CAMPBELL V. CITY OF NEW YORK.
the present defendant is the successor in interest, the consideration of .which conveyance was the promise of the railroad company to locate, . ,This was in 1872. erect, and maintain its depot on the land It alleges that the rail(oadcompanydid erect and maintain its depot there until 1883,-l1years,-when it changed its depot, and put it about three-quarters ofa mile away; whereupon they claim that the consideration has failed, that therefore the conveyance' also falls, and that they should be restored to the title and possession of the property. It ,is alleged that this contract or promise on the part ofthe railroad company was the consideration of the deed, it containing the following cIause, namely: "As a part consideration, the party of the second part is to locate, erect, and maintain upon the grounds hereinbefore described, its depot for the transaction of its business in the town of Boulder." Then, after alleging that there was a money consideration of one dollar specified, the bill avers that it was not in fact paid, and was nota real consideration, the solitary consideration being the said promise of the railroad company. Now counsel insists that this iss. condition subsequent, which, having failed, the title reverts. I think not. The erection and maintenance of the depot is stated to be a consideration, a consideration perhaps in the nature of a condition subsequent; but the conveyance does not purport to be one upon condition that the p;rantee will perform, but it is a conveyance in consideration of its promise to erect and maintain. That consideration it has partially performed; for 11 years it has maintained its depot there, although it may be and is, according to the lan.guage of th'tfbill, true that it has not paid all the consideration,-that it has or up to the time continued its depot there. Under those circumstances, where there is a part performance,-a part payment,-the title does not revert. There may be a cause of action for damages; but the title does not revert upon s. mere partial failure of the consideration. The demurrer to the bill will be sustained and the bill dismissed.
CAMPBELL t1. MAYOR,ETo., OF
(Oircuit Oourt, 8. D. NeuJ York. February 15,1888.)
In a suit in equity some defendants tlle.d pleas, and then obtained leave to withdraw them, while other defendants demurred. It being doubtful whether to be the better practice to postor not the pleas were before the court· . pone action on the pleae until the hearing on the demurrer.
In Equity. On pleas to supplemental bill. Harvey D; Hadlock, for plaintiff. George Blia and Mareua P. Nurton, for defendants filing pleas.
J. A bill, called a "supplemental bill," appears to have by a party other than the orator, against the orabeen filed in this tor and others. To that bill some of the defendants filed pleas, and some a demurrer. The demurrer appears to be set down for argument at the next term. The pleas do not appear to be set down for argument at all, or traversed. When the cause was reached on the calendar it was taken on briefs to be su bmitted as to one plea, in the absence of counsel for the orator in the supplemental bill, at the request of counsel for the party filing the plea. Since then it is made to appear that leave had been ob· tained to withdraw the pleas, and that notice had been given by counsel who obtained the IOllive that the pleas were withdrawn. ,The plelliS, or some of them, may have been renewed, or there may be question as to the effect of the withdrawal. However these things may be, there is so much doubt whether there is allY question upon the plea, or in regard to it, properly now before the court, that it seems best to continue the whole to the hearing on the demurrer. Hearing on pleas continued to hearing on demurrer.
ROBOSTELLIV. NEW YORK,
N. H. & H. R. Co.
January 81,1888.) N
(Oircuit Oourt, 8. D. New. York.
PASSENGEltS- SAFE CARRIAGE- HOLDER OF " .
If a passenger on a railroad train, in: good faith, and without attempt to conceal his identity, preselltfor his passage a non-transferable commutation ticket issued to anotp.er, and his claim, ill recognized, an,d he is carried as a passenger, he is entitled to the right of a passenger to be carried safely, and to have a safe place to alight and leave the road, '
SAME-CARRIAGE OF PASSENGERS-RUNNING TRAIN PAST STATION-RATE OF SPEED.
The running of a railroad train at a high rate of speed, at an unusual hour, and without warning, past a train standing at a platform discharging its passengers, who, to reach their destination, must cross the track of the moving train. is evidence not only of neglect of common care, but of recklessness and gross negligence. Whether or not a passenger on a railroad train, in alighting upon " track running at tlle side of the train, instead of at the platform,'ill guilty of negligence, is a question of fact for the jury to determine from all the circumstances. . In an action against a railroad company for the death of plaintiff's intestate, after the jury were instructed that the plaintiff could not recover if the want of prdinarycare on the part of the deqeased contriJ>utea to the injury, a juror asked iUhe fact that deceased had alighted UDon side of the track before would give hjPl the right to do so a&,ain"to whicb, answer was made that this was alllElft tdthe jury. ,Held that. In view of the former instruction, the an' , " swer was not misleading.
3. NEGLIGENCE-CONTRIBUTORy-CROSSING TRACKS FROM DEPOT.
SAME-CONTlm3UTORy.:.-.PROVINCE OF JURY.
At Law. On motion fora new trial. Action by Maria Robostelli, administratrix of the estate of Joseph Robostelli deceased, against the New York, New Haven & Hartford Rail-