer does not produce combustion, no heat liable for the consequences of their failure to per- is obtained, and if he does produce it, the act of form their duties. And what was said in the doing so is his act, not that of the company which course of the opinion is to to be regarded as subor- furnishes the gas. In any point of view therefore dinate to this state of facts." See Singleton v. it must be said that a company which furnishes Southwestern Railroad, 70 Ga. 464; S. C., 48 Am. natural gas is not necessarily furnishing heat. It Rep. 574, and note, 580.
would scarcely be contended that companies could be chartered under this section of the act of 1874,
for supplying coal, wood, oil, peat or other subCOMMON WORDS AND PHRASES. stance whose combustion produces heat, yet they
all belong alike in the category of fuels. The fuels OUSEHOLD EFFECTS. A carriage is within must be destroyed in order that their calorific
the phrase, “household effects, ” in the Fed-qualities may be developed, but when they are fureral statute as to customs duties. The court said: nished in their original, natural state it cannot be “A carriage is peculiarly a family or household ar- said that they have been delivered in their develticle. It contributes in a large degree to the health, oped form. They are still subject to any use to convenience, comfort and welfare of the house which the consumer may choose to apply them. If holder or of the family. The statute is not limited he does not choose to convert them into heat no to articles of household furniture, or to things heat is obtained, and it certainly cannot be said that whose place is necessarily within the four walls of the company has furnished any heat to the cona house. Clause 2 above uses the words 'personal sumer. But if he does so convert them it is equally and household effects.' This serves to show that true that the heat thus obtained is not received by the use of the words ' household effects' alone from the company." in clause 1, in the same section of the statute, some- BODY OF WATER.– A river is a “body of water." thing is intended different from 'personal effects,' | Berlin Mills Co. v. Wentworth's Location, 60 N. H. and that those words embrace articles which the 156.