point runs nearly northeast and southwest, and the plaintiff's testator was driving northerly on the highway, which crosses the railroad at an angle of 40 degrees. On the westerly side of the highway, extending up to within nine feet of the southerly track, is a ledge of rocks, such as to make it impossible for a traveler going northward on the highway to see a train approaching from the west until he gets almost to the crossing. The testimony shows that a person standing in the highway 20 feet south of the south rail, looking westerly across the north end of the ledge of rocks, could see 159 feet of the track next west of the crossing, and one standing 15 feet south of the south rail could see 350 feet of the track next west of the crossing. From that point to a point more than 100 feet southerly of the southerly track, and for the greater part of the way to a point 300 feet southerly, no part of the tracks to the westward could be seen. A long freight train was passing over the crossing to the westward on the northerly track, and the plaintiff's testator, who was driving in a lumber wagon, stopped his horse about 100 feet southerly of the southerly track, and waited for it to go by. Soon after the last car had gone over the crossing, he started at a slow trot to go across. He was standing in his wagon, looking to the westward, but on account of the obstructions it was impossible for him to see the train approaching from that direction. The intervening ledge may have somewhat interfered with the passage of sound of the coming train, and there was doubtless noise from the receding freight cars; so that, while the evidence tends to show that he both looked and listened, he was evidently unaware of the approach of the express train from the west until his horse was on, or very near, the track. The jury might well have found that he was negligent in not waiting longer before starting after the freight train went by, so that he could more effectually use his ears in a place where his eyes could not avail him. On the other hand, there is much to excuse, if not to justify, his conduct. Very likely it was his first experience of the passage of a long train before him when he was about to cross a railroad. He may have supposed that he would hear the coming train if it was near. Waiting longer in that place would not have enabled him to see whether a train was coming. To have have stopped near enough to the track to be able to see along it for any considerable distance would have brought his horse so near as to expose him to great danger from the fright of the horse if a train should chance to come. Under the circumstances of this case we cannot say as a matter of law that he was negligent, but we are of opinion that it was for the jury to determine whether he was in the exercise of reasonable care. While the case of Fletcher v. Railroad Co., 149 Mass. 127, 21 N. E. 302, resembles this

in some particulars, in others it materially differs from it. There the plaintiff drove upon the track without excuse when his view of the adjacent track, on which he had reason to expect a passenger train at that hour, was cut off by the intervening cars of a receding freight train, which would have left him an unobstructed view before reaching the place of danger if he had waited half a minute for it to get away. The jury were permitted to find that the defendant was negligent in not taking other precautions than sounding the whistle and ringing the bell to warn travelers of the approach of trains. It is well settled in this commonwealth that the requirements of Pub. St. c. 112, §§ 163, 161, in regard to the erection of sign boards and the sounding the whistle and the ringing the bell of locomotive engines at crossings, are not exclusive of other provisions for the protection of the public where these are not sufficient to provide reasonably for their safety, and that it is the duty of a railroad corporation to erect gates or station a flagman at a crossing if the security of the public reasonably requires it, even though no request in regard to it has been made by the mayor and aldermen or selectmen, and no order by the county commissioners, under the provision of Id. § 166. Eaton v. Railroad Co., 129 Mass. 364, and cases cited. A similar rule of law prevails in other states. Richardson v. Railroad Co., 45 N. Y. 846; Railroad Co. v. Matthews, 36 N. J. Law, 531; Railroad Co. v. Boggs, 101 Ind. 522. Ordinarily, it is a question of fact for the jury to determine in each particular case whether the warnings imperatively required by the statute to protect the public at railroad crossings are sufficient for that purpose, or whether additional precautions for their safety are necessary. But, in order to authorize a jury to find negligence in not taking such additional precautions, there must be evidence beyond the mere fact that there is a public way crossed by a railroad at grade. There must be something in the configuration of the land, or in the construction of the railroad, or in the structures in the vicinity, or in the nature or amount of the travel on the highway, or in other conditions which renders the ringing the bell and the sounding the whistle inadequate properly to warn the public of danger. Evidence that daily 20 trains on a road and about as many vehicles on a highway passed over a place where the railroad crossed the highway at grade, but was in full view of the highway at any point within 150 feet of the crossing, and where the public authorities never required the establishment of a gate or flagman, has been held to be insufficient to warrant a finding that the railroad corporation was guilty of negligence in omitting to provide there such a safeguard. Com. v. Boston & W. R. Co., 101 Mass. 201. The crossing in the present case for persons traveling northward on the highway was

