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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
ib note; which sale, and the represen-
tations that induced it, were made
for $800 and interest, payable to her that as there was no ground for the
sory note, the case does not show
that the note was negotiable, its
negotiability will not be presumed.
signee takes it subject to all defenses
of the maker against the payee;
whether it be due at the time of the
assignment or not; the same as the
holder of a negotiable instrument
does, who takes it after it has be
See ANSWER 3.
PRINCIPAL AND AGENT, 4 to 7.
Soe PARTITION, 8.
See ConsIGNOR AND CONSIGNER.
1. In an action against a railroad com-
pany, to recover damages of the
1. Where the defendant, at the time
of making a promissory note, was
care, which contributed to his death, him off the cars, as he was required
30 4. That the plaintiff having taken this
train through his own fault or inat-
tention, his voluntary continuance
upon it, after being fully notified of
the consequences, must be deemed
an election, on his part, to abide by
See REPORT OP REPEREB.
REFORMATION OF DEED.
A report of a referee, directing that
1. In action by a father, to recover
damages for the seduction of his
marriage, made by the defendant to
the daughter, previous to the seduc-
tion, is inadmissible. Whitney ,
by the plaintiff, and admitted as
general evidence in the cause, with-
out qualification or limitation, it is
cause for reversal.
3. The judge instructed the jury that
“if they found that the defendant
promised to marry the plaintiff's
daughter, before he had sexual in-
tercourse with her, they were at lib-
erty to consider that, with other cir-
cumstances attending her seduction;
and they might also regard it as
one of the circumstances of the
case, in determining the damages to
be recovered by the plaintiff, not
for the purpose of giving damages
for a breach of promise of marriage,
but as one of the circumstances at-
tending, and under which the seduc-
of a former recovery, that the ques- The defendant's counsel excepted