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Williams & Potter, for respt.

John D. Teller, for applts. James M. Humphrey, for applt. F. D. Wright, for respts.

Held, That the testimony as to Held, The only question that what was done after the collision need be decided here arises on dewas im properly received. The fendant's exception to the charge. question of defendant's negligence There was no error in the charge. is to be determined by what was 35 Mo., 357; Stark v. Lansing, dedone before and at the time of the cided in this Court in March, 1884, accident, and not what was done unreported. afterward. 56 N. Y., 1; 68 id., Judgment affirmed, with costs. 547; 9 Hun, 526; 3 id., 338.

Opinion by Barker, J.; Smith, The omission of other parties P. J., Brady and Haight, JJ., to observe the ordinance is no legal concur. excuse for plaintiff. The receipt of the evidence was practically a

EXECUTION. ruling by the Court excusing plaintiff's violation of the ordi: N. Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT. nance, if there was in fact such violation.

Cornelius Bodine, Shff., Respt., Judgment and order reversed v. Thomas Walters et al., Applts. and new trial granted, costs to

Decided Oct., 1884. abide event.

Opinion by Barker, J.; Smith, An officer is protected in the execution of P. J., Haight and Bradley, JJ.,

process regular on its face and coming from a court of competent jurisdiction.

Appeal from judgment on ver.

dict, and from order of Special EXCISE.

Term denying motion for new trial. N. Y. SUPREME COURT. GENERAL Trover for goods owned by K. TERM. FIFTH DEPT.

and kept in his store.

fessed judgment in favor of P. beThe Board of Excise, respt., v.

fore a justice, and before judgment Gurden F. Merchant, applt.

was entered thereon. The confes. Decided Oct., 1884.

sion and entry were regular, except

that plaintiff omitted to make an Calling for liquor and drinking it on the affidavit as required by $ 311 of premises is prima facie evidence of a sale.

the Code. An affidavit was made Appeal from judgment on ver- by D., who claimed to be plaintiff's dict at Circuit.

agent. Execution was issued on Action for penalties for violation said judgment, under which deof excise laws. Defendant kept a fendant W. levied on part of said saloon. The court charged the goods, but did not remove any of jury that the calling for liquor and them, and left K. in possession. drinking the same on the premises Next day an attachment was issued was prima facie evidence of a sale. out of this court against K.'s


K. con

property, under which one of of plaintiff makes the judgment plaintiff's deputies levied on all void as against creditors, but if W. said goods, including those levied retained possession under his levy on by W. He did not remove any regularly made, the parties to the of the goods, but claims he took subsequent levy would have to repossession of the goods and re sort to judicial proceedings to disceived from K. the key of the store. place the first levy. Afterward, while the store was

Moreover, a ministerial officer is closed, and the deputy having the protected in the execution of prokey, W. and the other appellants, cess, regular on its face, and comin the deputy's absence, broke ing from a court having jurisdic. open the store and began to remove tion of the subject-matter. 5 the goods levied on by W., and Wend., 170; 2 Comst., 473; 11 the deputy going to the store for- Hun, 250. bade the removal. When W. But if the deputy acquire posmade the levy the deputy was session the execution afforded W. present and was informed thereof. no protection. He could avail At that time the deputy claimed himself thereof for a defense, but control of the goods under a chat not for affirmative and aggressive tel mortgage from K. to a third action, 63 N. Y., 627. person, as whose agent the deputy Judgment and order reversed had advertised the goods for sale. and new trial granted, costs to Shortly before appellants removed abide event. the goods the evidence tends to Opinion by Barker, J.; Smith, show that the deputy, at the store, P. J., Haight and Bradley, JJ., offered some of the goods for sale concur. under the mortgage. After all the evidence was in the Court ruled that the execution in the hands of BOARD OF EDUCATION. W., though regular on its face,

POWERS. was no protection to him, and that he was bound to show a valid N.Y. SUPREME COURT. GENERAL

TERM. FIFTH DEPT. judgment on which the same was issued.

Neal S. Gould, plff., v. The William H. Burton, for applts. Board of Education of Union D. Coats, for respt.

