in the city early in the morning; it is com-
petent for the defence to show, by the tes-
timony of a witness who walked and timed
the distance, that the prisoner could not
have walked from the place described by
the people's witnesses so as to be at the
places mentioned in the city at the time
testified to by his witnesses.-Id.

MUTUAL BENEFIT SOCIETIES.

1. Defendant was incorporated under Ch. 267,
Laws of 1875. It issued a certificate of
membership to one H. payable upon death,
one fourth to H.'s wife and three-fourths to
plaintiff Massey, not a relative. The cer-
tificate of incorporation of defendant did
not state as an object the payment of
moneys upon the death of a member
the by-laws, which by the act defendant had
power to make, provided for such payments
to members' families or their assigns, and
for the payment of benefits to beneficiaries
designated by deceased members.

But

Held,
That plaintiff Massey, though not a member
of H.'s family, could recover, and that the
contract was not one beyond the powers of
defendant.-Massey et al. v. The Mutual
Relief Soc., 280.

2. The by-laws of a mutual benefit associ-
ation provided that any person in good
health, &c., may become a member upon
approval of the executive committee, and
upon payment of the prescribed admission
fee. An application was approved and
certificates were issued and mailed to an
agent, who, knowing that the applicant
had become seriously ill, delivered them to
a third person, B., upon his promise to
pay the admission fee, and the latter mailed
them to the applicant, who died before the
mail arrived. B. forthwith forwarded the
amount of the admission fee to the agent,
with information of the death, who re-
mitted it to the home office. Upon learn-
ing these facts, the association tendered
back the money. Held, That the agent
had no authority to waive the essential
conditions requisite to membership, and
his acts were not binding on the association,
and the applicant was not a member at the
time of his death.-The People v.
Mutual Benefit Associates, 546.

NATIONAL BANKS.

The

1. All property and rights held by a State
bank before organizing as a National bank
continue to be vested in it under its new
status. As between it and those who have
contracted with it, it retains its identity.
Defendants executed to the City Bank a
guaranty of payment of advances to be
made to one W., which guaranty was re-
cognized by defendants after the bank had
been converted into a National bank. W.,
having afterwards failed, Held, That de-
fendants were liable on the guaranty.-The
City Natl. Bk. of Poughkeepsie v, Phelps, 87,

NEGLIGENCE.

1. Defendant furnished a team and wagon to
one M. under an arrangement that M. was
to work them and receive one-fourth of the
proceeds, and defendant to receive the
balance. Plaintiff was run over and in-
jured by the team while M. was driving
them. Held, That as to third persons de-
fendant and M. each became the agent of
the other in the prosecution of the common
enterprise and liable for his omissions and
faults in regard thereto.-Stroher v. Elt-
ing, 1.

2. When a wharf has been maintained in its
position for such a length of time and un-
der such circumstances as to warrant the
imputation of negligence to its owners in
failing to remove an unevenness in the bot-
tom alongside of such wharf, which causes
an injury to a vessel lawfully coming
thereto, the owners of the wharf are liable
for such injury.—Barber v. Abendroth
Bros., 7.

3. It is no error to charge the jury that if the
brakeman whose duty it was to notify pas-
sengers of the movements of the train as-
sured plaintiff it was safe for her to alight
she was excused from the negligence of
getting off the moving train. And the ad-
ditional charge that if plaintiff believed it
was imprudent for her to alight, and her
judgment was the true one, she should
bave remained on the train, was certainly as
favorable to defendant as it could properly
ask.-Abbey v The N Y. C. & H. RR. Co.,
37.

4. Plaintiff, who was employed by one G.,
was injured by the fall of some boxes while
engaged in unloading a vessel. To obtain
power, G. leased of defendants an engine
and boiler, in charge of their engineer, who
worked the same under the direction of
two of G.'s men. The machinery was per-
fect, and the engineer was not shown to be
incompetent.
It was claimed that the
boxes fell because they were lowered too
fast and stopped suddenly. Held, That de-
fendants were not liable.-Coyle v. Pierre-
pont et al., 91.

5. Plaintiff was riding on the front platform
of one of defendant's cars without objec-
tion, 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 negli-
gence on defendant's part.-Hayes v. The
42d St. & Grand St. Ferry RR. Co., 135.

