Volume 3 — Silvernail Court of Appeals Reports

<p>1. Appeal. Dismissal of complaint.—Where the court below has refused to submit the evidence to the jury, and dismissed the complaint, the court of appeals must assume, in favor of plaintiff, the existence of every pertinent and material fact, which the jury might have legitimately found from the evidence introduced, or from any evidence that was erroneously excluded from the consideration of the jury.</p> <p>2. Statute of frauds. Consideration.—In addition to a good consideration, which all promises must have, a valid promise to pay the debt of a third person must have a good consideration moving to the promisor from the debtor or creditor.</p> <p>3. Same. Original promise.—The distinguishing characteristic, which removes a class of cases from the operation of the statute of frauds, is that there is a new and independent consideration moving either from the original debtor or creditor to the promisor; or, in other words, that there is a new and distinct consideration, independent of the original debt, and one moving between the parties to the new promise.</p>

<p>Appeal from an order of the general term of the supreme court, reversing an order of the county judge, awarding to the relator the custody of his minor child upon a writ of habeas corpus.</p>

This action was brought for the partition of real estate by authority of section 1537 of the Code. The plaintiff is one of the children of Mary Ann Yandewater, who left a will, by which, after directing her debts and funeral expenses to be paid and giving a couple of legacies, she made the following disposition: “ Fourth.

<p>1. Voluntary payment. Burden of proof.—The plaintiff, in an action to recover back money voluntarily paid to a city to discharge an assessment, has the burden of showing that the assessment was void.</p> <p>2. Municipal corporation. Assessment.—The assessors, in making a flagging assessment, are not bound to disregard a lease which is treated as valid by all the persons interested.</p> <p>3. Same. Invalid lease.—Where land is not shown to be agricultural land, and there is no finding to that effect, a lease thereof is not invalid, under section 14 of article 1 of the Constitution, on the ground that it is a lease of agricultural land, and for a longer period than twelve years.</p> <p>4. Same.—Where there is no allegation in the complaint, and no evidence or finding, that the land was assessed for the flagging for an amount exceeding one-half of its value, the provisions of sections 4 and 5 of chap. 169 of Laws of 1861, even if applicable, were not violated.</p> <p>5. Appeal. Case.—Where there is an exception to a ruling of law, the court of appeals will assume that the case contains all the evidence bearing upon that exception, and there is no ground to claim that some of the evidence given upon the trial may not appear in the record.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>1. Collateral Inheritance tax. Churches.—Money, bequeathed to a church to be used for the building or renovation of a church edifice, cannot be treated as real estate, and the bequest is subject to the collateral inheritance tax.</p> <p>2. Same.—Chap. 398 of Laws of 1890, is prospective in its operation and does not apply to a tax which became due and payable before its passage.</p>

<p>Municipal Corporations. Police.—It is a matter for the police commissioners to determine whether the reason given for the absence of a police officer from roll call without leave, or the nature of the disease which incapacitated him from duty, were such as to excuse him from severe punishment; and where the evidence establishing the offence is undisputed, no case is made for the interference by the appellate court with the conclusions of the commissioners, as to his guilt and dismissal from the police force.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order denying a motion to set aside service of summons.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order requiring the purchaser to complete the purchase of premises bid off at a sale in pursuance of a judgment of- foreclosure.</p>

<p>Parties. Waiver.—Though the decree of the surrogate may not have authorized the plaintiff, who was the assignee of a claim represented by such decree, to bring an action in his name upon the administrator’s bond,yet, where he was entitled, at the time of the commencement of the action, to the money due upon the decree, and the complaint set forth all the facts requisite to the objection that he had not legal capacity to sue, such objection, if not raised by demurrer, is waived; and error cannot, upon appeal, be predicated upon the fact that the person, in whose favor the decree was entered, was the proper party to bring the action.</p>

