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of laches or unreasonable delay in Appeal from order of Special obtaining another insurance upon Term, granting injunction penhis life.
dente lite restraining defendants That it was committed to the from bringing and prosecuting acdiscretion of the court to make tions against plaintiff. such order as might appear to be In April, 1881, plaintiff issued a just and equitable in the disposi- policy of life insurance of $5,000 to tion of this application, 23 Hun, K., payable to him at the end of 601 ; 78 N. Y., 172; 88 id., 77, eleven years from its date, or, if and that it should have been he should die before that time, to granted.
his executors or administrators. Order reversed, and order enter The policy was declared, in case ed directing re-valuation of the of his prior decease, to be for the policy as a death loss.
benefit of his wife, P. K., if she Opinion by Daniels, J.; Davis, should survive him. K. died in P. J., and Brady, J., concur.
1884, having kept up the payment of the premiums on the policy, and
leaving his widow, the defendant, INTERPLEADER.
Philipena Keller, surviving him.
Subsequently the defendant Camp N. Y. SUPREME COURT. GENERAL
was appointed temporary adminisTERM. FIRST DEPT.
trator of the estate of K., and duly The New England Mutual Life qualified. Prior to his death K. Insurance Co., respt., v. Philipena made a general assignment, for the
benefit of his creditors, to the deKeller, impld., applt.
fendant Buxton. In May, 1884, Decided Jan. 9, 1885.
Mrs. Keller, the widow, brought When a person commences an action to re
an action in the Superior Court of cover a sum of money claimed to be due the city of New York against the from the defendant, and two other persons plaintiff, upon such policy, claimalso claim the same sum adversely to the plaintiff and to each other, and one of them ing to be entitled to the whole claims only a portion of such sum, the
amount thereof. The defendant remedy of the defendant, who makes no Camp, as temporary administraclaim to the money, is by an action in the tor, claimed to be entitled to renature of an interpleader, and not by a
ceive the whole of the sum payable motion under $ 820, Code Civ. Pro., to substitute the two other claimants as de on such policy, and the defendant fendants in the action brought against Buxton claimed to be entitled to him.
receive $2,500 of such sum, as asSection 820 of the Code is not applicable to a
case in which there are two claimants be- signee of K., on the ground that sides the plaintiff whose claims are not
the amount of premiums paid by alike, and where there is not only a con K. exceeded the limitation imposed test between the plaintiff and the two other by statute, and that the excess beclaimants , but also one between the claim | longed to his creditors.
This acants themselves which must also be liti. gated before the rights of all the parties
tion was therefore commenced for can be fully determined.
the purpose of bringing these sev
eral parties into court to contest also be litigated before the rights their respective rights, the plain- of all the parties could be fully tiff being ready and willing to pay determined, and that that contest over the amount due on the policy could not be carried under $ 820, to whomsoever should be adjudged and therefore the rights of all entitled to it and bringing the same the parties in respect of the money into court for that purpose in this could not, in a contingency which action. A motion was made by might arise, be disposed of in the plaintiff for an injunction pen- action brought by the defendant dente lite, restraining the defend. Keller. ant Keller from prosecuting the Order affirmed. action commenced by her, and re Opinion by Davis, P.J.; Brady straining the other defendants and Daniels, JJ., concur. from bringing actions, etc. This motion was opposed by the de. fendant K. upon the ground that
RAILROADS. ASSAULT. this action was unnecessary, as N. Y. COMMON PLEAS. GENERAL plaintiff had an adequate remedy
TERM. by motion, under $ 820 of the Code, in the action brought by her
Paul Graville, respt., v. The to have the other claimants sub- Manhattan R. Co., applt. stituted as defendants in that ac
Decided Jan. 16, 1885. tion. Merritt E. Sawyer, for applt.
