the floor on the sergeant's approach. Held, that the evidence was suffi cient to sustain the charge that he was off his post, sitting down, and having a can of beer in the gate box. Id. 22. An assessment levied for a sewer under Laws 1887, chap. 136, § 72, showed a list of names, including plaintiff's, and opposite thereto in a column the amount of the assessments. It nowhere described the property. Held, that this was a mere personal assessment and void under the statute and gave the receiver of taxes no authority to sell plaintiff's land. Hanson v. Town et al. (Sup. Ct.), 665. 23. Chapter 572, Laws 1886, requiring notice of intention to bring action for personal injuries, and of the time and place of the accident, to be served on the corporation counsel, applies to the city of Buffalo, although the charter of that city requires notice of the claim to be presented to the common council, and provides that no action shall be commenced until forty days after such claim is presented. Curry v. City of Buffalo (Sup. Ct.), 745. 24. The presentation to the common council of such claim, stating the time and place of accident, in pursuance of the charter requirement, is not a substantial compliance with the requirement of chap. 572, Laws 1886. Id. 25: Consent of the city of Utica to the construction of a street railway was given, on condition that it should replace and keep in good repair the pavement between and for two feet each side of its tracks. Subsequently the common council resolved to pave the street with asphalt, which was accordingly done, and one-third of the expense thereof levied upon the city at large and the balance on the adjacent owners. By the charter, the common council was "authorized to require all railroad companies operating street railroads in any of the streets of the city to repave between their tracks, and at least two feet in width on each outside thereof, whenever the common council shall deem such repavement necessary.' Held, that this was not mandatory, but left it discretionary with the common council as to compelling the railroad to repair, and that a private owner of property fronting upon the street had no vested right or claim de jure that the railroad company should pave, or bear the expense of paving, any portion of the street, and that the assessment was not illegal. Gilmore v. City of Utica (Ct. App.), 880. وو 26. An abutting owner has no more right, vested or de jure, to demand that the railway company shall repair a worn-out pavement, than it has to demand that any one else who extensively used the street with carriages and wagons should do so. Id. 27. Even if the railroad was under some obligation to improve the pavement between and about its tracks, the failure of the city to enforce that liability on its part did not render the assessment illegal. Id. 28. The board of assessors were authorized by chap. 729, Laws 1872, to ascertain the expense of paving Eighth avenue and assess the same upon the property benefited. They advertised twice in the official journal that an assessment had been completed and filed for examination by persons interested for regulating, setting curb and gutter and flagging the Eighth avenue," and that "all persons whose interests are affected by the above-named assessments, and who are opposed to the same, were requested to present their objections at the assessors' office within thirty days from date. Held, that this notice applied to the assessment for benefits in consequence of the improvement and not to the damages or loss sustained. People ex rel. Heiser v. Gilon et al. (Ct. App.), 890. 29. The board assessed the amount of damages to the real estate represented by relator, when he was not present, at $5,000. Held, that they failed to give him the proper notice imposed by the act of 1872, and that no legal determination of such damages has yet been made, and the filing with the comptroller of what purports to be an award, without notice to the party, does not satisfy the requirements of the statute. Id. 30. The fact that the assessors have made and signed an award and filed it in another office does deprive them of the means of making a return to the writ, but does not affect the power of the court to review their action, when it can get the record before it from the officer in whose custody it is. Id. 31. Whether the reason for the absence of a police officer from duty, or the nature of the malady which incapacitated him physically, were such as to excuse him from severe punishment, is a matter for the determination of the police commissioners, and where they find him guilty after a trial upon the charges and dismiss him from the force upon undisputed evidence, there is no case for interference by the appellate court with the conclusions of the commissioners. People ex rel. Carrigan v. Board of Police (Ct. App.), 900. 