<p>1. Appeal. Exception.—Where there is a conflict of evidence upon a matter at issue, an exception to the refusal of the referee to find the fact in the affirmative is not well taken.</p> <p>2. Same. Finding of referee.—It is sufficient, on a review in the court of appeals, that there is some evidence to support a finding of a r.eferee, or to sustain his refusal to find as requested. In such case, the question of the weight of evidence is not before the court for consideration.</p> <p>3. Same. Conflicting findings.—In case a referee’s findings of fact are inconsistent, the appellant, on appeal, is entitled to the benefit of the finding the most favorable to him, unless the appellate court can reconcile and harmonize them so as to give effect to both of them.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee.</p>

<p>1. Witnesses. Credibility.—The testimony of a party to an action, even though uncontroverted by any evidence on the part of the adverse party, presents only a question of fact which must be deemed, on review in the court of appeals, to have been conclusively disposed of in the court below. His relation to the action is such as to present the question of his credibility for the consideration of the jury or trial court.</p> <p>2. Brokers, stocks.—A customer, who directs brokers to buy and sell stock, is not chargeable with a price which the stock may have had prior to the time the order was given, or greater than it then had, unless she consented to adopt such greater price of a prior purchase by the brokers. The mere fact that at the time of the creation of the agency, they had on hand stock which they had previously purchased, did not permit them to hand over the certificates of it in execution of the order at the price they paid for it, if that was greater than the price at the time the order was given.</p> <p>3. Same.—The brokers may adopt and are chargeable with the price for which they actually sold the stock, in case they exercised good faith and reasonable skill in selling it.</p> <p>4. Same.—Where there is no evidence to warrant the inference that the sale of the stock was not actually or in bad faith, made by the brokers at the price entered in the account with their customer, it is error to submit this question to the jury.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a decision of the court.</p>

<p>Motion to amend remittitur herein.</p>

<p>1. Negligence. Question for the jury.—Where in an action hy a conductor of a street car to recover damages for injuries received from a collision with a truck, a prima facie case that the truck belonged to defendant’s firm, and that the driver thereof was in its employment when he negligently ran against the plaintiff, is sufficient to warrant the submission of the case to the consideration of the jury, and make it incumbent upon the defendant, if his firm did not in fact own the truck or employ the driver, to produce some evidence upon the subject.</p> <p>2. Same.—The facts, in this case, held sufficient to make out a, prima facie case against the defendant.</p> <p>3. Same. Judicial notice. Imputed negligence.—Where the nature of the relation between the driver and the conductor of the street car is not shown, but it appears that the latter, by means of signals to the former, stopped the car to let off and take on passengers, and the record does not otherwise disclose whether the driver was subject to the orders of the conductor, or was in any way under his control, there is not enough evidence to permit the jury to pass upon the question, the court will not take judicial notice of their relations for the purpose of reversing the judgment, nor can the negligence on the part of the driver of the car be imputed to the plaintiff.</p>

<p>Appeal. Verdict directed by court.—Where each party moves for a verdict in Ms own favor, upon a trial by a jury, and neither asks to go to the jury upon any question, it must be presumed that both intends to waive the right of submission to the jury, and to consent that the court shall decide the questions of fact as well as of law; and, in such case, every fact, having the support of sufficient evidence, will, on appeal, be presumed to have been found in favor of the successful party, notwithstanding a statement of the trial judge that he will hold the facts to be established in accordance with the theory of the party against whom the verdict was directed.</p>

<p>Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered upon a verdict.</p>

<p>Appeal from a judgment of the general term of the supreme court affirming a judgment entered upon a verdict.</p>

<p>1. Appeal. Bequest to go to the jury.—A request on the part of defendant to go to the jury upon a question of fact is too late, when made after each party had asked the court to direct a verdict in his favor, the court has directed a verdict for plaintiff, and defendant has moved for a new trial and his motion has been denied.</p> <p>2. Same.—A defendant who has asked the court to pass upon a question of fact, which the jury may have properly considered, cannot, upon appeal to the court of appeals, complain of its determination, where it has support in the evidence'.</p>

<p>Appeal from a judgment of the general term of the supreme court, reversing an order overruling a demurrer to the complaint and directing the entry of an interlocutory judgment, and the interlocutory judgment entered upon such order.</p>

The facts out of which this action arose are, that in 1872 Levi P. Wagner recovered in the court of common pleas of Charleston county, state of South Carolina, a judgment against the plaintiff and two other persons for upwards of $4,000, of which judgment the defendant herein was the beneficial owner, although he had not the legal title.

