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mond county to record certain papers; for the build- Rule 7th of our Court of Appeals has been changed ing of a canal bridge upon Genesee street in Utica; in so as to read as follows: Any person who has been relation to One Hundred and Eleventh street in the admitted, and has practiced three years as an attorney city of New York; for the relief of Bridget Gray; and counsellor in the highest court of law in another relative to the Public Exchange in the city of New State, may be admitted and licensed without examinaYork; amending act creating separate road district in tion. And the General Term of the Supreme Court the town of Middletown, Richmond county; in rela- may, in its discretion, so admit and license any person tion to companies insuring steam boilers; to incorpo- who has thus practiced in another country. But he rate Excelsior Hose Company in Warwick; for the must possess the other qualifications required by these protection of fish in Monroe county; amending the rules, and must produce a letter of recommendation general law relative to fire insurance; repealing act from one of the judges of the highest court of law of relating to the pay of certain town officers in Sullivan such other State, or furnish other satisfactory evidence county; for the relief of Mary A. Van de Water; to of character and qualifications." incorporate the Bachelor Club of the city of New York; for the relief of James E. McVeany; relative
The July number of the Criminal Law Magazine to certain claims in abating nuisances in Buffalo; contains the following leading articles: The plea of establishing the compensation of the county judge of insanity as an answer to an indictment, by John OrRockland county; legalizing the official acts of Daniel dronaux, and Interposing the statute of limitations by P. Cornell as notary public; rebuilding Fulton Market demurrer, by Franklin Fisk Heard. Also a note upon in the city of New York; to incorporate the Grand
State v. Redemier, as to burden of proof of insanity; Council of the Royal Arcanum; relative to the organ
five other important cases in full, digests, and other ization and regulation of certain business corporations; interesting matter. The Magazine is an editorial sucto legalize the acts of Franklin C. Whitney as a notary
In Kansus Central Railway Co. V. Allen, 22 public; relating to Independence river; legalizing the
Kans. 285, an action brought for injuries sustained by acts of Samuel Williams, a justice of the peace;
a boy while disporting on a railway turntable, the amending the game law; preventing the sale of adulter
court thus describe the restless small boy: “Everyated vinegar; relative to telegraph companies; in rela- body knows that by nature and by instinct boys love tion to the harbor and port of New York; amending
to ride, and love to move by other means than their general law relating to public instruction; relative to own locomotion. They will cling to the hiud ends of apple barrels; for the enlargement of a canal bridge moving wagons, ride upon swings and swinging gates, at Fultonville; relative to the estate of George Bright, slide upon cellar doors and the rails of stair-cases, pull deceased; to incorporate the order Germania; to make sleds up hill in order to ride down upon them on the effectual judicial decrees against unknown owners; snow, and even pay to ride upon imitation horses and relative to criminals and commutation of their sen- imitation chariots swung around in a circle by means tences; authorizing trustees of religious corporations of steam or horse power. This last is very much like to appoint constables; relative to the superintendent riding around in a circle upon a turn-table. Now, of the poor of Westchester county; for the better everybody, knowing the nature and the instincts comsecurity of the bonds of public officers; for the relief mon to all boys, must act accordingly. No person has of the sureties of trustees, committees and guardians; a right to leave, even on his own land, dangerous amending the game law; relative to the superintendent machinery calculated to attract and entice boys to it, of the poor of Columbia county; relative to making there to be injured, unless he first takes proper steps good deficits in capital of banking institutions; repeal- to guard against all danger; and any person who thus ing act relating to draining certain lowlands in Orange does leave dangerous machinery exposed, without first county; relating to the printing of the Code of Crimi- providing against all danger, is guilty of negligence." nal Procedure; to encourage the improvement of steam propulsion on the Champlain canal; for the relief of The New Jersey Law Journal gives the following Babette Stemmler; for the relief of George W. Mor
midsummer Law in Verse, reporting the case of Kuhn ton; requiring banks and banking associations to V. Jewett: redeem and retire their circulating notes; relating to the title to personal property; to exempt Sullivan
The shades of night were falling fast,
