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also an allegation that the contract in ques-
tion had been abandoned and a new one
substituted therefor and that plaintiffs were
paid in full, Held, That an order allowing
the answer to stand on payment of costs
would be upheld on the ground that the
answer ought to stand as it was to fairly
carry out the object of the stipulation.-
Smith et al., v. Brady, 468.

As to practice on appeal, see APPEAL, 4, 5, 8,
11-13, 17, 18.

As to practice in criminal cases, see BLACK-
MAIL, 1, 3; CRIMINAL LAW, 1, 3-5; MUR-
DER, 4-8.

As to practice in contempt proceedings, see
CONTEMPT, 3.

As to practice in different classes of cases, see
those titles, as ATTACHMENT, 12; CERTIO-
RARI, 3; CIVIL DAMAGE ACT, 1, 2; COM-
MON CARRIER, 2; EMINENT DOMAIN, 2, 6,
7, 9, 10, 12: NEGLIGENCE, 3, 6, 8, 9, 11, 14,
15, 17-19, 22-24, 27-29, 31; NEGOTIABLE
PAPER, 9, 13; RAILROADS, 9-11, 17; SLAN-
DER, 1.

See also AGENCY, 3, 4; ATTACHMENT, 2; AT-
TORNEYS, 13; BANKS, 9; CORPORATIONS,
5; DEPOSITIONS, 6; EVIDENCE, 16, 23, 24,
36-38, 42, 47, 48; FIXTURES; FRAUD, 17,
18; JUDGMENT, 3; MORTGAGE, 15; PLEAD
ING, 1, 5, 9; VENUE.

PRINCIPAL AND AGENT.

See AGENCY.

PRINCIPAL AND SURETY.
See SURETYSHIP.
PUBLICATION.
Sce TAXES, 8, 9.
PUBLIC HEALTH.
See INJUNCTION.

RAILROADS.

1. The complaint alleged that the corporation
in which plaintiffs were stockholders leased
their road to the Erie R. Co. for a specified
rental, a certain portion of which was to be
applied as dividends on the stock; that a
receiver was appointed of the Erie Co. to
whose rights the other defendants succeed-
ed; that the lessee had obtained control of
the lessor; and that the officers of both
companies are the same persons; that a con-
spiracy was entered into by the defendants
to depress the price of the lessor's stock,
and to accomplish this they refused to pay
the rent to be applied to pay dividends and
those controlling the lessor refused to de-
mand and collect said rent. Held, That an
action for an accounting of receipts of the
leased road and for payment of said rent

could be maintained by plaintiffs as stock
holders and that the allegations of con-
spiracy were material and proper.- Barr et
al. v. The N. Y., L. E. & W. RR. Co. et
al., 3.

2. The intent of 2 of Chap. 513, Laws of
1860, providing for the construction of de-
fendant's road, was to authorize the collec-
tion of a certain sum for each car, to be
fixed by the sum paid by other railroads in
the city, and as a majority of those which
pay a license pay $50 per car, and only one
pays less, it is clear it was intended to in-
clude the majority. If there is any ambig-
uity as to the amount of the license the
greater
amount should be taken.-The
Mayor, &c., of N. Y. v. The B'way &
Seventh Ave. RR. Co., 145.

3. The sum reserved by defendant's charter
or prescribed by the city ordinance is
neither a tax, penalty nor fine, and the
statutes and rules applicable to cases of
that character do not apply.—Id.

4. Where a railroad neglects to ascertain and
pay its license fees interest thereon is allow-
able.-Id.

5. When a passenger on a railroad train has
mislaid his ticket, and is in good faith try-
ing to find it, he is entitled to a reasonable
time to do so, and if in case he fails to find
it he is willing and ready to pay his fare
the conductor has no right to put him off
the train.-Hayes v. The N. Y. C. & H.
R. RR. Co., 237.

6. A passenger about to board a train at a
station has a right to suppose, in the ab-
sence of a notice to the contrary, that the
way to the train is safe, and he is not bound
to anticipate that an engine will back into
the station upon another track, without
warning, when the passenger train is mov-
ing in the station just before it is to stop.-
Pineo v. The N. Y. C. & H. R. RR. Co.,
287.