<p>Appeal from the judgment of the court of oyer, and terminer in the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first degree.</p>

<p>Appeal from judgment of the court of general sessions of the peace, in and for the county of New York, entered upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

<p>Appeal from order of the general term of the supreme court, dismissing an order of certiorari to review the proceedings of the Police Commissioners, by which the relator was removed from the force, and affirming said proceedings.</p>

<p>Appeal from a judgment of the general term of the court of common pleas, affirming a judgment in favor of plaintiff entered upon the report of the referee.</p> <p>The action was brought to foreclose a mechanic’s lien.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Master and servant. Negligence.—A master, who furnishes an elevator and equipments of the most approved kind and pattern for the purpose to which it is to be applied, and has it carefully inspected by himself and by the regular inspector who furnished it, is not guilty of negligence, especially where the servant had the same, and even better, means and opportunities for ascertaining the defects than the master.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee.</p>

<p>1. Railroads. Power to acquire land.—A railroad company does not become the owner of the adjacent upland by reason of the construction of its road over land under water in front of such upland.</p> <p>2. Same.—The conveyance to the company gives it no title beyond so much of the land as was needed for its own proper railroad purposes, as against a subsequent grant made by the state, in pursuance of the statute, to the owner of the upland.</p>

<p>1. Manufacturing companies. Annual Report.—Where, though the certificate of incorporation of a manufacturing company provides that the number of trustees to manage the concerns of the company for the first year shall consist of twelve, the number has been reduced by a resolution of the board of trustees, who had power under the by-laws to do so, but which has not been certified to the county clerk and secretary of state, and for the subsequent year the stockholders have elected but nine trustees, six of whom signed the annual report, whiclx was duly filed, such proceedings, concurred in by every one having an interest in the corporation or its affairs, effected a practical reduction of the number of its trustees and constituted the nine thereafter elected a dejure as well as a defacto board, entitled to act for the corporation in transacting its business, until some party whose interests are affected, shall raise the question, in a direct proceeding to question the exercise of such authority; such action cannot, collaterally, be assailed and tried in a proceeding, wherein the question is only incidentally involved.</p> <p>2. Same.—When a board of trustees, in fact authorized by the corporation and having possession of its property and franchises, and undisputed control in the management of its affairs, has filed and published, within the time limited, the report required by the statute, certified by a majority of such board and verified by its president, it has complied with the letter and spirit of the law, and it is not competent, in proceedings against the trustees for a failure to file an annual report, for the creditor to show, with a view of creating a penalty or forfeiture, that some of the acting trustees were not duly elected or, for some reason, were disqualified from acting as such trustees, or to claim, by reason of a non-performance, or an irregularity in the performance, of some duty enjoined upon the stockholders, that an acting board of trustees was not in fact a board authorized to perform the general duties required of them as agents of the corporation.</p> <p>3. Same.—The words “ majority of its trustees,” in § 12, chap. 40 of 1848, do not mean a majority of a constructive, but a majority of an existing, board.</p> <p>See note at end of case.</p>

<p>Appeal from a judgment of the general term of the supreme court, entered upon an order affirming a judgment in favor of defendant, entered upon an order granting a motion at the trial at circuit to dismiss the complaint.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from the judgment of the general term of the supreme court affirming a judgment entered upon a verdict,, and affirming a motion denying a motion for a new trial.</p>

<p>Appeal from a judgment of the general term of the supreme-court, affirming a judgment entered upon a verdict directed by the court, and affirming an order denying a motion for a new trial.</p>

<p>Ttailroads. Elevated.—The general railroad act of 1850, and its amendatory and supplementary acts do not confer upon a company, incorporated under it, a right to build an elevated railroad in the streets of a city.</p>