As o'er the Erie railroad passed county in reference to the appointment of poor-house
A locomotive, laden down keepers; relating to the election of certain school offi
With crude petroleum near the town cers in certain school districts; relative to the incorpo
Of Paterson. ration of villages; of distraining cattle and other
A piercing shriek, a blinding flash, chattels; to transfer the duties of the bonding com
And then an instantaneous crashmissioners of Poughkeepsie; relating to rural ceme
Two trains collided down the banks tery associations; to incorporate the “Empire Yacht
The oil was emptied from the tanks Club;" for the relief of Isaac Piser; to incorporate
Immediately. the Grand Lodge Knights of Honor; relating to the
The oil igniting, sparkling, flowed M. E. Church Home in the city of New York; for the
Down the embankment, across the road, election of a messenger for the common council of
Into a bubbling brook that pours
Its waters on the fertile shores Brooklyn; relating to macadamizing the highways in
of the Passaic. the village of Piermont; relating to the protection of
The barn of the complainant stood female employees in the cities of New York and
Beside this unheroic flood, Brooklyn; relating to arrears of rents and charges for
And thus the floating flames of fire Croton water in the city of New York; relating to
Consumed it and produced a dire marshals in the city of New York; to abolish the office
Calamity. of railroad commissioner in any town; relating to the
His honor, the Vice-Chancellor says laying out of public roads; in relation to the State
That if a devastating blaze Board of Audit, and to define its powers; amending
Is negligently started, still an act to provide for the incorporation of bridge com
The defendant is responsible
In damages, panies; to legalize certain proceedings of the common
If no obstructions intervene, council of New York city; amending the charter of
As a new agency, between the city of Yonkers; the Code of Criminal Procedure;
The cause and its effect as here; repealing certain acts and parts of acts relating to the
This rule is singularly clear city of New York.
The Albany Law Journal.
Wood in criminal relations with the prisoner's wife.
testimony, against objection, in which, we believe, ALBANY, JULY 31, 1880.
she denies any criminality. By chapter 182 of Laws
of 1876, it was provided that “in all criminal CURRENT TOPICS.
trials, and examinations before trial, a husband or
be examined as a witness on behalf of the N connection with our article on "what consti- other, but upon no such trial or examination shall tutes a majority of electors," our attention is
a husband or wife be compelled to testify against called to People ex rel. Furmon v. Clute, 50 N. Y.
the other." There is no doubt that previous to this 461, and it is said this “ seems to show that the law
statute the wife would have been wholly incompein New York is at variance with the conclusions of tent as a witness. In fact, this was so held in the article." We cannot see that that case is in the
Wilke v. People, 53 N. Y. 525. Under the present slightest degree in point. This case turned on the statute she cannot be competent against the husband point of votes cast for a disqualified candidate, and
unless inferentially, by the omission to enact that it was held that if a majority of the electors vote she shall not testify against him if she desires so to
do. for a disqualified candidate, through ignorance of
On this point Mr. Moak argued as follows: law or fact, the next highest candidate is not
“Before this section the wife was not a competent elected, but the election is a failure. It is true that witness against, or for, her husband. It required the court say, that those voters who “are absent an affirmative provision, making her competent on from the polls, in theory and practical result are
either side, to make her so. This section affirmaassumed to assent to the action of those who go to
tively declares she shall be for her husband, and the polls; and those who go to the polls and do not
then proceeds negatively to say she shall not be vote for any candidate for an office are bound by compelled to testify against him. There is no the result of the action of those who do; and those
affirmative declaration that she may. A mere negawho go to the polls and vote for an office, if for tive provision that she shall not be compelled to be, any valid reason their votes are as if no votes, they certainly is not an affirmative provision that she also are bound by the result of the action of those may be. When the act of 1876 was passed, no one whose votes are valid and of effect.” But this does
would have claimed, that under any circumstances, not reach the subject of our discussion, which is she was competent against her husband. If not this: If at the same election A is running for one
competent she could not be allowed to be sworn office and B for another, and A has a majority of against him. Suppose the Legislature had simply the votes cast for his office, but not of the votes
passed an act in the words of the last part of the cast for both offices, is A elected?
