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of persons acting as surgeons; and 16. A refusal to charge that if the neg2d. If he did, whether he was charge- gligence of the plaintiff contributed able with negligence in not apply- to the injury, the defendant was not ing it in his treatment of the plain- responsible, is not erroneous, when tiff Whether he possessed greater put upon the ground that there was skill, or had been successful in the no evidence, in the case, of the plaintreatment of other patients, is wholly tiff's negligence; or, if there was immaterial.


any negligence, it was the result of

ignorance on the part of the plain12. Where the judge charged the jury

tiff'as to how the injured limb should what it was impossible to show that

be treated, which ignorance it was a surgeon possessed the skill re- the duty of the defendant to remove. quired, except by showing what skill he applied in the treatment of the 17. Where the judge charged the jury particular case; it was held that if

that a surgeon " contracts that he this part of the charge was to be will bring to the case that ordinary constrned by itselt, without refer- and reasonable degree of skill which ence to other parts of it, the propo- is possessed by the average of his sition could not be supported. But

profession;" that “ he undertakes to that it construed (as the context bring to the case the exercise of that warranted,) as an instruction that reasonable degree of skill ordinarily the defendant was required to have possessed by the members of the an ordinary degree of skill, and

profession”-addirig the remarkwhether he had any more was wholly "I think it the reasonable rule that immaterial, it was correct.

ib he is required to exercise the arerage

skill of his profession;" Held that 13. That a physician or surgeon pos

the judge having first laid down the sesses skill, may be shown by the rule correctly, a change of phraseoltestimony of members of the same ogy, in the latter part of the instrucprofession who can speak from per- tion, did not change the rule; il sonal knowledge of his practice. being obvious that in the last senWhen the point in issue is, whether tence he did not intend to modify skill was applied in a given case, or vary the rule previously stated. the possession of skill, without proof

sh that it was applied, would be no 18. If the case is a new one, the patient defense to an action for malpractice. must trust to the skill and experience But there may be cases in which of the surgeon he calls. So must he such proof is admissible. Per Mul

if the injury or disease is attended P.J.


with injury to other parts, or other

diseases have developed themselves 14. When it is proved that the surgeon for which there is no establisbe i

has omitted, altogether, the estab. mode of treatment. But when the lished mode of treatment, and ad case is one as to which a system of ed one that has proved to be injuri. treatment has been followed for a ous, evidence of skill, or of reputation long time, there should be no deparifor skill, is wholly immaterial, except ure from it, uwless the surgeon who to show (what the law presumes) does it is prepared to take the risk of that he possesses the ordinary de- establishing, by his success, the pregree of skill of persons engaged in priety and safety of his experiment. the same profession. In such a case, Per MULLIN, P.J.

io it is of no consequence how much skill be may have; he has demon

PLEADING. strated a want of it, in the treatment of the particular case. ib


COMPLAINT. 15. The failure to use skill, if the sur

EQUITY, 1, 2. geon has it, may be negligence; but when the treatment adopted is not in accordance with established prac

POWER. tice, but is positively injurious, the case is not oue of negligence, but of When a public body is clothed with want of skill.

ib power to do an act, which the publie



interest requires to be done, and the | 6. The 33d section of the Code, which means of performance are placed at provides that in case of the death of its disposal, the execution of the a sole plaintiff, the action may be power may be insisted on as a duty, continued in the name of his reprenotwithstanding the statute confer- sentatives or successor in interest, ring it is only permissive. Hines v. does not apply to a case where a The City of Lockport,

878 sheriff sues as such, and dies during

the term at which the action is tried, and his deputy is also dead. Orser

The Glenville Woolen Company, 371 PRACTICE.

7. Such a case is provided for, how1. If there is any foundation for the

ever, by the Revised Statutes, which objection that a recovery has been direct that “where an action is auhad upon grounds not alleged in the

thorized or directed by law to be complaint, it should be made in sea

brought in the name of a public offiAfter judgment, it is too late

cer, his death or removal shall not for the unsuccessful party to avail abate the suit, but the same may himself of it. Updike v. bel, 15

be continued by his successor; who

shall be substituted by the court, 2. Under the system of practice estab- and a suggestion of such substitu

Jished by the Code, in order to en- tion shall be entered on the record.” title a defendant to a new trial, on (3 R. S. 670, 5th ed.)

ib the ground that the plaintiff has not proved the case made by his com

See CREDITORS. plaint, it must appear that the cause

EVIDENCE, 5 to 8. of action is unproved in its entire

HIGHWAYS, 7, 8. scope.