Free School, Dist. No. 9, of LivoHeld Error. The questions

nia, deft. whether W. surrendered possession to the deputy, or whether the

Decided Oct., 1884. deputy required, in any way, The Board of Education of a school district complete possession under the at organized under Title 9, Chap. 555, Laws tachment, were for the jury. The of 1864, has power to employ legal coun

sel. justice's judgment was valid against defendant therein. The On trial at Circuit verdict was omission of the affidavit on behalf directed in plaintiff's favor for

$103.25, subject to opinion of Gen. | dict, with costs of action and aperal Term, on case to be made by peal. plaintiff. Plaintiff moves for judg Opinion by Barker, J.; Smith, ment.

P. J., Haight and Bradley, JI., Defendant was incorporated un concur. der Title 9, Chap. 655, Laws of 1864. An action had been begun HIGHWAYS. OBSTRUCTION. against defendant for wages claim. ed to be due a former teacher em

N. Y. SUPREME COURT. GENERAL ployed in the schools maintained

Term. FIFTH DEPT. by defendant, and at a meeting of Jonathan Champlin, respt., v. the Board of Education, by a reso- The Village of Penn Yan, applt. lution in due form, B., then a

Decided Oct., 1884. member of the board, was employed as attorney and counsel to A municipality is liable for damages resultdefend the action; he acted as

ing from the frightening of a horse by a

banner hung over the roadway, although such, and performed services

the banner was fastened to supports outside worth $103.25, and has assigned of the roadway. his claim to plaintiff.

In an action for such damages it is compeJohn W. Byam, for plff.

tent to prove that on a former occasion a

similar banner frightened other horses. James Wood, for deft.

Held, That the Board of Educa Appeal from judgment on vertion as the agent of the corporation, dict at Circuit, and from order of had the power to employ legal | Special Term denying motion for counsel to conduct for them their new trial. legal business, and to give them An advertising banner was hung advice from time to time. 75 N. directly over the traveled part of Y., 303; 3 Seld., 340 ; 2 Kent's Main street, in Penn Yan. It was Com., 298 ; 2 Denio, 110 ; 25 Conn., held by ropes, fastened to the bat552; 45 N. Y., 199.

tlement and chimneys of stores on It was proper to employ a mem- opposite sides of the street, and ber of the board. 2 N. Y. S. C. was stayed at the bottom by two R., 643; 58 N. Y., 623; 14 Hun, gny ropes, one fastened to a post 483; 27 Vt., 433; 28 id., 401; 1 standing in the street, outside of Green. (N. J.) 225.

the sidewalk, and the other to a The provisions of g 7, 8 and 9 spike in a window-sill of the opof Title 9, are limited in their ap- posite store. The bottom of the plication to school district trus- banner was from twenty to thirty tees proper, and are not limitations feet above the surface of the street, upon corporations created under and the banner itself was twentythe act, or upon the power and four feet long and twelve feet wide. authority of the Board of Educa- Plaintiff's horse was being driven tion, who act as the officers, agents along the street, and under the and managers of the corporation. banner, at which latter it took

Judgment for plaintiff on ver.' fright, ran away, and plaintiff was

hort. The banner had been up a Opinion by Barker, J.; Smith, considerable length of time. P. J., Haight and Bradley, JJ.,

concur. John T. Knox, for applt. John T. Gillette, Jr., for respt.

NEGLIGENCE. Held, That the village trustees were negligent in not removing

N. Y. COURT OF APPEALS. the banner, and the village is liable for the result of their negligence. & Grand St. Ferry RR. Co., applt.

Hayes, respt., v. The 42d Street 16 N. Y., 158; 45 N. Y., 129.

