jure n' that, in the exercise of ordi- | tory to become unsafe, whereby it gave defendant could have foreseen way, and caused the injury, is sufficiently tha. cident would probably occur by definite and certain, without specifying loading cars in the manner in which the particular defect causing the ladder to they did, they must find for the defendant." break down.-Schmidtkunst v. Sutro, (C. - Id. P. N. Y.) 706. Evidence. *1 Remote and proximate cause. 3. Defendant's train having become uncoupled through a defective appliance, a brakeman, while engaged in repairing the mishap in the portion of the train remaining stationary, was, by the negligence of the engineer, backed upon by the engine and forward part of the train, and killed. Held, that the proximate cause of the accident was not the defective appliance, but the negligence of a fellow-servant. Dykman, J., dissenting.-Course v. New York, L. E. & W. R. Co., (Sup.) 312.* 4. A conflagration is the natural and proximate result of the fall of a building in which fires are used; and one who is re 8. In an action against a railroad for injuries caused by a defective or mismanaged switch, there was no prejudicial error in asking defendant's switchman if he recollected a prior act of negligence on his part, where it appears that the question was asked more to test his recollection than with any other view, and nothing more was asked in regard to it.-Stodder v. New York, L. E. & W. R. Co., (Sup.) 780. 10. NEGOTIABLE INSTRU MENTS. sponsible for the fall must answer, also, for Indorsement by agent, see Corporations, 9, the damages caused by the fire.-H. L. Judd & Co. v. Cushing, (Sup.) 836. Fires. 5. Where two adjacent building have separate and distinct walls of brick and stone, they are separate buildings within the rule in Ryan v. Railroad Co., 35 N. Y. 210, that where a house takes fire by the negligence of the owner, and the flames extend to and destroy an adjacent building, the owner is not liable to the owner of the second building; and the rule is not changed by the fact that the same person owns both buildings, so as to make him liable to the occupants of the second building.—Id. Contributory negligence. Alteration. 1. F. obtained from defendant a draft on another bank for $8.50. This he fraudu lently raised by adding a "y" to the written "eight," and a cipher to the figure 8. Plaintiff purchased it at its apparent face value, in good faith. The drawee refused to pay it. Held, that plaintiff could not recover from defendant even the amount for which it was originally drawn. -Flannagan v. National Union Bank, (City Ct. N. Y.) 488.* Accommodation note. whether the new note was an accommodation note, or was given because defendants did not dispute their liability on the former note, was for the jury.-Dowden v. Calvin, (C. P. N. Y.) 161. Indorsement and transfer. 2. Where defendants, whose names had been signed to a note without authority, gave the payee a new note in place of the 6. In an action against a city for inju-old. at the latter's request, the question ries received in falling from the draw of a bridge, it appeared that at 9 o'clock P. M. while the bridge was well lighted, policemen and gate-keepers at their places, plaintiff, not heeding the warning whistle nor shouts of policemen, walked on the draw before it commenced to turn, and, while it was turning, stepped off at the further end into the river. The gate at the stationary part of the bridge was closed before the draw turned, but he did not see it, nor know that the draw was turning, nor did he look or listen for signals. He could have safely remained on the draw until it turned back to its place. Plaintiff was well acquainted with the bridge, and knew the draw was liable to turn at any time. Held, that the injury was the result of plaintiff's negligence. Muhr v. City of New York, (C. P. N. Y.) 59.* Pleading. 3. In the absence of fraud, an assignee for value of a note may recover from the maker the face of the note, with interest, though he bought the note, after maturity, for less than its face value.-Hartnett v. Adler, (C. P. N. Y.) 713. 4. Evidence that the drawer of a check payable to his own order gave it, without indorsement. to plaintiff, asserting that it was good, that it was certified, that the money was in the bank, and that all plaintiff had to do was to take the check and get the money, does not show an assignment of the fund represented by the check. -Lynch v. First Nat. Bank, (Cir.) 628.* 7. An allegation that defendants negli- 5. An agreement by indorsers (copartgently allowed a step-ladder in their fac-ners) with the holder of notes that the lat v.2N. Y.S.