6. Where a passenger, in the exercise of
ordinary care and observation, was induced
to believe, by the announcement of the
station and to change cars, and by appear-

ances created by the acts of the employees,
that the train had come to a full stop for
the discharge of passengers (though it had
not, in fact), and proceeded to the platform,
in the dark, for the purpose of alighting,
but was thrown therefrom by the sudden
starting or violent jerking of the train,
Held, That the case was properly submitted
to the jury, to determine whether negligence
existed on the part of defendant, and
whether plaintiff was free from negligence
under the circumstances of the case.-
Bartholomew v. The N. Y. C. & H. R. RR.
Co., 166.

7. Plaintiff, who was employed by defendant,
started on a dark night with a lantern to go
to a privy which projected over a stream
and which he was required to and was for
a long time accustomed to use. The lan-
tern went out and in the darkness he missed
the door and fell over the wall, breaking
his leg. Held, That he could not recover
without proof that he had no knowledge of
the dangers and risks attending the use of
the privy.-Kesley v. The Sanderson Bros.
Steel Co., 192.

8. Where it appears that the whistle was not
blown until the train was very near the
crossing, and the evidence is conflicting as
to whether the bell was rung, the question
of defendant's negligence is one for the
jury.-Burgess v. The N. Y. C. & H. R. RR.
Co., 249.

9. Deceased was riding by invitation with
friends, and the driver, on approaching the
crossing, looked both ways and saw no train,
and while looking in the opposite direction
heard the whistle blow and the train was
upon them. The view of the track was
obstructed from the road for some distance
and from a point 30 feet from the crossing
it was only visible for about 300 feet. The
train was travelling 50 miles an hour. It
did not appear what deceased was doing.
Held, That the question of contributory
negligence was for the jury.—Id.

10. Where snow eight inches deep had lain on
the walk two weeks, and then thawed and
froze again, and the ice thus resulting con-
tinued nearly a week, and plaintiff slipped
on it at night and was hurt, Held, That
the jury were warranted in finding the vil-
lage authorities chargeable with notice, and
negligent.-Chapman v. The Village of Silver
Creek, 253.

11. P. went to defendant's office to ask the
superintendent for work; not finding him
he went into another room of the factory,
and was there killed by a descending eleva-
tor. Held, on suit by P.'s personal repre-
sentative, that it was error to leave the
question to the jury whether deceased was
lawfully in the factory, and it was error to
charge the jury that deceased had a right to
look for the superintendent wherever he
Vol. 20-No. 26b.

could be found so long as he violated no
established rule of the company.-Pierce v.
The Rawson M'f'g. Co., 256.

12. Plaintiff, with his team, approached de-
fendant's tracks in the evening, and stop-
ped, but saw or heard no train, and a person
standing where defendant usually kept a
flagman waved his lantern and called to
plaintiff to cross the tracks, and plaintiff in
crossing was injured by defendant's engine.
Held, That evidence as to the actions of the
person with the lantern was proper, although
plaintiff could not identify him as an em-
ployee of defendant.- Wagner v. The N. Y.,
L. E. & W. RR. Co., 277.

13. A loaded coal wagon of defendant's was
going up a steep icy street in the daytime,
when a horse cast a shoe. The driver drew
the wagon out to the side of the street,
blocked its wheels, went to a blacksmith
shop with the team and was gone 15 min-
utes. Plaintiff in the meantime drove up
the street, saw the coal wagon and also a
wagon loaded with iron coming down.
Seeing that he could not reach the coal
wagon before the iron wagon did he turned
out and stopped about 40 feet directly be-
hind the coal wagon. The ironworks
wagon, on reaching the coal wagon, slid
over and struck it; the coal wagon slid
down upon plaintiff's coach and team and
damaged, them. Held, That defendants
were justified in leaving their wagon prop-
erly blocked in the street under the circum-
stances, and that plaintiff could not re-
cover.-Newcomb v. Van Zile et al., 278.

14. Plaintiff, aged 12, was hired by defend-
ants, who manufactured a kind of fuel from
coal dust and pitch, to carry water to the
workmen. One Taylor was foreman, and
he directed plaintiff to attend a shoot which
brought down pitch. In order to do this
plaintiff was compelled to stand on a plat-
form about three feet wide, raised twelve
feet from the ground, and without any rail-
ing. Through the whole length of this
platform and about two feet above it ran a
shaft which revolved outward. The out-
side edge of the platform was not more
than ten feet from the shaft. This turned
cog-wheels which made a good deal of noise.
and which were greasy. The pitch shoot
was near the cog wheels and back of them.
From time to time it was necessary to open
and close the shoot; to open it the boy
must lean over the cog-wheels, raise a slide
with an iron bar, and put in a peg; and
similarly to close it he must lean over and
drive down the slide with a hammer. While
waiting for orders to open or close it his
back must be to the shaft. The cog-wheels
had been covered by a box which was not
there when the accident occurred. On that
day a strong wind was blowing. This wind
or the draft made by the revolving cogs
drew in plaintiff's coat-tail as he stood with
his back to the machinery; he was thrown

twice around the shaft and very seriously
injured. Held, That a non-suit was error,
and that the questions of negligence and
of contributory negligence were for the
jury.-Miller v. Coykendall et al., 299.