section, “upon no such trial or examination (crim
inal trials and examinations before trial) shall a husWe have received and read the arguments of
band or wife be compelled to testify against the Messrs. Harris, Hill and Miller, in favor of the valid
other," would it have been any thing more than a ity of the Indiana coustitutional amendments. They
declaration of part of the law, as it then existed, are able arguments; but we do not agree to the
that a husband or wife should not be compelled to statement that “the Supreme Court of the United | testify against the other? It would have removed States has settled the question already," as that
no existing incompetency. It would have given or decision was in the case of a special election. We
conferred no competency.” “ It would be a novel have also read the dissenting opinions of Niblack proposition that the competency of a witness, as a and Scott, JJ. They are able productions. We
witness against another party, should depend upon have also read many columns of abuse in the Indi
the willingness of the witness to testify without the ana newspapers (of one political party) of the slightest power on the part of either party, of the majority of the court. These are not able produc
court or of the law, to interfere or to have a word tions. We can consent, on satisfactory evidence,
to say on the subject. I have never heard, and I to believe that judges have gone wrong in a given
venture the assertion your honor never has, of a case, but we cannot consent to believe, on no evi
wife or husband being called against the other.” dence at all, that they have made knaves as well as
We are inclined to agree with Mr. Moak, and to fools of themselves for political ends. In this case,
believe that it requires an affirmative statutory if the majority of the court have erred, as we are
declaration to qualify a wife to testify against her inclined to believe they have, they have the courts
husband, even if she is willing, just as much as to of Illinois, Minnesota and Missouri on their side, qualify her to testify in his favor. and Mr. Justice Bradley. We await the appearance of the majority opinion with curiosity.
The question, “ can an assignee for creditors set
aside his assignor's fraudulent assignment?” (see An interesting question of the competency of a ante, 60), was recently answered in the negative, in wife, to testify against her husband in a criminal Pillsbury v. Kingon, 31 N. J. Eq. 619. An appeal proceeding, has arisen in the case of Briggs, under has been taken to the ultimate court. This decision arrest for the homicide of Wood. It will be re- does not involve any statute like ours of 1858, but membered that the prisoner claims to have detected the court, citing Burrill on Assignments, remark
VOL. 22.- No. 5.
that our statute “expressly invested assignees with
NOTES OF CASES. this power.” The opinion shows that there has been a good deal of diversity on the general ques- N State v. Hoyt, 46 Conn. 330, it was held that tion. Lord Justice Bramwell has written a strong letter
to the jury by the counsel for the accused, on the condemning the bill pending in Parliament propos- question of his insanity. The court said: 6 The ing to make masters liable to servants for injuries plea of insanity interposed in behalf of persons inby fellow-servants in the course of the same employ- dicted is supported by the testimony of persons who ment. We have several times expressed ourselves by study of books and men have entitled themagainst this. See 17 Alb. L. J. 358; 19 id. 505. selves to speak as experts in that science. By way Lord Bramwell says: “I have shown that
of vindication of their right to be heard as instructit is not a natural right that the master should be ors of the jury, they usually preface their testimony liable, nor any thing that exists in the nature of by a statement of the extent of their experience in things. That it is reasonable a railway company
the treatment of persons afflicted with disease of should be liable to a passenger for the negligence of the mind and the time given to the reading of treaits servants, because it has so contracted; and that tises upon insanity written by men of wide experiit should not be to one of its own servants, because ence and acknowledged ability in the treatment of it has not so contracted. We are to start afresh, such diseases; their opinion is the result of observathen, and make a new rule. Why? Why if I have tion of men and reading of books. And in this two servants, A. and B., and A. injures B. and B. jurisdiction for a long series of years counsel have injures A. by negligence, should I be liable to both been permitted to read to the jury, as a part of their when, if each had injured himself, I should not be argument upon this part of their case, extracts from to either ? There can be but one reason for it such treatises as by the testimony of experts have viz.: that, on the whole, looking at the interest of been accepted by the profession as authority upon the public, the master, and the servants, it would that subject; such treatises as have helped to form be a better state of things than exists at present. the opinion expressed by the expert. The practice Is that so ?” This he answers in the negative. As by repetition has hardened into a rule; a rule, upon the servant may now contract that the master shall the continued existence of which counsel for the be liable, so under the new law he might contract accused in the case before us had a right to rely; that he should not be liable, and for say sixpence a