very dangerous. For a considerable distance before reaching the crossing one would be obliged to depend wholly on his sense of hearing to discover whether a train was approaching. There are very few horses that can safely be stopped within 15 or 20 feet of a railroad track to await the passage of an express train. One driving there before the accident was obliged to choose between the risk of driving across and being struck by the express train, whose approach he might fail to hear, and the risk of stopping to look so near the track as to expose him to great danger from the fright of his horse if an approaching train should be near. If this highway was a great thoroughfare, we think it clear that other precautions were needed. On the other hand, if there was but little travel over it, the ringing the bell and the sounding the whistle may have been all that was reasonably necessary. The bill of exceptions discloses nothing in regard to the amount of travel on the road, but it appears that the crossing was within a few feet of the railroad station in Richmond, and the jury, in the view which they took, had opportunities of judging from the appearance of the road and of the adjacent country how much the road was traveled. We cannot say as a matter of law that they erred in finding a gate or flagman to have been necessary. If it is deemed best that railroad corporations shall be free from obligation to maintain a gate or to station a flagman at any crossing unless ordered or requested so to do by the public authorities under the statutes, it will be easy for the legislature to pass a law to that effect. tions overruled.

Excep

L'HERBETTE v. PITTSFIELD NAT. BANK.

(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 17, 1894.)

ACTION AGAINST BANK RECOVERY OF DEPOSIT— DEFENSES-EMBEZZLEMENT BY CASHIER-ULTRA

VIRES CONTRACT-EVIDENCE-DEPOSITION.

1. Where money is deposited with the cashier of a bank under an agreement that it shall be invested by the bank in bonds and stocks, the bank is liable for the return of the money, no investment having been made, though the agreement for its investment by the bank was ultra vires

2. Nor does the fact that the cashier embezzled the money affect the bank's liability.

3. An envelope, on which the sums paid into and drawn out of a bank by a depositor are entered by the cashier, is admissible against the bank to show the state of his account.

4. On the question whether a transaction with the cashier of a bank was in his individual or official capacity, evidence of similar transactions is admissible.

5. Where a deponent, who is outside of the state, attaches to his deposition copies of papers instead of the originals, the court, in its discretion, may allow them to be read.

6. Testimony that the cashier of a bank failed to enter deposits on its books is not admissible as against the depositor to show that

the deposits were made with the cashier in his individual capacity.

7. The erroneous exclusion of evidence is rendered harmless by a finding on the point it tended to prove in favor of the party offering it. 8. Where a deposit in a bank is made with the cashier, who fails to make an entry thereof on the books of the bank, the bookkeeper cannot testify, from knowledge acquired merely from its books, whether the depositor had any account with the bank.

Exceptions from superior court, Berkshire county; Elisha B. Maynard, Judge.

Action by Camille L'Herbette against the Pittsfield National Bank. There was judg ment for plaintiff, and defendant excepts. Exceptions overruled.

John F. Noxon and John C. Crosby, for plaintiff. Pingree, Dawes, Jr., & Burke, for defendant.

An

ALLEN, J. At the trial the issue was clearly defined whether the money was paid to Francis, the defendant's cashier, in his individual capacity, to be used by him individually for the plaintiff, or whether it was paid to him as cashier of the bank, and as and for a deposit in the bank. According to the findings of the jury, the plaintiff deposited his money with Francis acting as cashier of the defendant bank, and Francis received the same acting in that capacity, and not in his individual capacity. agreement was made that the money should draw interest, but there was no usage of the bank authorizing the cashier to allow interest on deposits, and the jury allowed none in their verdict. The defendant bank did not actually receive the money from the cashier. The deposits were upon the distinct understanding and agreement with Francis as cashier that the same should be invested by the bank in stocks and bonds for the plaintiff. The scope of the last finding is not clearly defined, but it has not been assumed by counsel on either side that the money was to be invested by the bank at its mere discretion, and without previous directions from or assent of the plaintiff. The argument for the defendant is that national banks have no authority to deal in stocks or bonds, or to act as brokers or agents for others in the purchase of them; and also that an agreement by the cashier that deposits should draw interest was beyond his authority, and not binding upon the defendant. Let these positions of the defendant be assumed, without discussion, to be correct. Assume also that the plaintiff was bound to take notice of the limitation of the power of the bank and of the authority of the cashier in these respects. It follows certainly that he could not enforce these agreements, but it does not follow that he could not recover back his money without interest, no investment of it having been made for him by the bank or by the cashier. There is no doubt that the cashier was a proper officer of the bank to receive deposits

