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he retain possession of the prop- 289, decided under the old Code, erty, and that he recover $8 costs, sustains our construction of this but failed to assess the value of section,--that it is sufficient if the the property replevied. Defendant value is fixed by the pleadings. appealed for a new trial in the The Code as it then read was "if county court. Complaint alleged the value of the property as the value of the horse to be $150, assessed,” etc., shall exceed fifty and demanded judgment for $25 dollars. The words “as fixed” for wrongful taking, etc. The are now substituted in the place answer admitted the value of the of the words “as assessed," and horse to be $130. Upon a motion
Upon a motion it appears to us that the change by respondent to have the appeal was made for the purpose of redetermined to be one not for a new moving any doubt. The value of trial, the county court held that the property may be fixed by the defendant was not entitled to a pleadings or by the judgment of new trial in that court; that the the court, and in either case, if it appeal must be heard upon ques exceeds fifty dollars, appellant is tions of law only.
entitled to a new trial. Henry M. Davis, for respt. Order reversed, with $10 costs,
E. M. & F. M. Ashley, for etc. applt.
Opinion by Haight, J.; Barker Held, That as the value of the aud Bradley, JJ., concur. property replevied, "as fixed” by the pleadings, exceeded fifty dol
RAILROAD. NEGLIGENCE. lars, the appellant was entitled to a new trial in the county court, N.Y. SUPREME COURT. GENERAL although no value was fixed or
TERM. FOURTH DEPT. assessed by the justice. The Code of Civil Procedure provides, $3068,
Lester W. Babcock, respt. v. that “where an issue of fact or an
The N. Y. C. & H. R. RR. Co., issue of law was joined before the applt. justice, and the sum for which
Decided Oct., 1884. judgment was demanded by either party in his pleadings exceeds Plaintiff was injured by falling from a sidefifty dollars ; or where in an ac
walk crossing a ditch on a dark night.
There was no guard to the sidewalk and tion to recover a chattel the value
the ditch was constructed by defendant's of the property as fixed, together predecessor to carry off surface water. Rewith the damages, if any, exceeds pairs to the walk had always been made by
defendant and it did not appear that the fifty dollars, the appellant may, in
village ever exercised any control over it. his notice of appeal, demand a new
The question of defendant's liability to trial in the appellate court, and maintain the crossing over the ditch was thereupon he is entitled thereto,
submitted to the jury and they were charged whether the respondent was or was
that from the evidence they had a right to
find that defendant agreed to do so. not present at the trial."
No error. Merrill v. Piattison, 44 How., Evidence as to the manner in which side
walks were built across similar ditches in the question whether defendant adjoining cities is inadmissible.
was liable to maintain the crossing Appeal from judgment in favor over the ditch, and in connection of plaintiff entered upon verdict with that told the jury that from and from order denying motion the evidence they had a right to find for a new trial on the minutes. that a contract existed between
Action to recover damages for the village authorities and defend. injuries to plaintiff caused by his ant by which defendant agreed to falling from a sidewalk in the vil. take care of the crossing over the lage of Geddes, on the side of de- ditch so far as it was within the fendant's road into a ditch on the line of the territory occapied by it. evening of November 23, 1877. The last proposition was excepted The sidewalk extended from the to. track west over the ditch, which W. G. Tracy, for applt. was 6 feet from the track, 5 feet W. Nottingham, for respt. wide at top and 3 at the bottom, Held, No error. Under the act with an average depth of 3 feet 8 incorporating the Auburn & Syrainches. It was made for the pur cuse RR. Co., Laws of 1834, Ch. pose of carrying off surface water, 228, if it crossed a highway it was had been there ever since the road required to restore it to its former was built, and there was evidence state or in a sufficient manner not tending to show that the necessity to have impaired its usefulness. for the ditch was occasioned by This obligation to restore would the building of the road. The apply to any part of the street width occupied by the railroad, as within its line that was interfered indicated by the line of the fences, with, 29 Conn., 434; and in case a was 85 feet. The sidewalk was 5 | bridge was built in order to perfeet 4 inches wide ; on the right fect such restoration, there woula hand side, going westerly, there be an obligation on the part of the was a fence; on the left side, from corporation to keep the bridge in which plaintiff fell, there was no repair. 37 How. Pr., 427 ; 12 N. guard. There was evidence tend- | Y., 268 ; 36 id., 214 ; 23 Wend., ing to show that defendant's pre. 446. By Chap. 300, Laws of 1835, decessor, The Syracuse & Auburn which was in force when this railRR. Co., built the sidewalk origin road was built, the commissioners ally over the ditch soon after the of highways were authorized to building of the road, and that consent to the crossing of the whatever repairs had been made street by the railroad, but the act to it for six years prior to the trial also provided that the street ''shall had been made by defendant; but be so restored to its former state what repairs were in fact made did as not to have impaired its usefulnot appear, nor did it appear that ness." So that whether the railthe village ever exercised any con- road company derived its privilege trol over it.