<p>Deed. Description.—Where fixed monuments are referred to in the description in a deed, which sufficiently locate and determine the premises conveyed, they will control courses and distances.</p>

<p>Appeal. Court of Appeals.—Where the appellant persists in an appeal and insists upon arguing it after all the questions involved have been finally passed upon by the court of appeals nearly three years before, the latter court will award to the respondent, as damages by way of costs for the delay, pursuant to § 3251 of the Code, ten per cent upon the amount of the original judgment.</p>

Cross appeals from judgment of the general term of the supreme court, modifying, and affirming as modified, a judgment entered upon the decision of the court at special term.

<p>Appeal from the judgment of the general term of the supreme court, reversing a judgment of the county court, and affirming a judgment of a justice of the peace.</p>

Motion to change place of trial from Columbia to Albany County. Order affirmed in Court of appeals on opinion of Justice Learned, at special term. The following is such opinion it full: Appeal from an order of the general term of the supreme court, reversing a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the general term of the supreme court.</p> <p>Judgment was affirmed on the opinion of the general term.</p> <p>The following is such opinion.</p>

<p>1. Fraud. Burden of proof.—In an action to recover possession of goods sold and delivered to defendant on the ground that the sale was induced by false and fraudulent representations made by them, the burden is upon the plaintiff to establish that such representations were made with intent to deceive and defraud.</p> <p>2. Appeal. Findings.—Where the finding of a referee depends upon the credibility of witnesses, the facts found by the trial court and approved by the general term are final and conclusive for the purpose of an appeal to the court of appeals.</p>

<p>1. Will. Flection.—In order to deprive a devisee or legatee of property rightfully his own, and raise a case of election under a will, a clear and decisive intention of the testator must be manifested by the will itself to dispose unconditionally of that which did not belong to him.</p> <p>2. Same.—No clear intention to this effect was held to be shown in this will.</p> <p>2. Fxecutor and Administrator. Commissions.—Interested persons, not parties to an agreement for extra compensation to an executor, are not bound thereby.</p> <p>Same.—An executor cannot receive from an estate any greater compensation for his services than the statutory commission, however meritorious or extraordinary his services may be.</p> <p>5. Same.—An executor, who resigns before final execution of trust, is not entitled to commissions upon the corpus of the estate under the provisions of § 2736 of the Code. This section does not apply to such a case.</p>

<p>Appeal from an order of the General Term of the Supreme Court.</p> <p>The order was affirmed on the opinion of Justice Martin at general term.</p> <p>The following is his opinion:</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon an order confirming the report of a referee.</p>

<p>Appeal from a judgment of the general term of the superior court of Buffalo, affirming a judgment entered upon a verdict.</p>

<p>Appeal from an order of the general term of the superior court of the city of New York, reversing a judgment entered, upon the report of a referee and granting a new trial.</p>

<p>1. Evidence. Negligence.—Evidence of repairs to the bridge subsequent to the accident is inadmissible for the purpose of proving negligence on the part of the defendants.</p> <p>2. Same.—Nor is the statement of the commissioner that he made such repairs because he deemed that they were needed, competent.</p>

Action to recover damages sustained by the plaintiff, as he alleged, through the negligence of the defendant. The facts, so far as they are material, appear in the opinion.

<p>1. Evidence. Declarations.—The mere declarations of an assignor of a chose in action, when not a party, made to a stranger, in the absence of the assignee, and forming no part of the res gestae, are, ordinarily, incompetent to prejudice the title of his assignee, whether the latter is one for value or merely a trustee for creditors, and whether they are antecedent or subsequent to the assignment.</p> <p>2. Same.—The exceptions to this rule are, where a conspiracy between the assignor and assignee to defraud is first shown to have existed, or where the assignee holds as a privy by representation, or in such a representative character as between him and the assignor there is a community of interest in the event of the suit, or where the assignor after the assignment'still continues in possession, exercising acts of ownership over the property, thus raising the presumption that the assignment was fraudulent.</p>

<p>Appeal from judgment of the supreme court, general term.</p>

Appeal'from judgment entered upon order of the general term of the court of common pleas of the city of New York, affirming interlocutory and final judgments in favor of the plaintiff.