15. Defendant's passenger car stopped at a
regular station on their road, and the an-
nouncement of "Ten minutes for refresh-
ments was made. While the car was at
rest plaintiff rose from her seat to adjust
her wrap, when the car was suddenly
moved with such violence that she was
thrown against the seat and seriously in-
jured. Held, That there was sufficient evi-
dence of defendant's negligence to send the
case to the jury, inasmuch as there could be
no imputation of prima facie negligence to
plaintiff.-Glidden v. The N. Y. C. & H.
R. RR. Co., 313.

16. Plaintiff when about to enter a train at
one of defendant's stations was struck and
injured by a mail bag thrown from the
postal car of the train while in motion. It
appeared that the postal clerk had habit-
ually so thrown the bags upon the platform
of the station for a long time with the
knowledge of defendant's employees and
without objection being made. * Held, That
plaintiff was entitled to recover.-Carpen-
ter v. The B. & A. RR. Co., 325.

17. Plaintiff, who wished to see one of the
defendants on business, went to his store,
and in looking for him saw an open door-
way, which showed only the floor of the
elevator well, which was like the store
floor; he entered, looked through a glass
partition into the store, walked on and fell
through a hatchway in front of him, and
was injured. He testified that he could
have seen the hatchway had he looked.
There was no notice or sign on the door.
Held, That the case should have been sub-
mitted to the jury.—McRickard v. Flint et
al., 328.

not be held to the most rigid accountability
for his actions.-Bucher v. The N. Y. Č.
& H. R. RR. Co., 384.

20. Where one leased land to another on
shares, with the proviso that the lessor
would pay the lessee for clearing a part of
the same, Held, That the lessor was not
liable for the negligence of the lessee; that
in clearing the lot the lessee acted as an in-
dependent contractor and not as the servant
or agent of the lessor.- Ferguson v. Hubbell,
386.

21. In an action to recover damages to plain-
tiff's real estate, caused by an explosion of
defendant's works, the plaintiff should not
be required to furnish a bill of particulars.
-Muller v. The Bush & Denslow Mƒ`g Co.,
390.

22. Where there is any evidence of defend-
ant's negligence and of absence of contrib-
utory negligence on the part of plaintiff,
the case should be submitted to the jury.
Pyers v. The N. Y. & N. E. RR. Co., 394.

23. In an action to recover damages for the
death of an employee of defendant caused
by the latter's negligence, it is not error to
refuse to charge that in view of the services
the deceased was employed to perform, viz.,
repairing cars, defendant was not bound to
furnish sound or perfect cars, or that plain-
tiff could not recover unless deceased was
injured through gross carelessness or wilful
wrong of defendant, or through some risk
not incident to his employment.-Id.

24. Plaintiff, while engaged in uncoupling
cars in defendant's employ, caught his foot
in a frog, and signalled the engineer to
stop, but the engine, being defective, could
not be stopped in time, and plaintiff was
run over and lost his leg. There was evi-
dence that plaintiff's superior had promised
that another engine should be furnished to
do the work. Held, That the questions of
negligence and contributory negligence
were properly submitted to the jury, and
that the evidence warranted a finding that
the injury was caused by the failure of
defendant to furnish suitable machinery.-
Bajus v. The Syracuse, B. & N. Y. RR. Co.,
399

25. In such an action evidence as to the condi-
tion of the engine before and about the
time of the injury is admissible, but evi-
dence as to its subsequent condition is not.
-Id.

26. The absence of contributory negligence
on plaintiff's part need not be alleged in the
complaint; that fact is involved in the alle-
gation that the injury was caused by defend-
ant's negligence.-Lee v. The Troy Citizens'
Gaslight Co., 413.

27. Requests to charge which assume that

there is evidence from which the jury may

infer certain facts, when in fact there is no
such evidence, are properly refused.—Id.