32. Relator's bid for work was the next to the highest. The common council awarded him the contract over the veto of the mayor, who afterwards refused to sign a warrant for the work done, although the claim had been audited and allowed by the common council. Held, that as it appeared that relator's bid was not the lowest, and there was no objection that the lower bids were not regular or made by responsible parties, the action of the common council was arbitrary, and, under the circumstances, the contract was illegal and void under the charter. People ex rel. Coughlin v. Gleason (Ct. App.), 903. 33. An arbitrary determination by the common council to accept the highest bid, without any facts justifying it, cannot have the effect of a judicial determination. Id. 34. Section 441 of the consolidation act is not antagonistic to the provisions of § 48, and was not intended to restrict the power of the fire commissioners to appoint and remove employees who are not protected by the exceptions contained in the latter section. People ex rel. Hicinbotham v. Purroy et al. (Sup. Ct.), 934. 35. Relator, an inspector of buildings, was served with charges and specifications, and notice to appear before the board of fire commissioners. Prior to the time specified in the notice, at a meeting at which two commissioners were present, an order was made removing relator from office. Held, that they had power to do so, and that there was no irregularity in the proceedings. Id. 36. The provision of 3 of chap. 163, Laws 1890, requiring the oath by policemen as to non-interest in the manufacture or sale of liquor to be taken within thirty days after the passage of the act, is directory merely, and not mandatory, and such oath may be taken within a reasonable time after the expiration of the thirty days. Matter of Taylor (Sup. Ct.), 987. 37. Relator left New York for his vacation on May 11th, and had no knowl edge of the provisions of the law until his return on the 24th, and offered to take the oath on the 26th. He was removed on the 28th. The thirty days expired May 22d. Held, that relator should have been allowed to take the oath, and that his removal was improper. Id. See CERTIORARI, 1-3; EMINENT DOMAIN, 2, 3. NEGLIGENCE. 1. While the statute requiring a person driving upon a roadway to turn to the right of the center of the road provides a penalty for a failure to do so, it does not provide that he shall be liable for all damage which may hap pen while he is on the wrong side. While it may be legal negligence for him to be there, his liability must depend on the rules of law applicable to cases of negligence. Newman v. Ernst (Supr. Ct. Buff.), 1. 2. There was a manhole in a sidewalk with an iron door three feet square. The accident occurred at 8 P. M. Plaintiff was going quickly for a doctor. He had never passed over this spot. It was not raining or snowing. The streets were lighted by electricity. The "Casino" was on the corner opposite the defendants' store, and this "Casino was in operation. The plaintiff testified "it was dark there where I was.' The manhole door was open and nearly at right angles with the sidewalk. The plaintiff struck this and went completely over it. Held, that a nonsuit was improper and the question of contributory negligence was for the jury. Wells v. Sibley et al. (Sup. Ct.), 40. 3. A lessee of a public pier in the city of New York who allows a hole to remain therein for a long period of time is guilty of negligence and is liable for injuries caused thereby to persons passing over the pier. Id. 4. A public pier in the city of New York is a part of the public streets and the public have a right to enter upon it in the same manner as upon the streets and cannot be considered trespassers in so doing. Id. 5. Plaintiff, who was eighty years old, deaf, but not near-sighted, testified that if the car was within half a block she could have seen it; that it was her habit to look up and down the street before crossing, but she would not state positively that she did so on the occasion of the accident. Another witness testified that plaintiff did so look. Held, sufficient to justify a finding that she used reasonable care in crossing. Cowan v. Third Ave. R. R. Co. (Sup. Ct.), 145. 6. Where a wife has been accustomed to receive compensation for work done for her husband outside of her household duties, the loss of such earnings may be taken into consideration by the jury in determining the amount of damages in an action for injuries caused by negligence. There is no distinction between services performed for a husband or another party where there is a distinct agreement for compensation. Blaechinska v. Howard Mission & Home (Sup. Ct.), 159. 7. An allowance of such damages is authorized under an averment of the complaint that plaintiff was not only prevented from attending to household duties but from engaging in other employment. Id. 8. Proof that a plate or clip fell from an elevated railroad and injured plaintiff, in the absence of explanation, raises a presumption of negligence on the part of the railroad. Volkmar v. Manhattan R. Co. (N. Y. Supr. Ct.), 172. 