Volume 64 — New York State Reporter

<p>Elections—Certificate of nomination.</p> <p>Under § 57, chap. 680 of 1892, the voters must sign both the oath and the certificate.</p>

<p>Trust—Creation.</p> <p>The fact that a deposit in bank was made in trust for another is not conclusive as to the creation of a trust, but the surrounding circumstances may be shown as bearing upon the intent.</p>

<p>1. Service and Proof—Publication.</p> <p>Publication in the “ Buffalo Daily Transcript ” is not such a variance from the terms of an order for publication in the “ Daily Transcript ” as to invalidate such publication, where there is no other paper published in the city of Buffalo .at such time bearing a similar name.</p> <p>2. Same—Affidavit.</p> <p>The affidavit is sufficient, though it describes the affiant as manager, and not as printer and publisher, or his foreman or principal clerk.</p> <p>3. Same—Time to Answer.</p> <p>The time for the defendant to answer does not begin to run until the expiration of six full weeks from the day of the first publication.</p> <p>4. Same—Jurisdiction.</p> <p>An omission to publish once a week for six successive weeks is a jurisdictional defect.</p>

<p>Appeal by plaintiff from judgment entered on direction of trial judge dismissing complaint.</p>

<p>Appeal by defendant from judgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.</p>

<p>1. Corporation—Trustees—Liability.</p> <p>Where the annual report is filed before the claim against the company accrues, though after the statutory time, no liability on the part of a trustee is established.</p> <p>2. Same.</p> <p>The fact that such report is false, does not affect the defense.</p> <p>3. Same—When claim accrues.</p> <p>Where the company is an indorser on a note, the claim does not accrue within the statute, until the proper steps have been taken to fix its liability.</p> <p>4. Same—When duty to pibe ceases.</p> <p>After the corporation has abandoned its business and franchises, or has passed into the hands of a receiver, there is no duty imposed upon the trustees to file any report.</p> <p>5. Same—False report.</p> <p>No liability attaches against officers of a corporation for a false report, unless it appears that the report was filed before the credit was given.</p>

<p>1. Negligence—Contributory.</p> <p>A party cannot be held guilty of contributory negligence per se, where the injury results exclusively from the carelessness of another person</p> <p>3. Same—Question oe eact.</p> <p>Where the question of negligence is connected with a disputed state of facts, or facts from which, if not disputed, different minds may honestly draw different conclusions, the whole matter must be left to the jury.</p> <p>3. Master and Servants—Fellow.</p> <p>Employes are not fellow-servants unless they are all under the control and direction of a common master.</p> <p>4. Damages—Personal injuries.</p> <p>The fact that the deceased at the time of his death was thirty-nine years of age, in sound health, sober and industrious, earning on an average fifteen dollars per week, and his wife was seven years younger, is sufficient to warrant the jury in awarding the full statutory amount of damages.</p>

<p>1. Deposition—Examination before trial.</p> <p>Where the attorney for a non-resident defendant agrees to, and does» by his authority, accept personal service for him of the papers for examination before trial, upon a condition which is assented to, jurisdiction over the defendant in the proceeding is acquired.</p> <p>2. Same.</p> <p>Where a party has complied with all the requirements of the Code, he becomes entitled to the examination of the adverse party, and cannot be deprived of it, even on affidavits on the part of the latter that he can give no information.</p>

<p>Appeal—Court of appeals.</p> <p>The trial term cannot, on an appeal to the court of appeals from the general term, amend the case used before the latter court, without its consent.</p>

<p>Carrier—Failure to deliver goods.</p> <p>The carrier was held, under the evidence, to have delivered the machine in accordance with the directions given him.</p>