28. In an action for the death of a horse caused
by a gas leak, it appeared that defend-
ant's workmen had stopped a leak there an
hour or so before; that plaintiff closed the
stable, and noticing a smell of gas exam-
ined the meter. The Court refused to
charge that if plaintiff had reason to believe
gas was escaping, knew the danger and left
the horse there without providing for the
danger, thinking the escape of gas was not
sufficient to do any damage, he could not
recover. Held, No error; that under the
circumstances negligence was not an in-
evitable and necessary inference.—Id.

29. Plaintiff's intestate, while driving on a
dark night on a street alongside of the tow-
ing path of the canal, drove too far to the
south so that the wagon was partly on the
tow path and partly on the retaining wall
built to protect the embankment leading to
the canal bridge, and the wheels catching
upon the wall, which rose as it approached
the bridge, the wagon was overturned and
intestate was drowned. No one saw the
accident. Deceased was driving on a trot
and it was not shown that he was unskil-
ful, that the horses were unsafe or the
wagon and harness out of repair. Held,
That a refusal to nonsuit was proper; that
whether defendant's failure to maintain a
barrier on its own land between the street
and the wall was negligence was a question
of fact for the jury, and that the facts were
sufficient to authorize a finding that de-
ceased was not guilty of contributory neg-
ligence. Veeder v. The Village of Little
Falls, 445.

30. Defendants conducted a bluestone yard,
and employed S. He had charge of shift-
ing stone, work in the mill and with the
derrick. He had not power to hire or dis-
charge men, and was not general superin-
tendent. Owing to alleged improper orders
given by S. while shifting stone with the
derrick, plaintiff was injured. Held, That
plaintiff and S. were co-servants, and that
plaintiff could not recover against defend-
ants, the masters.-Scott v. Sweeney et al.,
520.

31. Plaintiff was sailing in a yacht when he
signalled defendants that he wished to pass
their draw. He was familiar with the sig-
nals given when the draw was about to
open. He heard these signals (although
they were not addressed to him) when very
near the bridge, but far to the east of the
draw. Proceeding on a westerly tack
nearly parallel to the bridge, and in a posi-
tion where he could not see how far the
draw had opened, he found on reaching it
that it had moved but a few feet, and that
passage was impossible. In attempting to
go about he struck a dock which connected
the piers supporting the draw when swung,

and was injured. He recovered in this
action. Held, That the question of con-
tributory negligence was for the jury.-
Reilly v. The Hudson River Bridge Co., 549.

32 Where plaintiff drove upon a bridge with
a heavy load, wider than the bridge, thereby
pushing out braces necessary to its sup-
port, and the bridge fell, Held, That he
was guilty of negligence, and could not
recover for damages sustained by such fall.
-Lawson v. The Town of Woodstock, 570.
See ABATEMENT; AGENCY, 1; COMMON CAR-
RIER, 5; EVIDENCE, 35, 46; MARRIED
WOMEN; MASTER AND SERVANT; MUNI-
CIPAL CORPORATIONS; PLEADING, 8; RAIL
ROADS, 6, 7, 9-11, 18, 19.

NEGOTIABLE PAPER.

1. A promissory note made by defendant,
payable to his wife or bearer, for value re-
ceived, Held, To be valid in the hands of a
third party; and the wife being dead, the
husband is incompetent to prove that the
note was given without consideration.-
Benedict v. Driggs, 29.

2. A promissory note not made payable to
the payee's order, or to bearer, is not nego-
tiable.-Roe v. Hallett, 34.

3. One who signs his name on the back of a
non-negotiable note, before delivery, can
be held as a maker of the note or as a
guarantor of its payment.-Id.

4. Where a material alteration is apparent
upon the face of a promissory note, evi-
dence in explanation thereof must be given
to entitle it to be put in evidence against
defendant's objection -Evans v. Deming,

71.

5. Therefore, where the note (non-negotiable)
produced showed an alteration in its date,
and the insertion of figures in the body of
the note expressing a larger sum than that
expressed in the words immediately follow-
ing, and the larger sum was claimed, Held,
That the alterations were material, and
should have been explained before receiving
the note in evidence, notwithstanding the
written words would control.-Id.

6. Plaintiff having claimed payment of the
larger sum and demanded it in her com-
plaint, and thus rendered a trial and judi-
cial determination necessary, it was too
late to waive that sum and consent to take
judgment for the smaller sum.-Id.

7. An offer by the maker before suit brought
to pay the smaller sum, but without at-
tention being called to the alteration in the
date, is no waiver of the alterations made.
-Id.