-59 the party against whom it is offered serves ter should try to collect them from the makers, and on his failure to collect the indorsers would pay, does not alter the rights of the parties, and payment by the executors of one of the partners, after the expiration of the statutory period, does not charge the other partner, especially where the statutory period had also elapsed since the last attempt to collect from the mak-negotiable note sued on, properly indorsed, 12. Upon the production in court of a ers.-Grimes v. Osterhoudt, (Sup.) 436. 6. G. Bros. being indebted to defendants tiff is the holder, but also that he became the presumption arises, not only that plainL. Bros. on a note for $2,000, which the the holder before maturity, and for full latter had indorsed and negotiated, they value.-National State Bank v. Richardloaned G. Bros. three other notes with which to pay it. son, (Sup.) 804. When these became due G. Bros., being unable to pay them, defendants loaned them five other notes, executed by third persons, for that purpose. The $2,000 note not being paid by G. Bros., defendants were compelled to pay it themselves. Plaintiff received the notes in suit (two of the five) from G. Bros. after maturity, as collateral security for a preexisting debt. Held, that G. Bros. could not have maintained an action against defendants L. Bros. on the notes, the pay ment of the $2,000 note being a condition precedent, and that plaintiff was in no better position.-Geyer v. Lawrence, (Sup.) 803. Acceptance. ing oats, to sell for the purchaser twice the 13. An undertaking by a company sellquantity bought by him, at $15 per bushel, appearing on its face impracticable, and there being evidence that the company was represented to have a capital of $100.000, less than 10 per cent. of that amount being in fact paid in, and of representations as to profits made by others, and also evidence that the plaintiff was not a bona fide holder of the purchaser's note, the case should be submitted to the jury on the question of fraud.-Matson v. Blossom, (Sup.) 551. NEW TRIAL. Newly-discovered evidence, see Insur- 7. Under 1 Rev. St. N. Y. p. 768, § 6, making acceptance in writing requisite to charge the drawee as acceptor of a bill of exchange, the drawee is not liable to the payee without such writing, though he was indebted to the drawer for the amount, and orally promised the payee, when the bill was presented, that he would pay it.-tion by his mother's father, four months Weinhauer v. Morrison, (Sup.) 544. Demand, protest, and notice. 8. Where a check was delivered by the drawee without indorsement to plaintiff. and he was told to collect it, the bank cannot be held liable to plaintiff, as assignee, on a mere production of the check and demand for payment, without any notice of the assignment, even if the transaction amounted to an assignment.-Lynch v. First Nat. Bank, (Cir.) 628. 1. Where plaintiff sues for land as the legitimate son and only heir of one deceased, and introduces the record of an ac after his birth, against deceased, for se- 2. A new trial will not be granted on the ground of surprise, occasioned by the reception of certain evidence which it is alleged plaintiff could have contradicted if she had anticipated it, and had not been prevented by illness from attending at the trial, where no suggestion of surprise was made at the trial, and no opportunity was requested to procure plaintiff's testimony. 9. The testimony of the notary that he gave the note to his clerk, who afterwards reported that he had presented it, and mailed notice of non-payment, is hearsay as to whether the note was presented or notice given.-Gessner v. Smith, (City Ct.-Foster v. Easton, (Sup.) 772. Newly-discovered evidence. N. Y.) 655. 10. A notary's certificate of protest and notice is of no effect as evidence, when it is shown by the testimony of the notary that he did not personally present the note, nor give the notice.-Id. 11. Under Code Civil Proc. N. Y. § 923, making a notary's certificate of protest and notice presumptive, evidence, unless 3. A new trial will not be granted for alleged newly-discovered evidence, consisting of transcripts from the books, and the testimony of the book-keeper, of the firm of which the applicant was a member, and from which he derives title; such evidence having been producible at the trial, and being cumulative and impeaching, and no tice of its materiality having been conveyed by the answer.-Whitney v. Saxe, (City Ct. N. Y.) 653. Motion for reargument. 