Volume 155 — New York Reports

Cross-appeals from a judgment of the General Term of the late Court of Common Pleas for the city and county of Hew York, entered January 10, 1895, modifying, and affirming as modified, a judgment of the Special Term of that court in favor of plaintiff entered upon the report of a referee. This action was brought to recover damages for the alleged wrongful discharge of plaintiff from defendant’s service. . The facts, so far as material, are stated in the opinion.

Appeal by Maude E. Kimball from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 1897, affirming a decree of the Surrogate’s Court of Kings county denying her petition for the removal of Harriet A. Kimball and John S. James, as administratrix and administrator, and for the appointment of herself as administratrix in their place and stead, of the goods, chattels and credits which -were of Edward C. Kimball, deceased.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 21, 1897, affirming an order modifying a judgment for divorce entered February 11,1891, by increasing the amount of alimony directed to be paid to the plaintiff from four to eight dollars per week.

Appeal, by certification, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1897, affirming an interlocutory judgment sustaining a demurrer interposed by the plaintiff to the third defense set up in the answer. The complaint contains two counts, which are preceded by certain general allegations doubtless intended to apply to both.

This action was commenced in January, 1887, to recover the sum of $9,213.38, the amount of taxes levied and collected from the Sodus Point and Southern Railroad Company, in the town of Arcadia, from 1872 to 1886, inclusive, and paid to the county treasurer of Wayne county, and also to require him to comply with the provisions of the Railroad Act, as amended by chapter 283 of the Laws of 1871, by employing the amount thus recovered in purchasing that amount of the bonds…

verdict, and also affirming an order denying a motion for a new trial. This action was brought to recover damages for a personal injury alleged to have been caused by the negligence of the defendants. The facts, so far as material, are stated in the opinion. The defendants were merely the owners of the license or privilege to post advertisements on this signboard and . were not chargeable in law with the duty of maintaining it in repair.

The nature of the order and the facts, so far as material, are stated in the opinion. The order is appealable to this court. (Code Civ. Pro. §§ 190, 768, 1240, 1323, 3333, 3344; O'Gara v. Kearney, 77 N. Y. 423 ; Peri v. N. Y. C. & H. R. R. R. Co., 152 N. Y. 521; Gillig v. Treadwell Co., 151 N. Y. 552; 12 Am. & Eng. Ency. of Law, 301, 302; Dudley v. Mayhew, 3 N. Y. 9; McMahon v. Rauhr, 47 N. Y. 67; Wilmore v. Flack, 96 N. Y. 512; Hoes v. Edison G. El.

This action was brought to recover damages for a personal injury sustained by a freight brakeman in the employment of the defendant. The facts, so far as material, are stated in the opinion. The court erred in not submitting to the jury the question whether plaintiff knew that the bridge was low, and, therefore, assumed that hazard in continuing in defendant’s employment.

<p>Appeal from a judgment of the late General Term of the Supreme Court in the fourth judicial department, entered March 5, 1895, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion. .</p> <p>The negligence of the plaintiff and his fireman alone caused the accident. (Sutherland v. T. & B. R. R. Co., 35 N. Y. S. R. 853; 125 N. Y. 737 ; Platz v. City of Cohoes, 89 N. Y. 222; Fisher v. Vil. of Cambridge, 133 N. Y. 532; La Croy v. N. Y., L. E. & W. R. R. Co., 132 N. Y. 570.) The flagman of train Eo. 35 was not negligent on this occasion. (Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 356; Dow v. N. Y., L. E. & W. R. R. Co., 22 Wkly. Dig. 283; Sizer v. S., B. & N. Y. R. R. Co., 7 Lans. 67; Wright v. N. Y. C. R. R. Co., 25 N. Y. 566 ; Chapman v. Erie R. Co., 55 N. Y. 579; Cameron v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 400.) The evidence as to Brown’s reputation was_ incompetent and vicious, and ought not to have been received. (Baird v. N. Y. C. & H. R. R. R. Co., 16 App. Div. 496; Haskin v. N. Y. C. & H. R. R. R. Co., 65 Barb. 135.)</p> <p>The evidence warranted the submission to the jury of Brown’s competency for the position of flagman, and as to whether or not the defendant was negligent in employing him in that capacity. (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 564; Keith v. N. H. & N. Co., 140 Mass. 175; Mann v. D. & H. C. Co., 91 N. Y. 500; Laning v. N. Y. C. R. R. Co., 49 N. Y. 521; Whittaker v. D. & H. C. Co., 126 N. Y. 549; Chapman v. Erie R. Co., 55 N. Y. 585 ; McKinney on Fellowservants, § 90; Gilman v. E. R. R. Co., 10 Allen, 233; Baulec v. N. Y. & H. R. R. Co., 59 N. Y. 356; Davis v. D. & M. R. R. Co., 20 Mich. 124; Monahan v. City of Worcester, 150 Mass. 439.) The question of contributory negligence was also properly submitted to the jury. (Wallace v. C. V. R. R. Co., 138 N. Y. 302; Knupfle v. K. Ice Co., 84 N. Y. 488; Wasmer v. D., L. & W. R. R. Co., 80 N. Y. 212; Fisher v. Vil. of Cambridge, 133 N. Y. 527.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint should have been dismissed because it did not state facts sufficient to constitute a cause of action for the reason that, as matter of law, the article was not a libel upon the plaintiff. (Stone v. Cooper, 2 Den. 293.) The complaint should have been dismissed, for the reason that the article is not libelous per se, and no special damage was alleged or proved.