7. It does not bar recovery for causing the
death of a child that her father has eman-
cipated her or is dead.-Id.

8. Plaintiff, who had been drinking, was
ejected from defendant's cars for disturb-
ing passengers and for non-payment of fare,
as alleged. It did not appear that he was
ejected with much force, but after being
put out, or as a consequence of being put
out, he fell into a ditch about five feet deep
by the side of the track and sustained

heavy bruises." He testified that he was
a laboring man; that after the occurrence
he twice consulted a physician; that he
suffered much pain and that he did no work
for seven weeks. He offered no medical
testimony as to his injuries. He recovered
$1,000. Heid, That even conceding that
his expulsion was unjustifiable, the dam-
ages were excessive.-Reilly v. The D. & H.
C. Co., 290.

9. Where defendant was guilty of gross neg-
ligence in shunting its cars across the street
of a populous village, without any person
upon them to give warning or exercise con-
trol over their movements, and the deceased,
who was carrying a basket of coal, may
have had his attention diverted by the mov-
ing trains upon the further tracks, &c.,
Held, a proper case for the jury to deter-
mine whether plaintiff was chargeable with
contributory negligence in not observing
the approaching cars before attempting to
cross.- Woodard v. The N. Y., L. E. & W.
RR. Co., 435.

10. Where, in such cases, the Court charged
that defendant's negligence was established
as a matter of law, but no exception thereto
was taken, nor did the defendant ask the
Court to submit the question to the jury,
Held, That error in the charge in reference
to sounding the whistle, &c., or as to de-
fendant's negligence, was not available on
appeal.-Id.

11. Plaintiff was injured by falling from a
sidewalk crossing a ditch on a dark night.
There was no guard to the sidewalk and
the ditch was constructed by defendant's
predecessor to carry off surface water. Re-
pairs to the walk had always been made by
defendant and it did not appear that the
village ever exercised any control over it.
The question of defendant's liability to
maintain the crossing over the ditch was
submitted to the jury and they were charg
ed that from the evidence they had a right
to find that defendant agreed to do so. Held,
No error.-Babcock v. The N. Y. C. & H. R.
RR. Co., 477.

12. Evidence as to the manner in which side-
walks were built across similar ditches in
adjoining cities is inadmissible.-Id.

13. The regulation of an elevated railway
company forbidding passengers to stand
upon the platform is a reasonable and
proper one, and if there is room inside the
cars which can conveniently be reached,
and a passenger refuses a request to leave
the platform, the servants of the company
may properly and lawfully eject him at the
nearest station.-Graville v. The Manhattan
R. Co., 483.

14. But where, on refusal, the conductor un-
dertakes to compel the passenger by phy-
sical force to obey the regulation and to go
into the car, there being no exigency which
requires immediate action, the company is
liable for his unjustifiable assault; this irre-
spective of the question whether there are
seats in the car or not.-Id.

15. If a passenger on a street railroad is
ejected from the car and assaulted by the
driver when the fare has been put in the
box (there being no conductor), the com-
pany are liable, and also for causing the

arrest of such passenger.- White v. The
23d St. RR. Co., 510.

16. A passenger who surrenders his ticket
and receives a stop over check permitting
him to stop over only at certain stations
designated, cannot, after stopping at a
place not specified, resume his journey on
another train and insist upon being carried,
upon the face of the check, to the place
of original destination.-Loomis v. Jewett,
511.

17. Whether a farm house situated about
thirty rods distant on another highway is,
in a dark night and when its vicinity is un-
known to the passenger, a near dwelling
house within the meaning of the statute
authorizing the conductor, in case a pas-
senger refuses to pay his fare, to put him
off at any usual stopping place or near
any dwelling house, as the conductor shall
elect," is a question of fact for the jury
under proper instructions from the Court.
-Id.

18. Whether the sending of an engineer in the
night time in charge of a locomotive engine
when he was suffering from over-work and
loss of sleep, and refusing his request to be
allowed to go home and rest, was negli-
gence, so as to render the company liable to
a co-employee for injuries directly attribut
able to his condition, is a question for the
jury.-Bauer v. The N. Y., L. E. & W.
RR. Co., 532.

19. But the company is not responsible for
such injury if it was not the result or conse-
quence of that condition of the engineer
which made it improper to send him in
charge of the engine, but was the result of
his negligence and want of care, uninflu-
enced by that condition; as, by disobeying
an order to stop at a certain station, where-
by a collision occurred, killing plaintiff's
intestate, who was a fireman upon the other
train. The jury cannot be permitted to
infer that his mere forgetfulness of the
order was attributable to his condition
under the circumstances of this case.-Id.

