ISAAC D. SLEIGHT, Respondent, v. THE CITY OF KINGSTON, Appellant. (Argued March 19, 1878; decided March 26, 1878.) REPORTED below, 11 Hun, 594. M. Schoonmaker for motion. S. L. Stebbins opposed. Agree to grant motion to dismiss appeal. All concur. No opinion. Appeal dismissed. EBERHARD FABER, Respondent, v. SAMUEL D. HOVEY et al., Appellants. (Argued February 13, 1878; decided March 26, 1878.) Ambrose Monell for appellants. John S. Washburn for respondent. ALLEN, RAPALLO, ANDREWS and EARL, JJ., agree to affirm without opinion. MILLER, J., reads for reversal and new trial, unless plaintiff stipulates to reduce damages to nominal damages. CHURCH, Ch. J., concurs on ground that a case was not made out for damages. FOLGER, J., concurs on ground that the basis for damages was erroneous. Judgment affirmed. FIRST NATIONAL BANK OF CHITTENANGO, Respondent, v. A promissory note made by one of two members of a firm in the firm name Getty v. Binsse (49 N. Y., 385), and Risley v. Brown (67 id., 160), distin- Where after the death of one member of a firm the holder of a note of the firm, without knowledge of the death, received a new note signed in the firm name in renewal of such note and delivered up the same, held. that the new note having been taken through a mistake of fact was not a payment of the old note. Also, held, that the bringing of an action upon the last note against the surviving partner and recovery of judgment thereon, in the absence of proof of knowledge on the part of plaintiff at the time of bringing the action, that the deceased partner died before the giving of the note, was not a ratification of the transaction as a release of the estate of the deceased. There is no rule of law fixing the time within which one may discover that a writing does not express the contract which he supposes it does, or which bars him of relief for delay other than that contained in the statute of limitations. (Argued March 18, 1878; decided March 26, 1878.) THIS action was brought to collect a debt, evidenced by a note for $2,500, dated September 8, 1869, made in the firm name of "Wm. Petrie & Co.," to the order of "Bennett & Avery," and indorsed by the latter. (Reported below, 6 Hun, 346.) The firm of "Wm. Petrie & Co." was composed of William Petrie and Samuel Morgan, the latter being the defendant's intestate. The partnership terminated by the SICKELS.-VOL. XVIII 75 73 593 120 306 death of Morgan on the 10th of October, 1869. The note in suit was the last but one of a series of notes commencing November 21, 1868, all in form and as to parties, alike, and made by Petrie without consideration, for the benefit of the payees, and without the knowledge or consent of his partner Morgan. These notes had been discounted before maturity in due course of business, or following the first one, had each been accepted in renewal, of the last preceding one, by the plaintiff without notice of the fact, so far as appears, that they were accommodation notes, or of any fact invalidating them or either of them as against any of the parties thereto. Prior to the maturity of the note in suit Morgan died. Plaintiff, in ignorance of that fact, received another note in renewal. After the maturity of the last note plaintiff brought an action thereon against the indorsers and against Petrie as survivor, and judgment was obtained therein. Held, that it appearing that plaintiff took the note bona fide and for a valuable consideration, the fact that the intestate did not consent to or know of the making of the note did not relieve his estate from liability. (F. and M. Bank v. B. and D. Bank, 16 N. Y., 125, 135 and cases cited.) That the note, in the form and under the circumstances in which it was offered and discounted by plaintiff, was presumptive evidence that it was a valid business note expressive of a debt due from the makers to the payees. (Whitaker v. Brown, 16 Wend., 505.) That the acceptance of the last note and the bringing an action thereon was not a payment of the note in suit or a ratification of it as a release of the estate of the deceased partner, as it was received through a mistake in fact, and, so far as appeared, the subsequent proceedings to collect were still under the same mistake as to the time of the death; nor was the recovery of judgment a satisfaction of the right to enforce the claim against the intestate's estate. (Davis v. Anable, 2 Hill, 339.) That the plaintiff was not chargeable with laches in not making demand of the estate of the deceased. The court stating the rule as to laches, in such case as above, citing Bidwell v. Astor Insurance Company (16 N. Y., 263), and that the rule absolving the estate of a joint surety upon his death did not apply, but that the co-partners were, as to plaintiff, liable as principals, and it appearing that Petrie, the surviving partner was insolvent the action was maintainable against the representatives of the deceased partner. (Pope v. Cole, 55 N. Y., 124.) The court distinguished the case from that of Getty v. Binsse (49 N. Y., 385) and Risley v. Brown (67 id., 160), in that plaintiff had no knowledge of the actual relations of the parties to the note. William Kernan for appellant. William. C Ruger for respondent. FOLGER, J., reads for affirmance. All concur. Order affirmed and judgment absolute against defendant. 73 595 108 636 73 73 595 LESLEY E. WESTON, Respondent, v. THE NEW YORK 11595 ELEVATED RAILROAD COMPANY, Appellant. It is the duty of a railroad corporation to remove snow and ice from a platform over which it is necessary for passengers to pass in order to reach its cars; or to take precautions by covering it with ashes or other substance, to protect passengers passing over it from danger to which otherwise they would be exposed. This duty is not performed simply by appointing servants, whose duty it is to keep the platform in a safe condition; nor is it any excuse that they neglected their duty. A passenger has the right to assume that the corporation has performed its duty, and that the platform is safe. His going upon it in order to reach the cars is not, therefore, of itself, contributory negligence. (Argued March 18, 1878; decided March 26, 1878.) 112 452 73 595 118 318 THIS was an action to recover damages for injuries sustained by falling upon an uncovered platform between a waitingroom, on defendant's road, and its cars, over which it was necessary for passengers to pass to reach the cars; which platform plaintiff alleged defendant had negligently suffered to become covered with snow and ice, rendering passage over it insecure and dangerous. Plaintiff's evidence tended to show that during the day, and before the accident in question happened, it had snowed, and the snow had been but partially removed from the platform; the surface was lumpy and uneven, and ice had formed upon it, rendering the footing unsafe and dangerous. Plaintiff, with other persons, when the cars reached the station, passed out of the waiting-room on to the platform to reach the cars, when he found the platform icy and slippery. According to his testimony he proceeded with caution, but was unable to keep his footing, slipped and fell, receiving the injury complained of. The evidence showed that other persons at the same time also slipped. Defendant's counsel moved for a nonsuit, which was denied, and said counsel excepted. The court charged "that the defendant was bound to be on the alert during cold weather, and to see whether there was ice upon the platform, and to remove or make it safe by sanding it or putting ashes upon it, or in some other manner." This was excepted to. The court had charged "that the defendant was not bound to keep its platform in such a condition that it would have been impossible for any passenger to slip, but in such a condition that a person using ordinary care, which people use when not apprised of danger, would not slip." Held, that the rule stated by the court, as applied to the case, was proper, and not too stringent; and that the evidence justified the submission to the jury of the questions of negligence and contributory negligence; that the condition of the platform was at all times within the notice of defendant and its servants, and there was no difficulty in making it safe. Defendant's counsel requested the court to charge, among other things, "that if defendant did what ordinary care and prudence require of any individual over whose premises the public are permitted to go, it is not liable." The court refused so to charge. Held, no error; that the degree of |