4. Where, after an order for a new trial, defendant has noticed the cause for trial, proceedings of plaintiff, on a motion for reargument, do not stand in the way of defendant's right to proceed under the order. -Van Gelder v. Hallenbeck, (Sup.) 252. Notice. Bona fide purchasers, see Vendor and Vendee. 3. In an action to enjoin the operation of an oil refinery, the refuse from which pollutes plaintiff's well, and for damages, a jury is properly impaneled to try certain questions of fact, and instructed to find a special verdict, under Code Civil Proc. N. 971, providing that issues of fact may be tried by a jury, the questions to be distinctly and plainly stated for trial.-Dillon v. Acme Oil Co., (Sup.) 289. 4. Where oil from defendant's works soaked into the ground. and was carried by a subterranean stream to plaintiff's well, defendant is not liable for its pollution, and the works will not be enjoined in the absence of evidence of negligent operation. Of attorney's lien, see Attorney and Client, 3. NUISANCE. Remedies-Injunction. 1. Defendant maintained an uncovered pile of moulding sand near plaintiff's residence, from which sand was blown when the wind was in a certain direction, causing annoyance and discomfort to the inmates of such residence, and injury to the furniture. Held that, while such act was lawful if properly conducted, a finding that the same was so improperly conducted as to constitute a nuisance was warranted. and that an injunction properly issued restraining its continuance. Dunsbach v. Hollister, (Sup.) 94.* Action for damages. 5. In an action for damages from a nuisance caused by a sand hill, the court charged: "If it [the sand] is of such a nature that it may be cast about by the wind, and blown to the house of a neighbor, then the man putting it there must prevent it, if he can by any reasonable means." The court then suggested various means of preventing it, such as a board roof, tarpaulin that it was for the jury to see if there was cover, keeping it wet, etc., and remarked sand. Held, that such remark was not imany means to prevent the blowing of the proper, as leaving the jury to imagine some uncharged and unproved negligence. -Dunsbach v. Hollister, (Sup.) 94. 6. Such injury is not caused by act of God, for which defendant is not responsible. there being no showing that care had been taken to guard against ordinary winds, and that the injury was caused by a gale of unexpected violence.-Id. 2. Defendant operated an electric light station before plaintiff purchased the adjoining houses, but later erected an extension, and placed therein a 400-horse-power engine and a 16-foot cog-wheel. The machinery could have been driven with smaller engines and belts, with little injury to plaintiff's property, but the large engine and wheel caused a jar and annoying noises after night, without causing permanent injury to the building. The extension and engine were properly constructed, and the business carefully conducted. Smaller engines would occupy more space, and require greater expense. Defendant had in: vested about $200,000, and furnished light to the city and many merchants. New buildings were under construction into which defendant intended removing, when the station complained of would be discontinued. Held that, while defendant's business was a nuisance, and should be restrained, in view of the fact that compensation in damages could be made, and that great loss to defendant and inconvenience to the public would result from its immediate suspension, time should be given de-re Wortman, (Sup.) 324. fendant to remove its plant before the judgment should take effect.-Braender v. Harlem Lighting Co., (Sup.) 245. 7. It is unnecessary to notify defendant of the injurious effect of such act before bringing an action for damages and an injunction.-Id. OFFICE AND OFFICER. See, also, District and Prosecuting Attorneys; Municipal officers, see Municipal Corpora tions, 3-5. Presumption of performance of duty, see Appointment. 1. A petition for mandamus to the city council to appoint to office an honorably discharged soldier of the civil war, under the civil service law, is fatally defective in not averring that the council knew that he was an honorably discharged soldier.-In 2. Under Buffalo city charter, tit. 2, § 50, authorizing the street commissioner to appoint street inspectors, and naming them proper case to discharge him, does not confer jurisdiction on such officers to take an infant from the custody of the mother, and award it to the father.