Defendant argues that the trus Decided Nov. 25, 1884. tees were not obliged to remove

Plaintiff was riding on the front platform of objects suspended over the street,

cne of defendants' cars without objection, fastened to supports wholly out and on the car stopping stepped down on side of the street, if they were the step to let some passengers in. He tes

lified that as he was stepping up again the hung so high as not actually to

car gave a sudden movement and pulled up obstruct the use of the street.

and he was thrown out sideways. It was Not so. 74 N. Y., 264; 12 Gray,

not shown that the driver started his horses 161; 5 Allen, 98; 18 Hun, 196; in any unusual or negligent manner. Held, See Shear, & Redf. Neg., § 388 ;

that there was no evidence of negligence on

defendant's part, 41 Vt., 435; 42 N. H., 199; 30

Reversing S. C., 14 W. Dig, 28. Conn., 129; 18 Abb. L. J., 303– 382 ; 67 Penn., 365; 45 Ind., 429. This was an action to recover

It was proper to allow plaintiff damages for the alleged negligence to prove that on a prior occasion a of defendant.

of defendant. It appeared that on flag similar to this in appearance, New-year's-day, 1881, the plaintiff, hung over the same street in a after having partaken liberally of similar manner, frightened other intoxicating drinks, but claiming, horses when they were driven nevertheless, to have been entirely under it ; especially, as the wit- sober, went upon a street car of ness by whom the facts were defendant at 42d street, in the city proved was one of the trustees at of New York, for the purpose of the time of the accident, and con- riding down town. He took his sented that this banner might be position upon the front platform, put up, and had already testified when there were vacant seats inthat he did not know that floating side. The conductor took his fare flags were objects at which horses while he was riding there, without took fright.

remonstrance or objection. At 230 In fact, this banner was partly street the car stopped to permit supported by being fastened to four passengers, one of whom was a post in the highway, but we a lady, to get on. They all enplace no stress on that fact.

tered by the front platform. PlainJudgment and order affirmed, tiff stepped upon the front step, as with costs.

he says, "to give these passengers better facility for getting in”;

and then he adds, “I was in the Where a judgment is reversed upon the facts act of stepping up again, after they

it is the duty of the successful party to see

that the order of reversal shows that to be got on the front platform, when

the case ; if the order does not state that it the car gave a sudden movement

was made on questions of fact the reversal and pulled up and I got thrown will be deemed to have been made on ques. out sideways.' It was not shown tions of law only, and can only be justified that the driver of the car started

by some error of law. The opinion of the

court cannot be cited to sustain it. his horses in any unusual or neg.

An objection which might have been obviated ligent manner.

if raised on the trial, but which was not so Freling H. Smith, for applt.

raised, is not available on appeal. H. D. Birdsall and A. C. Hock This action was brought to remeyer, for respt.

strain defendant from interfering Held, That there was no evi. with a stream of water passing undence which tended to show any

der the embankment of its road, negligence on the part of defend and to recover damages claimed to ant; that in order to recover,

have been sustained in conse

A plaintiff must prove something quence of such interference. that would warrant such an infer- judgment was rendered for defendence. He could not leave his case

ant which was reversed by the upon facts just as consistent with General Term, on the ground that care and prudence as with the op- upon the evidence one of two con

clusions was irresistible, either of posite. 59 N. Y., 357.

As to whether the provision of which involved a question of fact. the general railroad act requiring The order of reversal does not state notice forbidding pasengers to

that it was made upon questions ride or stand upon the platforms of fact. of the cars, to be posted in the D. E. Sutherland, for applt. cars, applies to street railroads,

Miller & Mulleneaux, for respt. quære.

Held, That under Section 1338 Judgment of General Term,

of the Code of Civil Procedure, the affirming judgment for plaintiff on verdict, reversed and new trial reversal must be deemed to have

been made, not upon any question granted. Opinion by Finch, J. All con

of fact, but upon questions of law cur, except Danforth, J., dissent-only, and that the respondent is ing, and Rapallo, J., absent.

not in a position to avail bimself of the construction placed upon

the facts by the General Term, or PRACTICE. APPEAL.

to review the facts for the purpose

of sustaining the conclusion arN. Y. COURT OF APPEALS. rived at by them upon the same. Shaw, respt., v. The N. Y., L.

The opinion of the court cannot

be cited to sustain the reversal, E. & W. RR. Co., applt.

and it can only be justified by some Decided Nov. 25, 1884.

error of law. 76 N. Y., 614 ; 79 id.,

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