hurt. The banner had been up a considerable length of time. John T. Knox, for applt. John T. Gillette, Jr., for respt.

Held, That the village trustees were negligent in not removing the banner, and the village is liable for the result of their negligence. 16 N. Y., 158; 45 N. Y., 129.

Defendant argues that the trus tees were not obliged to remove objects suspended over the street, fastened to supports wholly outside of the street, if they were hung so high as not actually to obstruct the use of the street. Not so. 74 N. Y., 264; 12 Gray, 161; 5 Allen, 98; 18 Hun, 196; See Shear. & Redf. Neg., § 388; 41 Vt., 435; 42 N. H., 199; 30 Conn., 129; 18 Abb. L. J., 303382; 67 Penn., 365; 45 Ind., 429.

It was proper to allow plaintiff to prove that on a prior occasion a flag similar to this in appearance, hung over the same street in a similar manner, frightened other horses when they were driven under it; especially, as the witness by whom the facts were proved was one of the trustees at the time of the accident, and consented that this banner might be put up, and had already testified that he did not know that floating flags were objects at which horses took fright.

In fact, this banner was partly supported by being fastened to a post in the highway, but we place no stress on that fact.

Judgment and. order affirmed, with costs.

Opinion by Barker, J.; Smith, P. J., Haight and Bradley, JJ.,

concur.

NEGLIGENCE.

N. Y. COURT OF APPEALS.

& Grand St. Ferry RR. Co., applt. Hayes, respt., v. The 42d Street

Decided Nov. 25, 1884.

Plaintiff was riding on the front platform of one of defendants' cars without objection, and on the car stopping stepped down on the step to let some passengers in. He testified that as he was stepping up again the car gave a sudden movement and pulled up and he was thrown out sideways. It was not shown that the driver started his horses in any unusual or negligent manner. Held, that there was no evidence of negligence on defendant's part,

Reversing S. C., 14 W. Dig, 28.

This was an action to recover damages for the alleged negligence of defendant. It appeared that on New-year's-day, 1881, the plaintiff, after having partaken liberally of intoxicating drinks, but claiming, nevertheless, to have been entirely sober, went upon a street car of defendant at 42d street, in the city of New York, for the purpose of riding down town. He took his position upon the front platform, when there were vacant seats inside. The conductor took his fare while he was riding there, without remonstrance or objection. At 23d street the car stopped to permit four passengers, one of whom was a lady, to get on. They all entered by the front platform. Plaintiff stepped upon the front step, as he says, "to give these passengers better facility for getting in";

and then he adds, "I was in the act of stepping up again, after they got on the front platform, when the car gave a sudden movement and pulled up and I got thrown out sideways." It was not shown that the driver of the car started his horses in any unusual or negligent manner.

Freling H. Smith, for applt.

H. D. Birdsall and A. C. Hockmeyer, for respt.

Held, That there was no evidence which tended to show any negligence on the part of defendant; that in order to recover, plaintiff must prove something that would warrant such an inference. He could not leave his case upon facts just as consistent with care and prudence as with the opposite. 59 N. Y., 357.

As to whether the provision of the general railroad act requiring notice forbidding pasengers to ride or stand upon the platforms of the cars, to be posted in the cars, applies to street railroads, quære.

Judgment of General Term, affirming judgment for plaintiff on verdict, reversed and new trial granted.

Opinion by Finch, J. All concur, except Danforth, J., dissenting, and Rapallo, J., absent.

Where a judgment is reversed upon the facts it is the duty of the successful party to see that the order of reversal shows that to be the case; if the order does not state that it was made on questions of fact the reversal will be deemed to have been made on questions of law only, and can only be justified by some error of law. The opinion of the court cannot be cited to sustain it. An objection which might have been obviated if raised on the trial, but which was not so raised, is not available on appeal.

This action was brought to restrain defendant from interfering with a stream of water passing under the embankment of its road, and to recover damages claimed to

A

have been sustained in consequence of such interference. judgment was rendered for defendant which was reversed by the General Term, on the ground that upon the evidence one of two conclusions was irresistible, either of which involved a question of fact. The order of reversal does not state that it was made upon questions of fact.

D. E. Sutherland, for applt.
Miller & Mulleneaux, for respt.

Held, That under Section 1338 of the Code of Civil Procedure, the reversal must be deemed to have been made, not upon any question of fact, but upon questions of law only, and that the respondent is not in a position to avail himself of the construction placed upon the facts by the General Term, or to review the facts for the purpose of sustaining the conclusion arrived at by them upon the same. The opinion of the court cannot be cited to sustain the reversal, and it can only be justified by some error of law. 76 N. Y., 614; 79 id.,

409; 87 id., 550. It was the respondent's duty to see that the order showed that the judgment was reversed upon the facts.

It appeared that defendant offered in evidence a deed from K. and wife to O. & F., dated February 21, 1848, and recorded February 24, 1848, which conveyed certain premises, together with the mill and water privilege thereto belonging, and also all the right at all times to raise the mill-dam, &c. Plaintiff objected, on the ground that the rights of O. in connection with that dam were immaterial and irrelevant to the issue, and that plaintiff did not complain of any flowage from the dam itself, and that defendant could not give to another the right to do on its land what it could not do itself. The objection was overruled and defendant excepted. Several other deeds were then introduced in evidence, showing title eventually in O., all of them being received subject to the foregoing objection. The objection was urged on appeal that there was a want of continuity of the same claim for twenty years. That objection was not raised on the trial. Held, That as if it had been raised on the trial it might have been obviated it is not available now.