The regulation of an elevated railway comRoger Foster, for respt.
pany forbidding passengers to stand upon
the platform is a reasonable and proper Held, That the case seems to
one, and if there is room inside the cars be a proper one for an interpleader, which can conveniently be reached, and a That the case was not covered by
passenger refuses a request to leave the
platform, the servants of the company may the strict letter of $ 820, Code Civ.
properly and lawfully eject him at the Pro., because the assignee of the nearest station. deceased policy holder did not But where, on refusal, the conductor underclaim or assert a demand for
takes to compel the passenger by physical the same debt for which the
force to obey the regulation and to go into
the car, there being no exigency which reaction was brought. That even if quires immediate action, the company is that section would bear a construc liable for his unjustifiable assault; this tion that would admit the bringing
irrespective of the question whether there
are seats in the car or not. in of both these claimants as de. fendants in that action, neverthe Appeal by defendant from judgless the facts in the case presented a ment. different contest than that contem The plaintiff was a passenger on plated by the section. That there one of the cars of defendant comwas not only a contest between pany on the 9th of October, 1881. the plaintiff, the widow, and these The cars of the train were crowded two claimants, but one between the with passengers, and the plaintiff, claimants themselves which must with others, stood upon the plat
form, When the train reached physical force, unless there be an 34th street the brakeman asked exigency which requires immedihim and others to go inside the ate action. car. They answered that there In taking the plaintiff by the was no room inside, and remained collar of his coat and forcing him upon the platform until the 42nd inside the car the conductor was street station was reached. At guilty of assault and battery, that place many people left the which he was not justified in comtrain and the cars were not so mitting. He was equally at fault crowded as before. After leaving whether there were vacant seats in 42nd street the conductor again the car or not. asked the plaintiff to go inside the Judgment affirmed. car, and he refused to do so. The Opinion by Allen, J.; Larreconductor then took hold of the more and J. F. Daly, JJ., concur. plaintiff and forced him inside the car. The plaintiff was put off the
DOGS. train at the 17th street station. The jury rendered a verdict for the N. Y. COMMON PLEAS. GENERAL plaintiff.
TERM. Exceptions were taken by de
Boecher, respt., v. Lutz, applt. fendant to the judge's charge, raising the questions here decided. Decided, Jan. 16, 1885. Deyo, Duer & Bauersdorf, for
The defense of a human being justifies the applt.
killing of a dog. Max Altmayer, for respt.
The owner of an animal may lawfully kill a Held, That the regulation of the
dog, if such killing be necessary to save the defendant forbidding passengers if two dogs are fighting, and cannot other
animal from death or from serious injury, standing upon the platform of the
wise be separated, the dog that made the cars is a reasonable and proper attack may lawfully be killed. one. If there is room inside the If it be proved that a dog is accustomed to
bite mankind, and that it was upon the cars which can be conveniently
highway unmuzzled, and in a condition to reached, and the conductor re
do injury to human beings, the killing of quests a passenger to go inside, it is lawful; and there is no rule of law the request is a reasonable one.
li miting proof of acts of ferocity 10 those If the passenger refuses to comply
committed within a year prior to the trial. with it the servants of the com Appeal by defendant from judg. pany may properly and lawfully ment. eject him from the train at any This action was for damages for regular station. Such refusal, killing a dog. Judgment was given however, does not give them au for plaintiff. There was a conflict thority to take hold of a passenger of evidence as to whether the dog for the purpose of coercing him to was killed while attacking the wife go inside the car. Obedience to of defendant; but it clearly apthe regulations of a railway com- peared that there were at the time pany cannot be compelled by hostilities between plaintiff's dog
and defendant's dog, which ended ever, that the killing was necesin open combat.
sary, and that the dog that was The defendant's dog was muz- killed was the aggressor. zled, and thereby incapacitated There is some evidence that the for defence. The plaintiff's dog killing was an act of vengeance, was the aggressor, and it made a but a finding that the killing was second attack upon the defendant's necessary could not be at all readog after having been once driven sonable. 9 Johns.,533; 4 Cow., 351. away. The defendant then seized Further held, That the justice the plaintiff's dog, whirled it by erred in excluding evidence that its hind legs in the air, and then the dog was accustomed to bite dashed its brains out against the mankind. There is no such limit stones in the street.