JURISDICTION. 3. When a nonsuit is moved for upon

USURY, 1, 2 the whole case and evidence, and the right judgment or decision is rendered, it will not be set aside, as

PREMIUM NOTES. a general rule, upon exceptions to such decision, because an erroneous

See INSURANCE COMPANIBB. reason was given for denying the motion. But if the point presented for the motion be a sound one, it

PRINCIPAL AND AGENT. must be clearly avoided or overreached by other clear facts or points 1. It is well settled that a debtor is in the case; or else an exception

authorized to pay to an agent any to the erroneous ruling must prevail.

sum which is due upon a security Slreinaker v. The Glens Falls Insur

which has been entrusted to the ance Company,


agent by the holder, for the purpose

of collecting any part of it; as 4. Service by publication is valid with- where the agent has been authorized

in the jurisdiction by whose laws it to receive the interest, only, but reis authorized, but of no validity ceives the principal. Doubleday v. beyond it. Phelps v. Baker, 107



5. If a complaint be amended, a copy 2. Indeed the authorities go to the

must be served on the defendant, extent of holding a payment valid, and the right to answer is a sub- made to an agent who is merely stantial right. Hence the neglect to entrusted with the possession of the serve an amended complaint on in- security, without express authority fant defendants, in a foreclosure to receive or collect any part of it. suit, is, at least, a great irregularity. The ostensible authority attributed But if too much time bas elapsed, to a party to whom is entrusted an and too many innocent parties are instrument to secure the payment interested, the judgment will not be of money, is to receive payment disturbed on that ground. McMur- according to its terms. Per TALray v. McMurray,


ib VOL. LX



3. The principal is, as to third per- but was at his residence in this State,

sons, not having any notice of a where he had committed no criminal
limitation, bound by the ostensible offense for which he could be ar-
authority of the agent, and cannot rested or imprisoned; having made,
avail himself of secret limitations at most, as was alleged by the payee,
upon the authority and repudiate only some fraudulent representa-
the agency, where innocent third tions in respect to the value of land
persons have in good faith acted upon which he had a mortgage that
upon the ostensible authority con- he had sold to the payee of the
ferred by the principal.

ib note; which sale, and the represen-

tations that induced it, were made
4. The plaintiff held a promissory note in the State of Illinois ; it was held

for $800 and interest, payable to her that as there was no ground for the
order, at the office of W., made by defendant's arrest, in either State,
the defendant. When it fell due, the on a criminal charge, or for his being
plaintiff, without indorsing the note, taken to Illinois in any criminal pro-
handed it to M. to present for pay- ceeding for such fraud, a threat of
ment. M, accordingly presented the such an arrest constituted no defense
note, at the place of payment, to- to an action upon the note. Knapp
gether with a forged order upon W. v. Hyde,
purporting to be signed by the plain-
tiff, requesting W. to pay her money 2. Where, in an actior upon a promis-
to M. The principal and interest

sory note, the case does not show
was thereupon paid, by W., and the

that the note was negotiable, its
note delivered up and canceled, and

negotiability will not be presumed.
M. absconded with the $800. Held Evans v. Williams,

that the payment was clearly valid,
both upon authority and principle, 3. If a note is not negotiable, the as-
and discharged the note.


signee takes it subject to all defenses

of the maker against the payee;
5. Held, also, that the fact that the pote

whether it be due at the time of the
was not indorsed by the payee was
of no importance.


assignment or not; the same as the

holder of a negotiable instrument
6. Although an indorsement is re-

does, who takes it after it has be

come due.
quisite to render a note negotiable,
it is not necessary to the validity of
a payment. A delivery of the note,

to the maker, is all that is required,


upon the payment thereof, either to
the payee or his agent.



7. The presentation, by an agent, of a

spurious order from the payee, upon
the maker of a note, for the amount
due upon the note, the maker sup-

posing the order to be genuine, can-
not have the effect of invalidating

a payment otherwise justified. ib







1. In an action against a railroad com-

pany, to recover damages of the
defendant, for causing the death of
the plaintiff's intestate, a brakeman
in its employ, by negligence, the
defense was that the intestate was
guilty of negligence, or want of

1. Where the defendant, at the time

of making a promissory note, was
not under arrest or imprisonment,

care, which contributed to his death, him off the cars, as he was required
in being absent from his post, at to do, by bis instructions. In an ac-
the time, and omitting to apply the tion to recover damages for such
brakes. And the evidence rendered ejection, the referee reported in
it more than probable that but for favor of the plaintiff, on the ground
such absence, his life would not that the conductor, instead of punch-
have been endangered. Held that it ing the plaintiff's ticket, should have
was erroneous for the judge to leave expelled him from the cars upon
it to the jury to determine whether discovering that his ticket was by
the intestate being absent from his the other route, and his refusing
post, warming or enjoying himself to pay the additional fare. Held,
by a fire, was guilty of contributory that this was erroneous. That the
negligence; whether the absence of conductor was under no obligation
a caboose did not authorize him to to the plaintiff to eject him from the
leave his post, in a cold morning; cars, at any time before he should
and whether the train being on an arrive at the point to which he was
ascending grade, he had not a right entitled to travel, on his ticket, so
to suppose his services were not as long as he persisted in remaining
likely to be called in request as they on the train. Adwin v. The New York
would be on a downward grade. Central, foc., Railroad Co. 590
Sprong v. The Boston and Albany Rail-
road Co.