The action was brought to recover damages for personal injuries suffered by the plaintiff, and alleged to have been occasioned by the negligence of the defendant. In April, 1886, the plaintiff in a wagon drawn by a horse driven by Sebastian Putnam, her father, was going easterly, crossing the defendant’s railroad tracks on State street in the city of Schenectady; the horse became frightened and unmanageable, and the plaintiff was thrown from the wagon and injured.

Action for personal injuries, caused, as alleged, by the negligence of the defendant. On December 31, 1887, the plaintiff was a passenger upon a train operated by the defendant, going north on the main branch of its elevated railroad in Third avenue. At Thirty-fourth street a side track running to the ferry at the foot of that street is connected with the main line by means of a curve.

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming judgment for plaintiff entered upon a verdict at circuit.</p>

<p>1. Evidence. Weight.—The comparative weight of the written correspondence between the parties shortly after the contract was made, and the evidence as to verbal admissions at a later date, as indicating what the contract is, is solely for the jury.</p> <p>2. Tender.—In an action to recover the money which the plaintiff claimed the defendant had agreed to repay upon demand and for which a certificate had been given, it is sufficient to tender such certificate on the trial, in case it is worthless.</p>

<p>Appeal from judgment of the court of oyer and terminer of Livingston county convicting defendant of the crime of murder.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs, entered on verdict of jury.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon report of referee, dismissing complaint.</p>

<p>Appeal from judgment of the supreme court, general term, first department, dismissing appeal from order granting writ of mandamus, requiring defendant to allow an examination of its books.</p>

<p>Appeal from judgment of the supreme court, general term, fifth department, affirming conviction of defendant for selling lottery policies.</p>

<p>1. Evidence. Approval.—Proof of the approval, by defendant’s engineer, of a bill for work done and materials furnished is competent, as showing, not the correctness of the bill, but a compliance with the requirement of defendant, where the latter required the plaintiff to obtain the signature of the engineer thereto, and also for identification.</p> <p>2. Appeal. Evidence.—The erroneous admission of harmless evidence is no-ground for reversal.</p> <p>3. Same.—The decision by a jury of an issue raised upon conflicting evidence is conclusive.</p>

<p>Appeal from a judgment of the general term of the second judicial department, which affirmed a judgment entered upon a verdict.</p>

<p>Appeal from order of the supreme court, general term, first department, affirming orders confirming awards.</p>

<p>Appeal. Withdrawal.—The objections of an attorney, who brought an appeal, hut has ceased to represent the appellant, cannot avail against the appellant’s motion to withdraw the appeal.</p>

<p>Attachment. Vacation.—On an application by a subsequent attaching creditor to set aside a prior attachment, the supreme court does not commit any legal error in refusing to accept as sufficient an affidavit, presented for the purpose of showing that such creditor had acquired an attachment lien, where the affiant did not have personal knowledge of the facts therein stated.</p>

<p>Appeal from a judgment of the supreme court, first department, reversing order vacating warrant of attachment in favor of the plaintiff upon the motion of an alleged subsequent lienor.</p>

<p>Appeal from, judgment of the New York superior court, general term, affirming judgment dismissing complaint.</p>

<p>Motion to dismiss.</p>

<p>Appeal from an award of the board of claims.</p>

This is an appeal from the affirmance of a judgment in favor of plaintiffs entered upon a decision of the court at special term.