Order of General Term, reversing judgment for defendant and granting new trial, reversed, and judgment for defendant affirmed.

Opinion by Miller, J. All con

cur.

Vol. 20.-No. 6b.

CONTRACT.

N. Y. COURT OF APPEALS. Whelan, respt., v. The Ansonia Clock Co., applt.

Decided Nov. 25, 1884.

Plaintiff entered into a contract to varnish cases to be furnished by defendant, the work to be done on defendant's premises and to be examined and pronounced satisfactory by defendant before it was accepted and paid for. A fire occurred which destroyed the premises and contents including cases finished and partly finished by plaintiff. Held, That he was entitled to recover on quantum meruit for the work done although it had not been inspected.

Affirming S. C., 15 W. Dig., 334.

This action was brought to recover an amount claimed to be due for work done by plaintiff under a contract with defendant. It appeared that in 1880 said contract was entered into for the varnishing by plaintiff of clock cases to be furnished by defendant. The work was done in rooms of defendant's factory by men furnished by plaintiff. It was provided that the work should be examined by defendant and pronounced satisfactory before it was accepted and paid for. paid for. For a time plaintiff was paid on each of defendant's pay days for the work that had been inspected and pronounced satisfactorily done. In November, 1880, defendant's factory and its contents, including a great number of clock cases on which plaintiff had performed labor, some being finished and some unfinished, was destroyed by fire. Defendant claimed that plaintiff could not recover because the cases had not been inspected. The Court held

that plaintiff could recover on a quantum meruit, and a verdict for $490 was rendered for him. Marshall P. Stafford, for applt. J. D. Bell, for respt.

Held, No error; that defendant was liable for the work done, as the clocks belonged to it, were in its possession and under its control, and it was under an implied obligation to furnish and keep them in hand so that plaintiff could complete his work upon them and thus earn his compensation.

Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed.

Per curiam opinion. All concur, except Rapallo, J., absent.

dismissed as against him with costs, and judgment accordingly was entered. The Court held that the husband was improperly joined with his wife as defendant. S. Hubbard, for applt. James Wood, for respt.

Held, Error. The question presented, whether the husband may properly be joined as defendant with his wife in an action for the tort of the latter having no relation to the separate property depends upon the interpretation of § 450 of the Code.

It has not been the policy of the courts in this State to move in advance of the clearly expressed legislative purpose to remove the common law liabilities, rights or liabilities of coverture, or to modify the marital relations. 57 Barb., 9 92 N. Y., 152. But see 65 Ill., 9; 129; 16 Am. R., 578.

After an extended review of the authorities, the result is reached that the common law rule still remains in force, and the husband is properly joined as defendant. See 3 Cow., 339; 6 Barn. & C., 253; 15 Johns., 403; 15 Wend., 361; 26 N. Y., 606; 52 Barb., 141 et seq.; 3 Williams's P., 409, 411; 41 Vt., 311; 5 Harring, 441; 5 C. & P., 484; Married Wom. Acts of 1848, 1849; 18 How., 371; Code Civ. Pro., § 114; Acts of 1860, 1862; 55 Barb., 417; S. C., 45 N. Y., 230; 47 id., 577; 52 Barb., 141; 57 id., 9; 77 N. Y., 369; 17 C. B. N. S., 743; 5 Car. & P., 484; 11 C. B. N. S., 265-6; 49 N. Y., 201; 2 Kent's Com., 149; 2 Bish. Mar. Wom., § 254; Cooley on Torts, 115; Bac Abr., Baron & Feme,

Re

Judgment and order reversed. Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ.,

concur.

BAILMENT. SALE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Harris Andrews, respt., v. Abell Richmond et al., applts.

Decided Oct., 1884.

Plaintiff delivered wheat to defendants, who were millers, and received the following receipt: "Received of A. 390 bushels of wheat in store, subject to him or option to take price on or before May 1st." Defendants put the wheat in a bin from which they drew every day for grinding. The contents of the mill were destroyed by fire before May 1st. Held, Under the terms of the receipt there was a bailment, and defendants are liable for the value of the wheat. If plaintiff consented to the mixture and use of his wheat, there was a sale,

and defendants are liable as before.

Appeal from judgment on verdict at Circuit, and from order of Special Term denying new trial.

Action to recover the market price of certain wheat. Plaintiff delivered to defendants, who are millers, some wheat, and they gave

andaigua, Nov., 14th, 1878.
ceived of Harris Andrews, 390
bushels of wheat, in store. The
same is subject to him or option
to take price on or before the first
of May next. Richmond &
Smith." Before May 1st, plain-
tiff informed defendants that he
would sell the wheat and take the
market price. On receiving the
wheat, defendants put it in a bin
with some 200 or 300 bushels of
wheat of the same kind and qual-
ity, owned by them, from which
they were drawing every day for
grinding. They informed defend-
ant of their intention to so mix
and manufacture the wheat. On
Jan. 27th the mill burned without
defendants'
defendants' fault. There were
then in the bin about 1000 bushels
of wheat, of the same quality as
plaintiff's wheat and there had all
the time been more wheat in the bin
than plaintiff delivered. Before
the fire plaintiff had not demanded
a return of the wheat, nor had he
elected to make a sale and take
the market price. The trial court
directed a verdict for $417.29.

Comstock & Bennett, for applts.
John Callister, for respt.

Held, That regarding the written instrument as embracing the entire contract, defendants were bailees, and were obliged to deliver on proper demand, the specific wheat to plaintiff, unless they were relieved by an election by plaintiff to sell them the wheat, or it was destroyed without their fault. 4 Hill, 144; id., 107. In this view, the use of the wheat