of money at the bank in its behalf (Morse, Banks, § 161), and there was nothing criminal or immoral in either of the agreements made by him. If those agreements were invalid because ultra vires or unauthorized, there certainly would be no reason why the bank should not be held to refund to the plaintiff his money on demand, provided the bank had actually received it. The fact of the cashier's making the invalid agreements at the time of receiving the deposits would not entitle the bank to retain the money for its own use, or debar the plaintiff from recovering it back. Nor does the fact that the money, by reason of the cashier's misappropriation of it, did not actually come to the use of the bank, make any difference. The dealing between the plaintiff and the cashier was at the bank, and it was on the footing that in receiving the money the cashler represented the bank. The money was paid and received as and for money deposited in the bank. Suppose that no agreement as to the future investment of the money had been made, it can hardly be doubted that the money paid at the bank to the cashier as and for a deposit in the bank, and accepted by him as such, would be treated as having been received by the bank, even though the cashier should embezzle it. The agreement was that the money should be invested by the bank, not that it should be invested by Francis. The making of this agreement does not impair the obligation which rests upon the bank by reason of the deposit of the money with its cashier. The bank is bound because its cashier, assuming to act in its behalf, received the plaintiff's money as money deposited in the bank; and the fact of his making invalid agreements, if his agree. ments were invalid, that the bank should at some time in the future invest the money for the plaintiff, and meanwhile should allow him interest upon it, does not have the effect to exonerate the bank from its liability to refund the money, without interest, to the plaintiff on demand, no investment thereof having been made by it. White v. Bank, 22 Pick. 181; Atlas Bank v. Nahant Bank, 3 Metc. (Mass.) 581, 585-588; Dill v. Wareham, 7 Metc. (Mass.) 438; Morville v. Society, 123 Mass. 129, 137, 138; Davis v. Railroad, 131 Mass. 258, 275; Bank v. Townsend, 139 U. S. 67, 74, 11 Sup. Ct. 496; Spring Co. v. Knowlton, 103 .U. S. 49; Hitchcock v. Galveston, 96 U. S. 341, 350; Bank v. Gove, 57 N. Y. 597, 601; Ziegler v. Bank, 93 Pa. St. 393; Bank v. Brooks, 3 Browne, Bank Cas. 387; Thompson v. Bell, 10 Exch. 10.

The defendant excepted to the statement by the court that, "if the directors, through inattention or otherwise, suffered the cashier to pursue and practice a certain line of conduct for a considerable period of time, without objection, the bank will be bound by his acts within that line of conduct." It is not necessary for us to hold that this would be v.3.E no.10-24

correct as a universal proposition. The defendant's argument upon it is that the bank would not be bound because of the cashier's agreement as to investing the money. And the only significance of the instruction was that the bank would be bound, if the directors suffered the cashier to receive money from depositors, with an agreement that the same should be invested by the bank in stocks and bonds. The instruction must be considered with reference to the aspect of the case to which it was applicable. So considered, it was right. Beyond this we need not go until the question actually arises.

The defendant also relies on certain exceptions in matters of evidence:

1. As to the envelope. According to the testimony of the plaintiff and his daughter, this was used and delivered to the plaintiff by the cashier as a statement of the plaintiff's account in the bank in like manner as an ordinary bank book is generally used and delivered. Money was sent by the plaintiff at different times, with slips or tickets, to the defendant's bank, in substance like ordinary slips or tickets accompanying deposits; and the money was withdrawn on orders addressed to the defendant's bank, resembling ordinary checks. The sums so paid in and so withdrawn were entered by the cashier on this envelope, and the entry in one instance was verified by his initials, thus: "E. S. F., Cas." There was a statement that interest was to be paid at the rate of 4 per cent., but no minute of the agree ment to invest the money in the future. This envelope was competent as the statement by the proper officer of the bank, made at the time of actual transactions, of the sums received and paid out. There can be no doubt that an ordinary bank book is competent against a bank for the purpose of showing the state of a depositor's account. This envelope was admissible in like manner. Morse, Banks, § 103.

2. On the question whether the plaintiff was dealing with Francis as an individual or with him as an officer of the defendant bank, the former transactions were competent, being similar in kind.

3. Although the deponent Parmly, who was out of the state, annexed copies, instead of the original, of papers to his deposition, the court, in its discretion, might allow them to be read. Binney v. Russell, 109 Mass. 55; Williamson v. Railroad Co., 144 Mass. 148, 10 N. E. 790.

4. Exhibit 19 was competent as tending to show that the plaintiff's former dealings were with the defendant bank. According to Jackson's testimony, his firm bought the shares in question for the defendant bank, taking the certificate in the plaintiff's name; and his firm had had another account with the defendant bank for several years.