to cross from its charter or from The court submitted to the jury the consent of the commissioners
it took it subject to the obliga Also held, That the court did cion to restore, which was in the not err in refusing to allow defendnature of a contract, 26 Hun, 428; ant to show how sidewalks were 49 N. Y., 657; the consideration built across similar ditches in the of which was the privilege granted. adjoining city of Syracuse. That This obligation was for the bene- would open too broad an issue. fit of the public and especially Nor under the evidence did the enured to the benefit of those who court err in declining to charge otherwise would have been charged that if this walk was constructed with the duty of maintaining the over this sluiceway in the same streets. As to whether or not, in manner that walks in like places the case before us, this duty ex were constructed, defendant has tended to the maintenance of the exercised ordinary care and prusidewalk or bridge over the ditch dence in the manner of its conwas the question at issue on the struction and would be guilty of trial, and that question could very no negligence.” properly be determined by the Judgment and order affirmed. conduct of the parties in interest Opinion by Merwin, J.; Harin regard to this particular subject. din, P. J., concurs; Follett, J., There was evidence tending to not sitting. show that defendant had assumed this duty and that the village au
ASSIGNMENT FOR thorities had not. The bridge was
CREDITORS. left without a guard at the place of the accident, and whether this N. Y. SUPREME COURT. GENERAL was negligence on the part of de
TERM. FIRST DEPT. fendant that caused the injury was for the jury to say.
Hugh N.Camp, temporary admr.,
respt., v. William H. Buxton, Plaintiff testified that he was
applt. walking pretty slow and it was so dark he could not see the sidewalk Decided Jan. 9, 1885. at all. He had passed over there
When a general assignment for the benefit that day in the forenoon and also
of creditors has been properly acknowlpreviously three or four times,
edged both by the assignor and assignee, but when did not appear.
but the certificates of acknowledgment anHeld, This is not like the case
nexed thereto are defective, the notary
taking such acknowledgments may, after of a party passing over a railroad
the death of the assignor, make proper track and being bound to do cer
certificates, and the assignment may then tain things in order to escape the be filed and recorded and take effect from imputation of negligence. Plain that date, provided that no rights of other tiff with such knowledge as he had,
parties intervene. in fact, of the walk was bound to Appeal from order enjoining deuse reasonable and proper care to fendant from acting as the assignee avoid injury. Whether he did so of the property of K. for the was for the jury to say.
benefit of creditors, and from in
terfering therewith, and appointing knowledged nor recorded it was aba receiver of said property.
solutely void, and Smith v. Boyd, This action was brought to set Daily Register, February 7, 1884, aside an assignment for the benefit was relied upon as supporting this of creditors, made by one K., and claim. dated January 17, 1884. The as John E. Parsons, for applt. signment was apparently acknowl A. H. Ammidown, for respt. edged by K. on said day, but the Held, That it was conceded in certificate of his acknowledgement the case of Smith v. Boyd, supra, was irregular, inasmuch as, after that, if no rights intervened, the stating that K.was known to the no assignee might obtain a proper tary public to be one of the individ- certificate and have the assignment uals who executed the assignment, recorded, his title vesting from the it concluded with the statement, time of such record. “who severally acknowledged that That it was not pretended that they executed the same." De.