-People v. Parr, (Sup.) 263. as city officers, a street inspector is within | habeas corpus, and to examine into the cause the New York civil service laws, declaring of the detention of a prisoner, and in a that preference shall be given to honorably discharged soldiers of the civil war.-Id. 3. Laws N. Y. 1884, c. 410, § 4, as amended by Laws 1886, c. 29. § 1. requiring that honorably discharged soldiers of the late war shall be preferred for appointment to positions in the civil service of the state and cities affected by the acts, applies to New York city, though previous statutes, also applicable to New York, with other cities, provided for appointments and promotions only on an examination as to fit | ness.-McGuire v. Byrnes, (Sup.) 760. Qualification. 2. Laws N. Y. 1877. c. 417, subd. 21. repealing Laws 1847, c. 280, § 16, which conferred on a single justice the powers of a chancellor or vice-chancellor. deprives such justice of equity powers out of court; and therefore a county judge, under Code Civil Proc. § 241, giving a county judge the powers conferred by law, in general language, upon an officer authorized to perform the duties of such justice, has no authority to make an order taking an infant from the custody of its mother, and awardit to its father, as such jurisdiction is purely equitable.-Id. Vagrant child. 4. Laws N. Y. 1884, c. 410, § 4. providing that honorably discharged soldiers of the civil war shall be preferred for appointing ment in the civil service of the state and of the cities, is not violative of Const. N. Y. art. 12, § 1, declaring that no other oath, declaration, or test shall be required as a qualification for office than that contained in this constitution.-In re Wortman, (Sup.) 324. 3. Under Pen. Code N. Y. § 291, as amended in 1886 and 1888, and by the consolidation act of 1882, §§ 1594-1632, providing that, when complaint is made against 5. Nor does it violate Const. U. S. amend. any vagrant child, the magistrate must 14, § 1, prohibiting a state to pass any law cause the child to be brought before him abridging the privileges or immunities of for examination, and also cause the parent, citizens, or to deprive any one of life, lib-guardian, or master of the child, if the erty, or property without due process of law.-Id. Injunction. child has any, to be summoned to attend the examination, where the examining magistrate commits the child without summoning his guardian, and it appears that 6. Under Buffalo city charter, tit. 2, She had a guardian, the child will be re50, authorizing the street commissioner to leased on habeas corpus.-In re Maloney, appoint health and street inspectors, and (Sup.) 247. naming such inspectors as city officers, a street inspector is within the New York civil service laws, and, in an action to restrain payment for the services of a street commissioner appointed without regard to civil service rules, a temporary injunction will be continued until final decision.Rogers v. City of Buffalo, (Sup.) 326.* 7. Equity will not restrain the incumbent of an office from exercising its duties pending an action involving his title thereto.-Breslin v. Quinn, (Sup.)577. Orders. Interlocutory order, see Taxation, 3. Parties. Defendant, necessary parties, see Husband and Wife, 7. Plaintiff, proper parties, see Corporations, 24. PARTITION. Vacating judgment. A judgment directing the sale of lands found by the county court not to be susceptible of partition, though improper under Code Civil Proc. N. Y. § 1533, providing that, where it appears that a partition cannot be made without great prejudice Of publication of summons, see Writs, 4, 5. to the owners, the complaint shall be dis PARENT AND CHILD. Conveyances between, see Fraudulent Conveyances, 9, 10. Custody of children, see Divorce, 10. Custody of children. 1. Code Civil Proc. N. Y. §§ 2017-2019, giving justices of the supreme court, or any one authorized to perform the duties of such justice, jurisdiction to award writs of missed, will not be set aside on the motion of infant owners, when the judgment, sale. and confirmation were unexcepted to; the remedy, if any, being against the guardian ad litem in the action for negligence. Prior v. Prior, (Sup.) 523. PARTNERSHIP. Conveyances between partners, see Fraudulent Conveyances, 1. Right to firm name, see Good- Will. What constitutes. establish a lien on partnership property as 1. An agreement expressly provided that against the holder of a mortgage on the inthe relation between the parties should not dividual interest of a partner, it appeared be one of partnership. By a new agree that, on dissolution of the firm, such credment plaintiff agreed to act under defend-itor had accepted a new firm, then formed, ant's management, at such times and as his debtor. It was not shown that he places, during theatrical seasons, as he had not waived his claim against the memmight elect, and that she would not act bers of such former firm, and it appeared under the management of any other per- that he had long delayed asserting such son that a correct account should be kept, claim; that the mortgage had been transthe books to be open to plaintiff's inspec- ferred; and that new rights had intervened. tion at all times, and that the personal ex- Held, that the creditor was not entitled to penses, except railway tickets, of each such lien.