See ASSESSMENTS, 3; COMMON CARRIER, 1-3;
EMINENT DOMAIN; EVIDENCE, 22, 25, 32
NEGLIGENCE, 3, 5, 6, 8, 9, 12, 15, 16, 19;
PLEADING, 4.

RECEIPT.

1. A written instrument, not under seal, ac-
knowledging the receipt by one of the par-
ties of $250 in full payment of all claims
and demands which he had against the
other party by reason of a certain note for
that amount (not at present at hand) and
also in full payment of any and all claims
and demands that he had against the other
in any way, they having made a settlement,
is not a release, but is in the nature of a
receipt, and should not be construed as
evidencing the payment of a larger by a

smaller sum, nor as applying only to the
note specifically mentioned in it. The fair
import of its terms is that the parties had
made a mutual settlement of their respective
claims, and the payment of $250 was for the
balance found in favor of one of them.—
Peck v. Peck, 83.

2. The giving of a receipt which specifies a
particular claim only, raises no legal pre-
sumption against the existence of another
claim.-Maxfield v. Terry, 99.

RECEIVERS.

See CORPORATIONS, 11; COSTS, 1; LEASE, 3,
4.

RECORD.

1. A record of the assignment of a written
instrument preceded by a memorandum
referring to the book and page where such
instrument has been previously recorded is
a sufficient compliance with the statute and
is admissible in evidence.-Putnam v.
Stewart, 332.

2. If conveyances are properly recorded
memoranda made by the clerk in the proper
places, rendering the records intelligible,
are within the incidental powers conferred
upon the recording officer.-Id.

REFERENCE.

1. In an action on a draft plaintiff testified
that defendant was accustomed to overdraw
his account to purchase cheese for R. & S.
and would make it good by drafts on said
firm; that when he began to draw time-
drafts security was demanded and he was
distinctly told that he would be held first
as drawer, and that after the failure of R.
& S. defendant said that he was abundantly
able to pay these drafts. Defendant testified
that R. & S. gave plaintiff their bond with
surety conditioned to pay these drafts, and
that defendant told plaintiff's cashier that
he could not afford to take any risk on the
drafts. Held, That the referee's finding in
favor of plaintiff being on evidence both
contradictory and admitting of contradic-
tory inferences must control.-The Herkimer
Co. Nat'l Bk. v. Rust, 149.

2. Where the referee's findings cover all the
issues and are sustained by the evidence a
refusal to make other or additional findings
is correct. The Bank of Attica v. The
Metropolitan Nat'l Bk., 156.

3. When a referee makes his report within
the statutory time and notifies the attorneys
that it is ready and at their disposal and
also of the amount of his fees, it is a suthi-
cient delivery of such report to prevent the
forfeiture of his fees by the termination of
the reference under § 1019 of the Code of
Civil Procedure, and in such a case it is
not necessary for the referee to file his

report with the clerk in order to have it
preserve its validity.-Little v. Lynch, 375.

4. Where a referee had made his report, al-
though judgment has not been entered upon
it, he has no power to make additional
findings. So held, where the referee had
found the facts in question but, by inad-
vertence, had omitted them from his report.
The facts were material and necessary to
support the conclusions of law.-Gardiner
et al. v. Schwab et al., 415.

5. On an appeal from a judgment entered up-
on the report of a referee when the evidence
is not spread upon the record every pre-
sumption is in favor of the referee's report,
and the court will, in reviewing the judg.
ment, intend that the referee found such
facts in favor of the party recovering as are
essential to support it.-Talcott v. Smith et
al., 562.

See ATTORNEYS, 13; OFFICE, 2.

REFORMATION.

See CONTRACT, 21, 22.

RELIGIOUS CORPORATIONS.

1. In the absence of any action by the con
gregation fixing the salary of a minister, the
trustees of a Methodist Church have no
power to enter into a contract of employ-
ment of a minister at a stated salary.-
Landers v. The Frank St. M. E. Ch., 20.

2. Under the laws and regulations of the
Methodist Church the minister renders ser-
vice, not on an agreed salary, but on an
allowance for support to be raised by vol-
untary contributions. The entire policy of
the church is opposed to the existence of a
contract relation between the minister and
the society. Id.

REMEDIES.

See SALE, 10, 11.

REPLEVIN.