the acknowledgments were not fendant, as the assignee of K., made as required by statute, but acknowledged the execution of the that the evidence of it was defecassignment on the 18th of January, tive. but the certificate was defective, That after the form of the acfor while stating that defendant knowledgment was made to correcame before the notary, it contained spond with the fact and to conform no statement that he acknowledged to the statute, the assignment bethe execution of the instrument. came valid, and, from the time of Notwithstanding these defects, the its record, conferred upon the asassignment was filed and defendant signee all the power which such took possession of the property as an instrument grants. assignee. On the 22d of February That plaintiff acquired whatever following K. died, and, on March rights he might possess in refer7, certificates in due form, as to ence to the personal estate of K. the assignor and assignee, were after the proper record of the asmade by the notary public, and signment, and, consequently, no the assignment was again recorded right of his intervened prior thereIn June plaintiff was appointed to, and, according to the case of the temporary administrator of K., Smith v. Boyd, supra, this would and in July following commenced be regular, this action and procured the order That the decision in that case appealed from. It was claimed in was adopted only so far as it sugbehalf of respondent that the de- gested the feasibility of making fects in the certificates of acknowl-corrections in the acknowledgment edgements could not be cured after and then recording the assignment the death of the assignor, and that to which the acknowledgment rethe assignment, not having been lates. duly acknowledged, could not be Order reversed, and motion derecorded, and being neither ac nied.
Opinion by Brady, J.; Davis, with the receiver, and this was inP.J., and Daniels, J., concur. cluded in them; but before they
were completed, or the report of
the actuary confirmed, appellant's INSURANCE.
husband died, and shortly afterN. Y. SUPREME COURT. GENERAL
ward the proofs required by the TERM. FIRST DEPT.
policy were filed with the receiver
and afterwards retained by him. The People v. The Knickerbocker The report of the actuary was subLife Ins. Co. In re application of sequently confirmed without noCarrie L. Young, applt.
tice to appellant, and as the valuDecided Jan. 9, 1885.
ation was made upon the policy as
an existing and continuing insurWhen the person insured by a policy of life
ance, and not upon the basis of the insurance in an insolvent company dies during the process of the winding up of the decease of the insured, appellant affairs of said company, and within a very applied for an order directing a short time after the filing of such policy re-valuation to be made. It appearwith the receiver for valuation, and before ed by stipulation entered into bethe actuary engaged in calculating the val
tween the attorneys for the parties uations of the policies issued by said company has made his report, and proofs of
that no embarrassment or confusuch death are furnished to the receiver sion could arise in the payment of before the making of said report, the the dividend previously directed to policy should be valued as a death claim be paid to other policy holders from against the assets of the company and not as an existing and continuing insurance.
the re-valuation of this policy as Upon an application for a re-valuation of a a death claim against the receiver.
policy, it is in the discretion of the court John B. Green, for applt. to make such order as may seem just and
John C. Keeler, for rec'r, respt. equitable.
Held, That as the person whose Appeal by Carrie L. Young from life was insured died while the an order denying an application actuary was proceeding with his made by her for the re-valuation valuations, and knowledge of that of a policy of life insurance issued fact was brought to the receiver by the Knickerbocker Life Insur- himself, it seems to have been no ance Co. upon the life of her hus more than just and equitable that band.
the re-valuation asked for should The Knickerbocker Life Insur- have been directed. That by the ance Co. was dissolved by an inter valuation made appellant became locutory judgment in this action, entitled to very much less than and a receiver of its property and the amount she would be entitled effects appointed, and the policy to receive upon the policy after issued for the benefit of appellant the decease of her husband, and upon the life of her husband was that this decease followed so filed with such receiver for valua- nearly upon the time when the tion. Proceedings were taken to policy was filed with the receiver value such policies as were filed | as to exonerate her from the charge
Vol. 20.-No. 21.