THIS action was brought to recover damages for injuries sustained by a collision between plaintiff's canal-boat and a barge in tow of a tug belonging to defendant, through the alleged negligence of defendant's servants. Plaintiff's boat was fastened to a pier in the city of New York; he was on another boat adjoining his when he saw the tug and tow approaching. Apprehending there might be a collision, he ran upon his own boat; the barge struck the bow of his boat, and a piece of timber, torn off by the collision, struck him and broke his leg. The evidence as to the negli gence of the persons in charge of the tug the court held to be sufficient to sustain the verdict. It was claimed, on the part of defendant, that there was contributory negligence; this was based upon the fact of plaintiff's going upon his boat when he apprehended a collision, and thus putting himself in the way of danger. Held, untenable; that when plaintiff saw his boat in danger it was his duty, as well as his right, to use reasonable exertion to save her; that he could not stand still and omit such care as he could reasonably and prudently take and thus suffer his boat to be injured and cast the loss upon defendant; that it was for the jury to determine whether the act of plaintiff was a prudent and proper one. The court say there is nothing in Eckert v. L. I. R. R. Co. (43 N. Y., 502) in conflict with these views. The trial court fully stated the law applicable to the case, charging, among other things, as follows: "A man contributes to an injury himself when the injury is one which a prudent man might well anticipate as resulting from the circumstances to which he exposed himself. No speculation should be entered into as to whether it might result in the breaking of a finger or the smashing of his leg. When any. thing of that character is anticipated, he is guilty of contributory negligence if he exposes himself in such a way as a careful and prudent man would not." Defendant's counsel requested the court to charge, that "if plaintiff knowingly and voluntarily placed himself in a position where he was liable to receive the injury in question, he was negligent and cannot recover for the injury to himself." The court refused so to charge. Held, no error; that the charge made fairly covered that requested; also, that the request might have been properly refused under the principle stated in head note. The court was also requested and refused to charge that the fact that plaintiff "did receive the injury in question where he was is proof that he was liable to receive it there." Held, no error; that it was a matter of fact, as to which the court was not bound to charge; also that the question for the jury was whether, before the accident happened, plaintiff acted prudently, which was not controlled by what occurred at the time of the accident. Robert D. Benedict for appellant. W. W. Goodrich for respondent. EARL, J., reads for affirmance. All concur, except ALLEN and RAPALLO, JJ., absent. GEORGE M. OLCOTT, Assignee, etc., Respondent, v. JOHN GEORGE MACLEAN et al., Appellants. (Argued March 26, 1878; decided April 2, 1878.) REPORTED below, 11 Hun, 394. IN THE MATTER OF THE PETITION OF SETH CHAPMAN TO VACATE AN ASSIGNMENT. (Argued March 26, 1878; decided April 2, 1878.) Edward B. Merrill for appellant. Wm. C. De Witt for respondent. Agree to affirm order. No opinion. THE PEOPLE ex rel. GEORGE M. THOMPSON, Respondent, V. THE BOARD OF SUPERVISORS OF HAMILTON COUNTY, Appellant. The power given to the comptroller by the act of 1855 (§ 62, chap. 427, Laws of 1855), in case two newspapers were not published in a county, to cause notices for the redemption of lands sold for taxes to be published "in the two newspapers which the comptroller shall believe to be most generally circulated in such county," was superseded as far as the county of Hamilton is concerned by the act of 1866 (chap. 690, Laws of 1866), providing for the publication of legal notices in said county. That act left the comptroller no power in any case to designate the paper unless both of the papers named in the act should refuse to publish, in which case he could cause it to be published in any newspaper in Fulton county; unless both the designated papers were willing to publish, a publication in one was sufficient. The power of the comptroller was not restored by the act of 1870 (chap. 662, Laws of 1870), repealing the Law of 1866 and giving to the board of supervisors the power to designate a "newspaper or newspapers" in which shall be published the session laws, "and all legal notices and advertisements required by the laws of this State or any local or special laws" to be published in said county; this act gives the board authority to determine whether there should be one or more papers, and if they determine that there should be but one, all legal notices were required to be and are sufficiently published in that one. Accordingly held, where the board of supervisors of said county, there being no newspaper published therein, designated a paper in Fulton county, that that was the only paper in which the comptroller's notices were required to be published; and where the comptroller designated another paper which published the notice, that the designation was unauthorized and the expense thereof not a proper county charge. People ex rel. v. Board of Supervisors (9 Hun, 60), reversed. (Argued March 28, 1878; decided April 9, 1878.) THIS was an appeal from an order of General Term granting a peremptory mandamus requiring defendant to re-convene and audit and allow plaintiff's account. (Reported below, 9 Hun, 60.) In 1873 the relator was the publisher of the Hamilton County Journal a newspaper published in Fulton county. The State comptroller selected such paper to publish the notice for the redemption of lands in Hamilton county sold for taxes, and at his request such notice was published therein. The relator presented his bill therefor to defendant for audit, but it was disallowed. At the annual meeting of defendant in 1872 it designated the Hamilton County Democrat, a newspaper published in Fulton county, as the paper in which the session laws, and all legal notices and advertisements required to be published in the county of Hamilton, should be made for the year 1873. The relator requested defendant to designate his paper also, but this it refused to do. There was no newspaper published in the county of Hamilton. The action of the comptroller was based upon the provisions of the act (chap. 427, Laws of 1855, §§ 61, 62) requir ing him to cause such notice to be prepared for each county and to be published in the newspapers designated by the board of supervisors to publish the session laws; and, in case no newspapers had been designated, to publish in two newspapers in the county to be selected by him, and if there were not two newspapers published in the county then in the two newspapers which the comptroller shall believe to be most generally circulated in such county." Held, as above stated. J. M. Carroll for appellant. R. H. Rosa for respondent. EARL, J. reads for reversal of order of General Term and for affirmance of order of Special Term. All concur, except RAPALLO and MILLER, JJ., absent. ANN T. WALLACE, Appellant, v. JACOB VREELAND et al., (Argued March 29, 1878; decided April 9, 1878.) J. M. Cooper for appellant. A. Schoonmaker, Jr., for respondents. AGREE to affirm. No opinion. All concur, except RAPALLO, J., absent. JOHN A. CLUSSMAN, Respondent, v. THE LONG ISLAND (Argued March 29, 1878; decided April 9, 1878.) REPORTED below, 9 Hun, 618. Robt. S. Green for appellant. Theodore E. Tomlinson for respondent. Agree to affirm. No opinion. All concur, except RAPALLO, J., absent. |