9. Such presumption is overcome by proof of care used in the construction of the road to guard against such an occurrence; that the plate or clip had been secured in the best method in known practical use, and could only have come off by the breaking of a bolt, which was not discoverable, notwithstanding the exercise of great care, and in the absence of further proof of specific negligence a verdict is properly directed for defendant. Id. 10. One who contracts to do blasting for the city is not relieved from responsibility to persons injured thereby, although he has sub-let the contract to another, by whose negligence, such injury was caused. Buddin v. Fortunato (N. Y. C. P.), 278. 11. A lessee of premises may recover for injuries thereto where the landlord is not bound by covenant to repair, and it appears that the tenant was obliged to make repairs to protect his property and make the building tenantable. 12. Id. A recovery cannot be had for injuries to a wagon left with plaintiff to be repaired, as he is only a bailee for hire as to such property and not liable to the owner for injury caused by the wrongdoing of another. Id. 13. Plaintiff's wagon was broken by defendant's alleged negligence. After the accident defendant told plaintiff to have it repaired and he would pay the cost. Held, a substantial confession of negligence and agreement as to the measure of damage. Dunn v. O'Keefe (Sup. Ct.), 311. 14. Plaintiff's testator was a repairer at work in defendant's yard on a track which was used to store damaged cars. Some other cars were backed down on this track and the deceased was caught between cars which he was repairing and killed. Defendant had not promulgated any rules to protect repairers while at work but the yard master had done so and a red flag was the sign of danger. Such a flag had been put up in this case by the repairers upon the yard master's direction; it was understood by the brakemen and engineers. Half an hour before the accident the flag was not in place but was lying upon the ground. The yard master called the attention of one of the repairers to this fact. The man picked up the flag and said he would put it up. At the time of the accident there was no flag up. There was evidence that such a flag was a sign of danger to moving trains on some roads; on others other colors were used to designate the presence of repairers in and under cars. Held, that the question of negligence was for the jury. Abel v. D. & H. C. Co. (Sup. Ct.), 356. 15. Plaintiff, who was a conductor on defendant's road, and had been acquainted with the tracks in the yard at Watertown, while his cars were being switched, stepped from the train, and without looking west, walked on or near a parallel track and stood there until struck by an engine backing from the west. He gave no excuse for so doing, except that he was watching a brakeman who was running to throw the switch. Held, that the evidence not only failed to show that plaintiff was free from contributory negligence, but showed gross and inexcusable negligence which resulted in the injury, and that plaintiff was properly nonsuited. 1edmond v. R., W. & O. R. R. Co. (Sup. Ct.), 366. 16. In an action to recover damages for the death of plaintiff's intestate, it was shown that he was run over by one of defendant's cars, and was taken to a hospital, where his arm was amputated, and that he lived for twenty days. No evidence was given that the injuries were sufficient to cause death or require amputation. The only witness relied on to prove that death was caused by the injuries sustained by the accident was the physician who made the post mortem examination, and who testified that the cause of death was exhaustion and acute pleurisy following the amputation, but he did not account, in any way, for the origin of the pleurisy. Held, that there was no sufficient proof that the death was the legitimate result of the negligence of defendant's driver, and that the complaint was properly dismissed. Schoen v. D. D., E. B. & B. R. R. Co. (N. Y. Supr. Ct.), 400. 17. Plaintiff was injured by the falling of a large stone or marble slab from the upper fire escape of premises owned by defendant. The building was a tenement-house, but the apartment in front of which the stone lay had been vacant for eight days, and defendant had notice of the position of the stone, which projected over the opening in the fire escape. The housekeeper of the building had seen the stone in the same position for over a year. Held, that, under the circumstances, the court properly denied the motions to dismiss the complaint, or to direct a verdict for defendant. Schachne v. Barnett (N. Y. Supr. Ct.), 401. 18. The owner of premises who keeps his property in a reasonably safe condition is not liable to passers by on the street for injuries caused by the fence being blown against them by a storm of unusual severity. He is not called upon to construct a fence which would withstand a storm which unroofed houses and did like damage. Norling v. Allee (City Ct. B'klyn), 412. 