-Consaulus v. McConihe, (Sup.) party, should be an individual matter, but 89.* that all other expenses of the company should be deducted from the receipts, and the residue be equally divided between plaintiff and defendant. Held not a copartnership. - Haberkorn v. Hill (Sup.) 243 * Authority of partner. 2. One partner can in the firm name execute a mortgage of the firm property, to secure a firm debt, without consulting his partner.-Neer v. Oakley, (City Ct. Brook.) 482.* Accounting. 3. The agreement for payment of interinterest shall be charged for a deficiency, est on excess of contribution implies that and therefore the partners are entitled to share in the profits in proportion to their agreed contributions, subject to payment of interest on deficiency, rather than in proportion to their actual contributions. In re Laney, (Sup.) 443. 4. Such deficiency is determined by deducting from each partner's investment at the beginning of the year the amounts drawn out by him during the year, and add ing his share of the profits. The interest to be charged or credited is computed upon the difference between this result and the prescribed contribution to capital stock.-Id. 5. It appeared in an action for account ing that, by reason of uncollected and unconverted firm assets, no final decree could then be made. Held, that danger of loss or waste to the property in dispute was sufficiently shown to warrant the appointment of a receiver, under Code Civil Proc. N. Y. § 713, providing that a receiver may be appointed on the application of a party establishing an apparent right to the property, and that there is danger of its loss or injury, though the complaint simply prayed an accounting; but as neither party was alleged to be insolvent, they would not be required to pay over money of the firm in their hands to the receiver.-Smith v. Fitchett, (Sup.) 261. Firm and private creditors. 7. Where a mortgage of firm property is made by one partner in the firm name, and immediately assigned by the mortgagee to the wife of the partner executing it, evidence is admissible to show that the mortgage was made to secure a firm debt to the assignee, instead of the mortgagee.-Neer v. Oakley, (City Ct. Brook.) 482. 8. Where the testimony of the partner who executed a mortgage and the assignee tends to show that the loan for which the mortgage was given was made for the benefit of the firm, and not for the individual benefit of the executing partner, as against the other partner's denial of any knowlted to the jury.-Id. edge of such indebtedness, the question of the firm indebtedness is properly submit Surviving partners. 9. Where partners have agreed that one contributing more than his share of the capital stock shall be allowed interest on the amount so contributed, and, pursuant to a previous agreement, the partnership is continued after the death of one of the partners, his administrator may rightfully allow the excess which his intestate had in the business at the time of his death to remain at the stipulated rate of interest.— In re Laney, (Sup.) 443. 10. A sum fixed upon as the estimated value of intestate's services, and which it was agreed should be deducted from the share of profits going to his estate, belongs to the partnership, and not to the surviving partners.-Id. 11. A partner may by agreement bind his estate to a continuance of the partnership after his death.-Id. 12. A partnership contract provided that on the death of either partner the business should be carried on by the survivor for five years, the deceased partner's estate to share the profits and losses, as the deceased partner would have done had he lived. One partner died testate, making no provision for his executor carrying on the business. The survivor continued the business for a time in the partnership name, and failed. He'd, that the contract 6. In an action by a creditor of a firm to conferred no power on the survivor, but |