1. Where in an action brought in a justice's
court to recover the possession of a chattel,
the value as fixed by the pleadings exceeds
fifty dollars, the appellant is entitled to a
new trial in the county court, although no
value was fixed or assessed by the justice
in the judgment rendered.-Reynolds v.
Swick, 476.

2. A defendant who, in an action to recover
a chattel, obtains a verdict for the return
of a portion of the goods replevied, ex-
ceeding $50 in value, as assessed by the
jury, is entitled to costs under § 3234 of
the Code, although the plaintiff may also
be entitled to costs, and although there was
but one count in the complaint and but one

cause of action set forth.-Ackerman et al.
v. De Lude, 544.

See SALE, 10, 11; SURETYSHIP, 1.

RESCISSION.

See CONTRACT, 19.

REVOCATION.

See DEEDS, 8.

RIPARIAN OWNERS.

See EASEMENT, 5-7.

ROCHESTER.

1. Under the charter of the city of Rochester
the common council may increase the sal-
ary of the police justice for the remaining
portion of a partly expired fiscal year.-
Truesdale v. The City of Rochester, 218.

SALE.

1. Where a farmer is unable to deliver all the
barley raised upon his farm according to
the contract, but agrees to purchase and
deliver barley of the same quality to make
up the deficiency, it will be presumed that
a delivery in the mode and manner as
under the original contract was contem-
plated by the parties, and when a delivery
by the wagon load was acquiesced in, the
seller cannot be required to deliver the
whole of the deficiency in bulk.- Van
Sickle v. Nester, 46.

2. If the seller tender a load of barley corre-
sponding in all respects with that required
by the contract, and the buyer refuses to
accept, such refusal dispenses with the
necessity of any further tender of other
barley.-Id.

3. Where a seller tenders three loads of
barley and the buyer examines them, and
one load is of the quality required by the
contract, but the buyer refuses to accept it
except upon a condition that he has no
right to impose, the seller is excused from
making a separate tender of that load. -Id.
4. Under such a contract the seller is not
required to have the whole amount of
barley on hand ready for delivery, and the
wrongful refusal absolves him from pur-
chasing any further.-Id.

5. Where plaintiffs purchased certain barrels
of sugar of defendant at a specified price
per pound, to be weighed and taken the
following morning, and during the night
the same were damaged by rain, Held,
That defendant continued to be the owner
and the loss by rain fell on him; that
plaintiffs could refuse to receive the sugar
and recover the amount paid by them on
the contract.-Fogerty et al. v. The Conti-
nental Ins. Co., 61.

6. The sale, by written agreement not under
seal, of standing timber, with the intention
that the vendee should cut and remove the
same, is sufficient to pass title to the grow-
ing trees, and changes them from real to
personal property as between the parties.—
Lyon v. Wing et al., 144.

7. Where plaintiff's possession of a lot of
land was such only as was necessary to
enable him to take off the standing trees,
Held, That such possession was not notice
of plaintiff's rights to a subsequent pur-
chaser of the lot.-Id.

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9. Upon a contract for the purchase of a
horse, it was agreed that the purchaser
should take and use the horse, and if it
drove to suit him he was to keep her and
pay therefor a certain sum. Before the
purchaser had signified, or expressed, to
the seller, his satisfaction with the horse
and his determination to keep it, the horse
became sick and died. Held, That no
property in the horse had passed to the
intended purchaser, and he was not liable
for the price.-Carter v. Wallace, 539.

10. Where a vendor has brought action of
replevin on the ground that the goods were
obtained from him by fraud, and while
such action is pending he cannot divide
his action and sue upon contract to recover
the value of the goods not taken in the
replevin proceedings.- Wile et al. v. Brown-
stein, 559.

11. Section 1719, Code Civ. Pro., furnishes
no authority for such procedure.—Id.
See BAILMENT; FRAUD, 4, 14; WARRANTY.

SCHOOLS.

1. The Board of Education of a school dis-
trict organized under Title 9, Chap. 555,
Laws of 1864, has power to employ legal
counsel.-Gould v. The Board of Education
of Union Free School Dist. No. 9, 133.
See TAXES, 5, 6.

SERVICE.

1. Proof which merely shows discrepancy in
the othicer's return of service of a summons,
which discrepancy does not invalidate the
service but shows that it was properly
made, is no impeachment of the service.-
Huntley v. Baker, 226.

SERVICES.

See CONTRACT, 24; EVIDENCE, 26.

SET-OFF.