the abrogation of which by the ruling complained day difference of wages, he would so contract. “The of may have been a surprise. The question is not, great employers of labor will understand the change shall such reading be now for the first time perin the law and guard against it. The mischief and mitted;" it is, shall it now for the first time be forwrong will be in the case of men, who, not knowing bidden without notice. We think that privileges of the change, will go on paying the wages
which hitherto granted to persons in like circumstances include the compensation for risk, the premium of with the accused should not be denied to him, to insurance, and yet find they have to pay compensa
his possible prejudice." Three judges concurred tion when the risk happens, and that they are in- in this opinion, but two others dissented in a caresurers though they have not received the premium.” ful opinion. The dissent is authorized by CommonHis lordship concludes that change would do the wealth v. Wilson, 1 Gray, 338; Asworth v. Kittridge, workman no good except in this last class of cases. 12 Cush. 193; Commonwealth v. Sturtevant, 117 Mass. Admitting that it might make the master more care- S. C., 19 Am. Rep. 401; Collier v. Simpson, ful in selecting servants, he denies that this is a suf- 5 C. & P. 73; Orduay v. Haynes, 50 N. H. 159; ficient consideration for the enormous increase of People v. Anderson, 44 Cal. 65; Carter v. State, 2 risk. He might add that the master is already lia- Cart. 617; Gale v. Rector, 5 Bradw. 484; Harris v. ble for carelessness in selection, and there is there- Panama R. Co., 3 Bosw. 7. In Luning v. State, 1 fore all the less need of making him an insurer of Chand. (Wis.) 178, and Wade v. De Witt, 20 Tex. his servants' care toward one another. Finally, he 398, the admission of such evidence was held dissays: “And even if the law were made obligatory cretionary. in spite of bargains to the contrary, it would not profit the servant. Because it is certain there is a In Odd Fellows' Mutual Life Insurance Co. v. Rohnatural rate of wages, one fixed by what neither kopp, Pennsylvania Supreme Court, March 17, 1880, master nor man can control, and that if they are 8 W. N. C. 489, a policy of life insurance contained practically added to one way, they will be taken a clause that the company should not be liable if from in another. If a manufacturer's wages now the insured became so far intemperate as seriously are £10,000 in the year, and he is made to pay com- or permanently to impair his health. In an action pensation to the amount of £1,000 a year, his wages brought upon the policy, held, that evidence to show will fall to £9,000. He cannot charge more for his that deceased was an habitual drunkard prior to the produce because he has to pay more; and if he date of the policy, and that he had created an appecould, his sales would diminish, and injury be done tite which had become fixed upon him, but which to the workman in loss of work." For our own had not seriously injured his health at that date, to part we regard the proposed change as so impolitic, be followed by the testimony of experts to show unjust, and unequal, as to verge on folly.
that the amount he drank before that date together
with what he drank afterward was sufficient to seri-foot-paths and walks over the park in various direcously impair a man's health, was inadmissible, as tions, but those paths were not a part of the system being immaterial and irrelevant. The court said: of highways. They were not laid out as public “ The offer did not propose to show that he there- ways, and the town is not liable under the statutes after became so intemperate as to either seriously or respecting highways or town ways for any defect or permanently impair his health. It was to show by want of repair which may exist in them.
Oliver v. experts that the amount he had drunk before and Worcester, 102 Mass. 489; S. C., 3 Am. Rep. 485; the amount he had drunk afterward was sufficient Gould v. Boston, 120 Mass. 300. Nor can the town to seriously impair a man's health. The capacity of be held liable upon the ground that it negligently persons to drink liquor is so unequal, and the effect suffered a dangerous place to exist in the park, and is so different on different individuals, it by no failed to give proper notice to persons using the means follows that a quantity sufficient to affect park by its invitation or license. It holds the park, some other man's health had the same effect on the not for its own profit and emolument, but for the health of Rohkopp. The question in issue was, did direct and immediate use of the public.