30 4. That the plaintiff having taken this
2. And that it being probable that

train through his own fault or inat-
the jury were influenced by these

tention, his voluntary continuance
considerations, so submitted to them,

upon it, after being fully notified of
it was a proper case for a new trial.

the consequences, must be deemed

an election, on his part, to abide by
the regulation of the company,

3. The defendants owned and operated it was one lawful and proper to be
two tracks between Syracuse and made and to enforce.

Rochester, upon different routes,
one of which (the Auburn route)
was longer than the other, and upon
which forty-five cents

charged, for passenger fare, than
was charged upon the shorter route

(via Palmyra.) The plaintiff pur.
chased a ticket at Syracuse, for
Rochester, which had, upon the face

of it, the words " via Palmyra," pay-
ing therefor the lesser fare, and got

upon a train bound for Rochester,
by the Auburn route. Upon ex-
hibiting his ticket, the conductor
told him that he was on the wrong

train ; that he could not go to Roch-
ester on that train unless he paid 1. To constitute a defense to an action
forty-five cents more; and that the of ejectment on the ground that the
ticket would carry him to F. (the language and legal effect of a deed
next station,) and no further. The differs essentially from the intent
plaintiff said he expected to go of the parties, a case must be pre-
through on that train, and would sented which would induce a court
not pay any more. The conductor of equity to interpose and reform
thereupon marked the ticket, with the defective instrument; not that
his punch, and returned it to the it is absolutely necessary, in such a
plaintiff. He again came to the case, that a judgment reforming the
plaintiff and asked him if he was instrument should be pronounced,
going to pay the additional forty-five if the defendant is content to waive,
cents, and being answered in the or does not demand, such full relief.
negative, he told the plaintiff he For the judgment that he recover
must get off at F., and on arriving in the action is giving him the full
there, ordered the plaintiff to leave effect, so far as the title to the prem-
the train, and upon his refusal, put ises in controversy is concerned, of



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A report of a referee, directing that

a public street be opened through
property cannot be sustained; but
the court may order a sale of lots,

with a reserved lane or right of way,
common to the lots sold. Scott v.

1. In action by a father, to recover


damages for the seduction of his
daughter, evidence of a promise of

marriage, made by the defendant to

the daughter, previous to the seduc-

tion, is inadmissible. Whitney ,
1. The fact of res adjudicata is not to


be made out by inferences.
estoppel requires strict proof. A 2. If such evidence is offered in chief,
fact cannot be held to have been

by the plaintiff, and admitted as
adjudicated in a former suit, unless

general evidence in the cause, with-
it so expressly appears by the record,

out qualification or limitation, it is
or, at least, it is clearly shown by

cause for reversal.

evidence aliunde, that it was deter-
mined. Bissell v. Kellogg 617

3. The judge instructed the jury that
2. Where there is a trial by the court,

“if they found that the defendant

promised to marry the plaintiff's
the judge who tried the cause, being

daughter, before he had sexual in-
required, in settling the case, to

tercourse with her, they were at lib-
specify the facts found by him, and

erty to consider that, with other cir-
his conclusions of law, the facts thus

cumstances attending her seduction;
specified are conclusive upon the

and they might also regard it as
parties, in that case, if founded on

one of the circumstances of the
sufficient evidence; and there is no

case, in determining the damages to
reason why they should not be con-

be recovered by the plaintiff, not
sidered as res adjudicata for all pur-

for the purpose of giving damages
poses, the same as though contained

for a breach of promise of marriage,
in the original findings of the judge.

but as one of the circumstances at-

tending, and under which the seduc-
3. Where it appeared by the record tion of the daughter was effected."

of a former recovery, that the ques- The defendant's counsel excepted
tion whether a certain mortgage was to this instruction, and requested
executed upon a usurious contract the judge to instruct the jury that
was in issue in that case, and that the plaintiff was not entitled to re-
the fact of usury was found by the over any additional damages on
judge; it was held, in a subsequent account of the promise of marriage;
action, brought by the defendant in which request the judge refused.
the former suit and his privy in Held that the defendant was entitled

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