The town, of Fort Edward, in. Washington county, embraces a territory about ten miles long and three or four miles wide, with a population of 6,000 people. It contains two villages, Fort Edward, with a population of nearly 4,000, and embracing a territory of about one square mile, and Fort Miller, a very small place, eight or nine miles from Fort Edward.

The facts, so far as material, are stated in the opinion. The act is properly entitled. (Wenzler v. People, 58 N. Y. 516 ; Sullivan v. Mayor, etc., 53 N. Y. 652; Sweet v. City of Syracuse, 129 N. Y. 331; Astor v. Arcade R. Co., 113 N. Y. 93.) The act is not offensive to the provisions of section 18 of article 6 of the Constitution.

The facts, so far as material, are stated in the opinion. The powers conferred by sections 915 and 920 of the Code of Civil Procedure are to be strictly construed and are exclusive. (Suth. on Stat. Cons. §§ 391, 392, 399; Terry v. McNiel, 58 Barb. 241; Wittenbrock v. Mabins, 57 Hun, 146; Matter of U. S. P. L. Co., 16 App. Div. 188; Dudley v. Mayhew, 3 N. Y. 9; Matter of Whitlock, 51 Hun, 351; Code Civ.

<p>1. Appeal — Presumption that Reversal was upon the Law. When, on appeal from a judgment and order of a late General Term reversing a judgment entered upon a decision of the court on a trial without a jury and granting a new trial, neither the judgment nor the order states that the reversal was based upon the facts, the Court of Appeals must, by force of section 1338 of the Code of Civil Procedure, presume that the reversal was based upon the law; and if no error of law appears upon the record, the judgment and order must be reversed.</p> <p>2. Executors—Personal Contracts for Services. The contracts of executors for services to be rendered are their personal contracts, and do not bind the estate; and this rule has not been changed by section 1814 of the Code of Civil Procedure.</p> <p>3. Executor an Attorney at Law — Services oe Copartner. Although an executor who is an attorney at law cannot have compensation for professional services rendered by him to the estate, and if, having a partner, he employs his partner in business of the estate, no charge can he made by the firm, yet, if the executor is excluded from all participation in the compensation, his partner may be paid like any other person for similar services, and the executor may, as an individual, employ his partner, as an individual, to do work for him in matters of the estatej outside and independent of the copartnership, and become personally liable therefor.</p> <p>4. Employment of Attorney by ms Copartner—Action for Services. The fact that the parties were copartners at the time of the employment is not conclusive, as matter of law, against the right of an attorney to recover in an action brought by him individually against an executor individually, for services in matters of the estate claimed to have been rendered on the employment of the defendant, outside and independent of the partnership.</p>

Tliis was an action upon a policy of fire insurance. The facts, so far as material, are stated in the opinion. The contract of insurance was enforceable only in the event of the “ total destruction” of the premises, and there was no total destruction within the meaning of the policy.

The facts, so far as material, are stated in the opinion. This act does not violate section 10 of article 8 of the Constitution. (People ex rel. v. Banks, 67 N. Y. 568.) The act does not violate section 18 of article 3 of the Constitution because of the exemption of the county of Madison. (People ex rel. v. N. & S. P. R. Co., 86 N. Y. 1; People v. O'Brien, 38 N. Y. 193 ; People ex rel. v. Bd. Suprs., 112 N. Y. 585; Const.

Motion to dismiss an apjieal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1898, affirming a judgment in favor of plaintiff, entered upon a verdict, and an order denying a motion for a nexv trial. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the late General Term of the Supreme Court in the fourth judicial department, entered March 9, 1895, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a. • new trial.</p>

<p>Appeal from an order of the Board of Claims of the State of New York made June 25, 1895, dismissing a claim filed by the appellant with the board against the state.</p>

<p>Appeal from a judgment of the General Term of the late City Court of Brooklyn, entered June 29, 1895, affirming a judgment in favor of defendant entered upon a dismissal of the complaint at a Trial Term.</p>