19. Where the title to the premises is held by the defendants as executors and trustees under a will they are not liable in their representative capacity for their negligent acts; their liability, if any, is personal. Id. 20. Defendant was the lessee of promises in New York as a stable and had a yearly contract with one M. to remove the manure, which he took from a pit in the sidewalk. Plaintiff was injured by falling into the pit while it was open for the removal of the manure. Held, that the company was bound to see that the sidewalk was safe while the hole was open and was liable for the injury. Hughes v. Orange County Milk Ass'n (Sup. Ct.), 468. 21. Plaintiff was earning $3.50 a day before the accident. In consequence of the injury he lost his employment, is greatly impaired in health and his physician fixes eight years as his limit of life. Held, that a verdict of $4,680 was not excessive. Id. 22. Plaintiff, with others, boarded defendant's train at Peekskill, passed through the train and found no seats, and at the suggestion of the conductor that another car would be put on, alighted from the train and proceeded toward the forward end. The engine, with a portion of the train, ran ahead to take on the empty car. Plaintiff and her friends boarded the platform of the stationary portion of the train to await the connection with the empty car, and as the cars came together her friends passed into it, and she attempting to follow fell between the cars, which had separated by the failure of the drawheads to catch and complete the coupling. There was evidence that the conductor had called "all aboard,' but this was denied by the servants of defendants. Held, that the conclusion of the jury was permitted that the circumstances enabled the passengers to understand (unless they saw something to the contrary) that the car was ready for them to enter it. Lent v. N. Y. C. & H. R. R. R. Co. (Ct. App.), 538. 23. The call of the conductor may have been treated as an invitation to do so, and as it was given prematurely or before it was entirely safe to do so, it was the fault of defendant's employee, which justified the imputation of negligence against the defendant, and plaintiff in proceeding to pass into the car was not chargeable with negligence, unless she saw the gap between the cars. Id. 24. There was no error in the refusal of the court to charge, as requested, that plaintiff was bound to wa't in the car, where she was in a safe place, until the coupling was complete. Id. 25. Plaintiff's intestate desiring to visit a domestic in defendant's building entered the elevator used to convey servants, baggage, etc. The elevator had a slide which was left open and there was also an opening in the cage," or outer screen just below the second floor. Intestate fell or fainted and rolled through the slide and opening and was found dead at the bottom of the elevator shaft. Plaintiff's witness testified that she caught at the clothing of deceased in an effort to save her. Held, that no facts were disclosed which would authorize a finding of negligence on defendant's part and that a dismissal of the complaint was properly granted. Egan v. Berkshire Apartm nt Ass'n (N. Y. C. P.), 545. 26. Plaintiff, after looking for approaching trains and waiting for a train to pass, saw the gate go up and attempted to cross the track, but was shut in by the lowering of the gate on the other side and was struck by a train. Held, that it was a question for the jury whether he exercised due care at the time of the accident. Kane v. N. Y., N. H. & II. R. R. Co. (Sup. Ct.), 741. 27. Plaintiff's intestate endeavored to cross defendant's tracks to the platform from which she was to take a train, although she saw a train approaching and was warned by her companions not to do so. She slipped and fell when the train was fifty or sixty feet from her and was struck and killed by it before she could recover herself. Held, that she was guilty of contributory negligence and that no recovery could be had. Collins v. Long Island R. R. Co. (City Ct. B’klyn), 973. See Appeal, 13; LANDLORD AND TENANT; MASTER AND SERVANT, 1, 2, 4–10, 13-19; MUNICIPAL CORPORATIONS, 6, 10-13, 23, 24. NEGOTIABLE PAPER. See BILLS AND NOTES. NEW TRIAL. 1. Where neither the case nor the order denying the motion contains any statement of the grounds upon which a motion for a new trial upon the minutes is made, the appellate court should not be asked to conjecture upon which of the several grounds possible the motion was made. Iamlin v. Young (Sup. Ct.), 55. 2. The court is not obliged to grant a new trial simply because both parties. move for one, when the motions are separately made and neither party consents that the motion made by the other should be granted. Schlessinger et al. v. Springfield F. & M. Ins. Co. (Sup. Ct.), 169. See APPEAL, 2. NEW YORK CITY. See INTEREST, 1-5; MUNICIPAL CORPORATIONS, 1, 2, 5-8, 19-21, 28-31, 34-37; NEGLIGENCE, 3, 4. NONSUIT. See MONEY HAD, ETC., 1; Negligence, 2. |