If it can his intemperance so affect him ? The court opened be said that there is any duty in the town to conthe door wide and permitted the plaintiff in error struct paths over it or to keep such paths in repair, to give all the evidence offered of Rohkopp's in- it is a corporate duty imposed upon it as the repretemperate habits and the effect on him. That he sentative and agent of the public and for the public was habitually intemperate was not denied or con- benefit. For a breach of such a duty, a private actroverted. It was clearly proved. The contention tion cannot be maintained against a town or city, was whether its effect was such as to bring him unless such action is given by statute. Hill v. Boswithin the clause of the policy which would pre-ton, 122 Mass. 344; S. C., 23 Am. Rep. 332, and vent a recovery. Possessing a constitution and cases cited." The defendant had judgment. health which habitual intemperance for so many years had been unable to seriously injure, showed a capacity to withstand its action, that justly con
The other case, Larrabee v. Peabody, was an action fined the evidence to the effect the liquor had on
to recover for personal injuries sustained by falling him, and not what effect it might have on some
into a trench near a public building. The building other person.” Sharswood, C. J., and Gordon and
in question, which was erected and owned by the
defendant town, was used for a town house and Trunkey, JJ., dissented. This condition was distinguishable from the usual conditions that the hab-school-house, and it also contained an audience hall, its of the insured are sober and temperate, in which
which had been used for various kinds of public case it is sufficient to show the contrary, and it is meetings and entertainments, the occupants paying no answer that the intemperance was harmless;
a small sum for the use of it. On the evening of Southcombe v. Merriam, 1 Car. & Marsh. 286; and July 10, 1877, an entertainment was given by a temthat the policy shall be void if the insured die from perance society in the hall, which the plaintiff atthe use of intoxicating liquors.
tended; and no charge was made to the society for the use of the ball on this occasion or during that
A trench had been dug in front of the Two recent Massachusetts cases are noteworthy building for the laying of a water pipe to connect on the subject of the liability of towns for injuries the aqueduct in the street with the pipes in the caused by defects in public places. In Clark v. building. There was no barrier placed to guard the Waltham, 3 Mass. L. Rep., July 10, 1880, it appeared trench. The plaintiff, in passing out of the buildthat as the plaintiff was passing along one of the ing, stepped backwards and fell into the trench, refoot-paths or concrete walks of a public park, after ceiving the injuries complained of.
The place dark, and just before leaving the same and entering where she stepped into the trench was from two to upon one of the public streets, and being barefoot four feet from the outer direct line of travel from at the time, he stepped upon the rough iron stub of the street to the steps, and there was a grass plot a post, which lacerated his foot and caused the in- covering that portion of the yard. The court said: juries complained of; that this iron stub was the (Morton, J.) “It is not claimed that the town is remnant of an iron post or rod fastened into a stone liable as for a defect in a highway. The trench was sleeper, which originally, with other posts, pro- not in the highway, nor in dangerous proximity to tected an opening in a continuous fence around the it. But the plaintiff claims that the trench was in park from all but foot passengers, and was at the dangerous proximity to the way or path leading to entrance of the park, and slightly outside the limits the town house, and that the town is liable to the of the street; that this post had been broken off a same extent as a private owner who invites persons long time before the accident; that this park was to enter his hall would be. If we assume, in favor conveyed to the town upon the condition that it of the plaintiff, that upon the evidence, a private should “forever after be kept open as and for a owner would be liable to her for her injury, yet we common for the use of said inhabitants of the town are of opinion that the town is not liable. The only of Waltham.” The court said: “By accepting the ground upon which it is claimed that a city or town deed of conveyance, the town agreed to the condi- is liable for defects in, or negligence in the repair or tion contained therein, and therefore holds the management of, buildings owned by it, is that, at park for the use of the public. It had constructed the time the liability attaches, it is using the build
ings for emolument or profit as a private owner sell the goods, and account for the proceeds less the might. Oliver v. Worcester, 102 Mass. 489; S. C., freight. The defendant sold the goods and con3 Am. Rep. 485; Hill v. Boston, 122 Mass. 344; S. verted the proceeds. Held, not larceny, but false C., 23 Am. Rep. 332. In the present case this ele- pretenses. ment of liability is wanting. The town received no Luddington v. Bell, p. 138. A creditor of a discompensation or profit from the use of the hall on solved partnership accepted the note of one of the this occasion. The case therefore is not within the partners for a portion of his demand, in discharge reason of the rule relied upon, which creates a lia- of the maker from liability for the partnership debt; bility of the town. The fact that the town had held, an effectual release. before this occasionally let the town house for pub- Kilmer v. Smith, p. 226. — Defendant A. conlic meetings and entertainments is immaterial. Such tracted to convey to defendant B. certain premises occasional lettings would not create a permanent subject to certain mortgages. B. assigned the conand continuing liability. The liability, if any, at- tract to plaintiff. Without the consent or knowltaches because the town deals with and uses the edge of B. or the plaintiff, A. inserted in the deed public building for the purposes of profit, as a pri- a clause binding plaintiff to assume the payment of vate enterprise, and it continues only so long as it the mortgages. The plaintiff, supposing the deed thus uses it." These decisions are in harmony with conformed to the agreement, accepted it and put it the current of authority which denies the common- on record. Held, that plaintiff could maintain an law liability of a municipal corporation for such ac- action to reform the deed by striking out that cidents in cases falling short of nuisance. The Hill clause. case was that of a child injured by an unsafe stair- Hay v. Star Fire Insurance Co., p. 235. — In an way in a public school-house.