1. In ascertaining the amount to be paid to
the assignee of all the interest of a legatee
under a will, the claim of the executor
against the legatee on a note made to the
testatrix by a partnership of which said
legatee is survivor may be set-off or re-
tained against the legacy, the note, at the
time of the assignment, being in the exec-
utor's hand and past due.-Ferris v. Bur-
rows et al., 296.

2. Where an answer sets up facts which are
not available as a defense but establish an
equitable right of set-off, defendant is en-
titled to the benefit of such facts so far as
to discharge plaintiff's claim, although the
same are not alleged as a counterclaim.-
Baker et al. v. Hotchkiss, 449.

3. Whoever takes an assignment of an over-
due debt or obligation takes it subject to
all the equities of the person who makes
the assignment, and the debtor has against
him the same equities as against the as-
signor. Littlefield v. The Albany Co. Bk.,
impld., 489.

4. Plaintiff on buying out his partner J.'s
interest in the firm gave him certain prom-
issory notes in payment, on the agreement
that plaintiff should attend to the prosecu-
tion of an appeal from a judgment against
the firm, and that J. would pay half the
expenses and of the judgment if affirmed.
J. became insolvent and assigned the notes
to defendant after maturity and judgment
was recovered upon them. Plaintiff was
compelled to pay the judgment against the
firm. Held, That he was entitled to have
half of the amount paid by him on the
judgment and for expenses thereon set off
against the judgment recovered on the
notes.-Id.

SEVERANCE.

See ASSESSMENTS, 9.

SHERIFFS.

1. Ordinarily a sheriff who is sued for taking,
on process, a stock of goods from the pos-
session of an assignee for the benefit of
creditors, and removing them from his pos-
session, is not entitled to demand a bill of
particulars of the items of the stock of
goods so seized and taken; but if, after the
commencement of the suit a portion of the
goods remaining undisposed of in the hands
of the sheriff is returned by him to such as-
signee, the latter may be ordered to furnish
the sheriff with a bill of particulars of the
goods so returned.— Hayes v. Davidson, 38.
2. The authority given by Chap. 462, Laws
of 1884, to a judge adjusting the fees of a
sheriff upon an attachment to order the
payment of such fees is prospective in its
character and does not give authority to

order the payment of fees previously ad-
justed.-Hall et al. v. The U. S. Reflector
Co., 425.

3. When the plaintiff in an action in which
an attachment has been issued has served
notice upon the sheriff releasing the attach-
ment from the property seized, he is not
liable for the fees and expenses of the
sheriff incurred while retaining the prop-
erty for the purpose of maintaining lien
upon it for fees previously accrued.―ld.

4. A sheriff who has commenced an action to
foreclose a lien upon property attached for
fees upon the attachment under which he
seized it, on which he has made the plain-
tiff in the attachment a party for the pur-
pose of holding him liable for any defi-
ciency, cannot avail himself of the remedy
provided by Chap. 462, Laws of 1884, and
procure an order directing such fees to be
paid.-Id.

5. To authorize the granting of an order under
SS 1421-1427 of the Code, substituting the
indemnitors in place of the sheriff, it must
affirmatively appear in the motion papers
that the applicants became indemnitors be-
fore the commencement of the action.-
Hayes v. Davidson, 467.

6. As to whether an order can be granted
where the property taken was seized under
separate and distinct levies at different
times, as to some of which only indemnity
has been given, and where the indemnity
refers to different seizures, the penalties
vary largely in amount and some of the in-
demnitors do not apply, quære.—Id.

See ATTACHMENT, 5-7; CONVERSION, 1, 2
INDEMNITY, 2; PERJURY, 5.

SLANDER.

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1. The defendant, who was a partner in bus-
iness of plaintiff, said of the latter to a
third person:
He is a thief. When I
came down town this morning my book-
keeper reported to me that he had gutted
the drawer." In an action for slander,
Held, That the words first uttered imputed
a crime, and that whether the qualification
added so reduced the charge as not to in-
clude the crime of theft, was properly sub-
mitted to the jury.-McGibbon v. Young,

12.

2. It is slanderous per se to falsely assert that
a person has scuttled a ship to get the in-
surance -Id.

3. In an action for slander consisting in the
two charges above referred to a verdict
for $3,000 damages is not excessive.-Id.

4. The husband is a proper party defendant
with his wife in an action for slander
spoken by the wife.-Fitzgerald v. Quann,
138.

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