8. The defendant, Eda Rubino, made her
note for $5,000 chargeable upon her sepa-

rate estate, and delivered the same to her
husband, Eugene Rubino, solely for his
accommodation and without any other
consideration. Her husband endorsed said
note and delivered the same to plaintiffs,
who were stock brokers and who agreed to
hold the same as margin or security, and
to purchase, sell and carry stocks, &c., for
said Eugene Rubino until said security or
margin should be exhausted, and not to
dispose of same until after they had de-
manded increased security, or that said
Rubino should take the stocks held for him
at their market price. Subsequently plain-
tiffs sold the stocks, &c., held by them for
Rubino without waiting for the security
thus given to be exhausted, or giving him
notice to increase it, and closed his account,
and brought this suit upon the note to col-
lect a balance alleged to be due them. Held,
That there was a failure of consideration
of the note and the action could not be
maintained. --Raven et al. v. Rubino et al.,
124.

9. The question whether a note was paid and
extinguished, or merely extended, by the
giving of other and successive notes, the
preceding one being given up in each in-
stance, Held, Under the particular facts of
the case to depend upon the intention of
the parties and to be a question for the
jury.-The Bank of Hamilton v. Mudgett,

126.

10. It seems that the certification of a check
will not operate as an appropriation of the
funds by the person procuring such certifi-
cation when, by so doing, he does not in-
tend to make the check his property, but
only to place funds upon which it is drawn
in such a condition that they would be
subordinate to the result of a pending
action.-Zapp v. Miller, 321.

11. An administrator transferred notes be-
longing to the estate to plaintiffs to secure
them as sureties on his bond and also for a
judgment against the estate which they
paid. Held, That the transfer in no man-

ner

worked a devastavit, and therefore
that plaintiffs' title was good; that defend-
ant, who defends solely as maker of the
note, could not raise the question of mis-
application.-Rogers et al. v. Squires, 499.
12. Defendant, who was one of the heirs,
transferred to the administrator by deed all
his interest in the real estate and also all
his right to the personal property, includ-
ing his distributive share. Held, That this
did not discharge him from liability on his
notes, in the absence of an assumption by
the administrator of their payment.―ld.
13. Defendant, sued upon his note, set up a
lack of consideration. He testified that he
hired certain premises for a certain sum, a
further sum to be paid if he made any
money during his occupation. That he
made no money. That, at the end of the

term, defendant threatened to injure his
credit with a friend unless he gave a note
for the further amount; that under these
circumstances the note was given. Held,
That the note was not given in settlement
of a disputed claim, and that the question
of consideration should have been sub-
mitted to the jury.-Farnham et al. v.
Connors, 502.

14. Where a husband, before the married
woman's statute of 1848, borrowed money
from his wife and gave her a nogotiable
promissory note for its payment, and in
1866, in consideration of its surrender, he
executed a negotiable note to his daughter
for the same amount, and afterwards gave
her another in exchange therefor, Held,
That the husband had waived his previous
marital right to the money, and the note
was founded on a sufficient consideration.-
Smith v. Stanton, 523.

See ATTACHMENT, 10; BANKS, 1-5; CON-
TRACT, 18; EVIDENCE, 1, 2, 51; JOINT
DEBTORS; PLEADING, 5, 12.

NEW TRIAL.

See PRACTICE, 6, 16–18; REPLEVIN, 1,

N. Y. CITY.

1. The number of water meters required by
the city was discretionary with the Com-
missioner of Public Works under Ch. 383,
Laws of 1870, and he had authority to bind
the city by accepting those delivered under
the Navarro contract.-Baird v. The Mayor,
&c., of N. Y., 100.

2. Under a contract between the city and a con
tractor, which provides that the latter shall
furnish satisfactory proof that all persons
who have done work or furnished materials,
and have given notice to the Commissioner
of Public Works before or within ten days
after completion of the work that a balance
is due them, have been fully paid or
secured, and in the absence of such proof
that a sufficient sum shall be retained to
pay such claims, the notices of lien may
be given before the completion of the con-
tract, and no other proof is necessary to
accompany them except as to the amount
due the claimants.-The Mechanics
Traders' Nat'l Bk. v. The Mayor, &c., of
N. Y., et al., 247.

&

3. Upon such a contract the city holds the
money only as a trustee and is not liable to
pay interest until after judgment is render-
ed against it.-Id.

See CORPORATIONS, 6; DEEDS, 3-6; ME-
CHANICS' LIEN, 2; OFFICE, 5-8; PER-
JURY, 4.

NUISANCE.

1. The owner of a city lot may fill up his lot
and build upon it, and the surface water