action to reform a policy of insurance, after loss, held, (1) an agreement to renew a policy of insurance
is presumed to imply that no change is to be made SEVENTY-SEVENTH NEW YORK REPORTS. in its terms. (2) Such action is not "for the re
covery of any claim by virtue of this policy,” within THIS volume includes decisions from May to Sep- the meaning of a provision that “no action for the
tember, 1879. The following are noteworthy recovery of any claim by virtue of this policy shall as of general interest :
be sustainable" unless commenced within twelve Chipman v. Palmer, p. 51. — In an action of nui-months after the loss. (3) The limitation comsance against several acting independently in pol. mences when the amount of the loss is due and payluting a stream by the discharge of sewerage from able, and not when the loss occurred. the premises of each, each is liable only to the ex- First National Bank of Meadville v. Fourth Natent of the separate injury committed by him. tional Bank of the City of New York, p. 320. On
Dunham v. Bower, p. 76. — An action by the owner the 22d of March, 1866, the National Bank of Crawof goods against a carrier for damages for failure ford county, Pennsylvania, made and delivered to to transport such goods, is barred by a previous plaintiff a sight draft upon Culver, Penn & Co., of judgment in favor of the carrier against the owner New York city. The plaintiff indorsed it and sent for the freight of such goods.
it by mail to defendant, its corresponding bank in Ring v. City of Cohoes, p. 83. — The plaintiff was that city, for collection and credit. Defendant redriving a blind horse and a wagon on one of defend- ceived it on the morning of March 26, presented it ant's streets; the horse becoming frightened, ran on the same day, received the drawee's check upon away, and was turned by a heap of ashes, negli- the Third National Bank of New York, and delivgently suffered in the street, into the gutter, where ered up the draft. The check was not presented the wagon struck against the nozzle of a city hy- for payment until the next day, and that through drant projecting four inches over the gutter, and the clearing house. The drawees failed on the latwas overturned, and the plaintiff was injured. ter day, and the bank refused to pay the check. Held, (1) that the running away of the horse would The defendant on the same day returned it and renot prevent a recovery; (2) that in the absence of ceived back the draft, formally demanded payment evidence that the hydrant was improperly placed, of the draft, protested it for non-payment, and the negligence could not be presumed from its position next day mailed notice thereof to plaintiff and the and construction; (3) that in the absence of a find- drawer, The drawee's account was largely overing that the accident was caused by the heap of drawn on the 26th, but the bank had been in the ashes no recovery could be based on the negligence habit of allowing such overdrafts for a month, the in suffering it to accumulate in the street.
drawees making their account good on the next Matter of Dodge and Stevenson Manufacturing Co., day, and the bank paid all their checks drawn that p. 101. — A judge is not disqualified from sitting in day, and some drawn later than the one in question, a cause to which a corporation is a party, by his and continued to do so down to the failure on the kinship to a stockholder of the corporation.
next day. In an action of damages for negligence Zink v. People, p. 114. — Defendant, by false rep- against defendant, a recovery was allowed for the resentations and with a design to cheat the com- amount of the draft with interest. Held, (1) that plainant out of goods, induced him to ship goods defendant was negligent and liable for the conseto him, with the indicia of ownership, on the agree- quent damages; (2) that the facts did not justify ment that the defendant was to advance the freight, the finding that the draft would not have been paid