known to the law as laid down by Defendant also offered evidence him. Acts of ferocity done at any to prove that the dog was accus time may be shown, but they will tomed to bite mankind, which was not make out a defence if it apexcluded, the justice ruling that pear that for a long time the dog he would not receive evidence that had ceased to be dangerous. If, the dog was ferocious unless the however, it is proved that a dog is acts of ferocity were done within accustomed to bite mankind, that a year prior to the trial.
it was upon the highway, unmuzD. Levy, for applt.
zled and in a condition to do inA. H. Berrick, for respt. jury to human beings, the killing
Held, That if the dog was killed of it is lawful. 21 Wend., 407; 13 whilst attacking the wife of the Johns., 312. defendant, the plaintiff has no For error in excluding testi. right of action; but the defence mony, a new trial was ordered, of a human being is not the only without costs of appeal. circumstance that will justify the Opinion by Van Hoesen, J.; killing of the dog. The owner of Larremore, P. J., and Daly, J., an animal may lawfully kill a dog concur. if such killing be necessary to save the animal from death or from se BROKERS. DEFENSE. rious injury. The killing cannot
N. Y. COURT OF APPEALS, be done to avenge an attack that has ceased and can only be justi
Avila, respt., v. Lockwood et fied when done to avert impending al., applts. danger of death or serious injury Decided Jan. 20, 1885. to the animal. 6 Jones, N. C.,
6 Jones, N. C., In an action against brokers for moneys re293; 65 N. C., 416. If two dogs ceived by them in a fiduciary capacity, the are fighting and cannot otherwise answer set up that the moneys were the be separated, the dog that made proceeds of a sale of goods for plaintiff's
assignor ; that said assignor, in an action the at cack may lawfully be killed.
against the vendee, claimed to rescind the Saunders, 84. To constitute a
sale and recover the goods ; that such acjustification, it must appear, how tion was pending, although judgment was
had therein against said assignor, and that | Co. are ready to deliver upon desuch action was a bar. Held, That the demand or its equivalent), that this fense could not prevail.
action cannot, or ought not to be This action was brought to re- maintained ; that the
moneys cover of defendants $7,600 with claimed in the complaint are the interest from March 21, 1881. The same moneys, the proceeds of said complaint alleged that on or about sale of said sugar of lead which that date the defendants, as agents the alleged assignee of plaintiff and brokers of the Brooklyn rescinded. That plaintiff is not White Lead Co., a domestic corpo- the real party in interest, but that ration, in the course of their em- the Brooklyn White Lead Co. is ployment and in their fiduciary such party. capacity as such agents and brok W. F. MacRae, for applts. ers, received and had to and for Wm. N. Dykman, for respt. the use of said company $7,600, Held, That the defense set up which money belonged and was should not prevail, as if apheld it due to said company. That pay- would require the court to hold ment of said sum had been de- that an ineffectual judgment dimanded and no part thereof had vested a successful party of his been paid. That said claim had property and gave the wrong. been assigned to plaintiff. The doer a new advantage. The title answer set up as a defense that of the successful party is not ilissaid company, in an action brought turbed until his judgment is in by it against these defendants some way satisfied. 8 Cow., 43; and the Manhattan Chemical Co., 48 N. Y., 6. Although defendabout March 1, 1881, alleged that ants have disposed of the property, it was the owner, and entitled to as they still hold the proceeds of certain sugar of lead which these the sale, they should, as required defendants had sold or agreed to by the judgment appealed from, sell and deliver to the Manhattan pay them over to the person apChemical Co., and claimed in said pointed by its owner to receive them action as owner to rescind said
Judgment of Gereral Term, afsale and recover said sugar of lead firming judgment for plaintiff, in specie, instead of the price affirmed. thereof. That said action
Opinion by Danforth, J. All still. pending, although judgment concur. was had therein against the Brooklyn White Lead Co., and these de JUSTICE OF THE PEACE. fendants alleged that said action
N. Y. COURT OF APPEALS. is a bar to this action, and that said Brooklyn White Lead Co.
The People ex rel Lawrence, having elected to rescind said sale respts., v. Mann et al., applts. and to recover said sugar of lead Decided Jan. 20, 1885. (which sugar of lead these defend
A justice of the peace does not "hold the ants and said Manhattan Chemical
office of justice or judge of any court"