<p>Undertaking. Amendment.—The supreme court has power, on the application of a defendant in replevin, to permit an amendment of his undertaking by striking out an admission in its recital, with the consent of the principal and sureties; but the exercise of such power is a matter of discretion with the said court.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendant.</p>

<p>Appeal from judgment of the supreme court, general term, third department, reversing judgment in favor of plaintiff and dismissing the complaint.</p>

<p>Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiffs.</p>

<p>Appeal from order of the supreme court, general term, fifth department, reversing order of special term, vacating order dismissing appeals of defendant.</p>

<p>1. Trial. Mode.—An action for malicious prosecution and to set aside a release of such cause of action as extorted hy threats and under duress, is an equitable one in its nature and properly tried at special term.</p> <p>2. Same.—Proceeding to trial before the court, without objection, waives right to jury trial.</p>

<p>Appeal from a judgment of the supreme court, general term, second department, affirming judgment of. foreclosure and sale.</p>

<p>Appeal from a judgment of the general term of the superior court of the city of Buffalo, rendered in favor of tlie plaintiff for $1,238.10- damages and costs, and overruling exceptions taken on the trial and ordered heard at the general term in the first instance.</p>

<p>Appeal from a judgment of the supreme court, general term, second department, reversing the judgment dismissing the complaint, giving plaintiff judgment for four and a half shares of stock, and affirming judgment against defendant’s counterclaim.</p>

<p>1. Negligence. Master and servant.—A railroad company is bound to guard its employees against the negligence of co-employees so far as it can, by the enactment and promulgation of reasonable rules in the management of its business.</p> <p>2. Same.—In the absence of a rule prohibiting others than repairmen from removing flag from cars on a repair track, the company’s negligence in not making regulations for this purpose is a question for the jury.</p> <p>3. Same.—Unless the negligence of the company in omitting to enact and promulgate proper rules co-operated with that of the co-employe, the company is not responsible.</p> <p>4. Trial. Charge.—The charge as to rules of other companies was held to be proper, when taken in connection with the remainder of the charge.</p>

<p>Appeal from judgment of the New York superior court, general term, affirming a judgment in favor of plaintiffs entered on verdict ordered by the court.</p>

<p>Assignment for creditors. Proof of claim.—An undisputed firm claim against the assigning partner should not he disallowed, because it is not shown how much should he deductedtherefrom by way of credits.</p>

Appeal by the defendants from a judgment of the general term of the superior court of the city of New York, affirming a judgment for the plaintiffs, entered upon a decision after a trial of the issues at special term.

.This was an action for an accounting, between former co-partners, after a voluntary dissolution of the firm. The articles of co-partnership provided, among other things, that, “ for the purpose of carrying on the business of wholesale coal dealers,” the plaintiff and defendant should be co-partners from January 13, 1885, until January 12,1888, and that on or before May 1,1885, each partner should contribute as capital the sum of $10,000.

<p>1. Evidence. Declarations.—A party cannot support his own testimony as to injury, in an action for negligence, by proof of his own declarations to the same effect made to persons other than a professionally attending physician, unless they form part of the res gestee.</p> <p>2. Same. Bes gestee.—Such declarations do not form part of the res gestee, if they are so far detached from the occurrence as to admit of deliberate design and be the result of calculating policy.</p>

<p>Appeal from a final judgment of the general term, superior court of the city of New York, entered on an interlocutory judgment, which reversed an interlocutory judgment of the special term of said court, sustaining plaintiff’s demurrer to one of the defenses set forth in the answer.</p>

<p>Appeal from judgment of the New York common pleas, general term, affirming judgment for plaintiff entered on referee’s report.</p>

<p>Trial. Charge.—A correction of an error in a charge, to effect a cure, must he frankly and clearly made hy the court, and not left to he argued out of another proposition dealing with a different, question.</p>

<p>Appeal. Mew trial.—Where the record contains no exceptions, the denial of a motion for a new trial is not subject to review in the court of appeals.</p>

<p>Motion to amend remittitur.</p>

<p>Surrogate’s Court. Jurisdiction.—The surrogate has no jurisdition to entertain a proceeding for the sole purpose of permitting an executor or administrator to prove his claim against his decedent’s estate.</p>

The recovery had in this action was for personal injuries sustained by the plaintiff, an employee of the defendant, on the 17th of October, 1887, while he was engaged in coupling cars. The cars which* he was attempting to couple he described as a jimmy and a chronic car. The jimmy was a ■ four-wheeled coal car, considerably lower than the eight-wheeled car which he called a chronic car.

<p>Negligence. Municipal corporation.—Where one of two concurring causes, which produce the injury, is a culpable defect in the street, the municipality incurs no liability unless it appears that the injury would not have been sustained but for such defect.</p>

<p>JEstoppel. Assignment.—A claimant who has sworn, in an action by the assignee against the debtor, that he made the assignment in good faith and absolutely, is estopped from subsequently denying that said claim was the absolute property of his assignee as against an assignee of the-latter.</p>

<p>Evidence. Compromise.—A letter, containing, not an admission of a fact, but an offer of compromise made for the purpose of procuring a settlement of a pending controversy, is incompetent in an action upon such disputed claim.</p>

<p>Negligence. Contributory.—Plaintiff was held, from his own testimony, to have been guilty of inexcusable contributory negligence in this case.</p>

<p>Appeal from judgment of the New York superior court, general term, reversing judgment for plaintiff, and directing that the complaint be dismissed.</p>

<p>1. Evidence. Section 834.—The prohibition of section 834 of the code applies only to information the physician acquires in attending the patient, in a professional capacity, and not to information obtained by him in. any other way.</p> <p>2. Same.—His testimony is competent, if confined to such knowledge or information as he had obtained of the party by seeing her when she was. not his patient.</p>

<p>1. Negligence. Railroads.—The failure of a company to ballast a side track used for stowing cars and making up trains is not a breach of any duty it owes its employes.</p> <p>2. Same.—The facts in this case were held to constitute no negligence on the part of the company and contributory negligence on the part of its employe.</p>

<p>Appeal from judgment of the supreme court, general term, first department, affirming judgment recovered on the verdict of a jury.</p>

<p>1. Appeal. Referee.—Where the evidence in hehalf of the respective parties-upon a point is irreconcilable, the referee’s decision on the fact is final in the court of appeals.</p> <p>2. Evidence. Partnership.—A copartnership in respect to certain matters-does not authorize one partner to make contracts for his copartner’s services in other matters.</p>

<p>1. Taxes. Exemption.—An electric light company was, prior to enactment of chap. 353 of 1889, exempt from the payment of taxes to the state.</p> <p>2. Same.—The fact that such corporation was not organized under the ■ General Manufacturing Act did not affect its character as a manufacturing corporation. .</p>

<p>^Evidence. Comparison.—Under the provisions of chap. 36 of 1886, as amended by chap. 555 of 1888, a party to an action against whom a claim is made, founded upon an instrument alleged to have been executed by him, which he disputes, has a right to introduce in evidence other writings, satisfactorily proved to have been executed by him, for the purpose of comparison.</p>

<p>Deed. Reservation.—A reservation in a deed of an alley-way to be kept open for the passage of specified conveyances to certain lots retained by grantor, is no restriction upon the right of the grantees to use the land above or below the surface of the way as they may choose, provided only that such use is not inconsistent with the way reserved to the grantor.</p>

<p>Appeal from a judgment of the general term of the superior court of Buffalo, entered on a verdict which was reviewed at the general term in the first instance.</p>

<p>Appeal from a judgment of the general term of the court of common pleas of the city and county .of New York affirming a judgment entered upon a decision after a trial at special term.</p>

<p>Appeal from a judgment of the general term of the second judicial department, affirming a judgment entered upon a verdict directed at the circuit.</p>

<p>1. Appeal. Fxceptions.—A finding of fact by a referee, which is wholly unsupported by the evidence, must be duly excepted to, in order to present a question of law for the consideration of the court of appeals.</p> <p>2. Same.—An exception in terms to the referee’s conclusion of law is unavailing, where such conclusion is required by the findings of fact on which it is based.</p> <p>3. Same.—An exception to the refusal of the referee to find each of the several conclusions of law submitted so far as the referee’s conclusions are not in conformity therewith, is not sufficiently definite and specific to present a question for review.</p> <p>4. Fvidence. Parol.—Parol evidence is competent to characterize a collateral writing, which was used and accomplished its purpose long before, and was originally of a temporary nature.</p>