5. The testimony of Willis D. Smith was competent as tending to show not only that the defendant was in the habit of acting for its customers in the purchase of stocks

through brokers in Boston and New York, but also that the former dealings of the plaintiff were with the bank, and that the bank kept on its books accounts with the two firms of brokers who on former occasions had bought for the bank the shares, for which, certificates were, by its direction, taken in the plaintiff's name.

6. Testimony to show that the defendant did not enter on its books the plaintiff's name as a depositor had no legitimate tendency to show that the plaintiff's transactions were not with the bank. This would, at most, be an implied denial by the defendant of its liability, in the absence of the plaintiff, who cannot be affected by its omission to make entries on its books. Sanborn v. Insurance Co., 16 Gray, 448, 455; Morse v. Potter, 4 Gray, 292, 293. It is now contended that this evidence was competent as tending to show that the bank never received the benefit of the plaintiff's money. Whether this was so or not. the jury found this fact in favor of the defendant, and no exception can now be sustained on this ground to the exclusion of the evidence.

7. The question to the witness Charles C. Francis, who had been a bookkeeper for the defendant, "whether or not to his knowledge the plaintiff had any account with the bank in 1892 or 1893," was rightly excluded. His knowledge was only that which was shown by the books. There was no suggestion that he knew anything about the transactions with the cashier. He was merely a bookkeeper, so far as appears. The defendant made a general request for a ruling that on the whole evidence the plaintiff could not recover. This ruling was rightly refused. The evidence was suficient to warrant the verdict for the plaintiff. On an examination of the whole case, the trial appears to have been well conducted, and we find no error in any of the rulings which were excepted to. Exceptions overruled.

MARSTALLER v. MILLS et al. (Court of Appeals of New York. Oct. 30, 1894.)

CLAIM AGAINST CORPORATION-INJURIES TO PLAINTIFF'S SON-EFFECT OF DISSOLUTION ACTION AGAINST DIRECTORS.

1. Under Laws 1892, c. 691, § 5, providing that the dissolution of a business corporation shall not impair any remedy against it or its officers for liabilities previously incurred, a right of action against a corporation for injuries to one's son, resulting in a loss of his services, survives the dissolution of the corporation.

2. One having a cause of action against a corporation for loss of the services of his son, injured while in the employment of the corporation, is a "creditor" thereof, within the meaning of Laws 1892, c. 687, § 30, providing that the directors of a corporation shall, on its dissolution, be trustees for its creditors, with power to settle the corporate affairs.

Appeal from supreme court, general term, second department.

Action by Frederick Marstaller against Ogden Mills and others. From a judgment of the general term affirming an order entered for plaintiff, defendants appeal. Affirmed.

Wm. John Warburton, for appellants. James C. Cropsey, for respondent.

GRAY, J. Plaintiff brings this action against the defendants, as the trustees of the creditors and stockholders of the Mergentha ler Printing Company, a domestic business corporation, to recover for the loss of services of his son, who was injured while in the employment of the company. Subsequently to the time when he received these injuries, that corporation was dissolved, in the course of proceedings for its voluntary dissolution; and the sole question which is presented by the demurrer to the complaint is whether the cause of action survived the dissolution, and is maintainable against the defendants. If provision has not been made in the statute law of this state whereby such a cause of action is preserved from abatement, the common-law rule would undoubtedly be in force, and the plaintiff's remedy would be gone. We think that such is not the case, and that, upon a fair reading and by a reasonably liberal construction of certain statutory provisions, the plaintiff retained his remedy in the form he has adopted. In the "Business Corporations Law" (Laws 1892, c. 691, § 5) is contained the following section: "Payment of Capital Stock.-One-half of the capital stock of every such corporation shall be paid in within one year from its incorporation, or the corporation shall be dissolved. * The dissolution of any such corporation for any cause shall not take away or impair any remedy against it, its stockholders or offcers, for any liabilities incurred previous to its dissolution." The last sentence of this section was taken, with a slight change of verbiage, from the statute as it was enacted in 1875 (Laws 1875, c. 611, § 38), where it stood as a distinct section. Although it was inserted in connection with a provision made for the event of a failure to pay in the capital stock, its language is too comprehensive to warrant us in attributing any other legislative intent than what the plain reading conveys. Inartificial as may be the insertion of this clause in the section, it cannot be qualified by what precedes, and it reaches beyond the contingency of the particular dissolution previously referred to, and applies to any that is, to every-case of corporate dissolution.

The plaintiff's cause of action arose upon a wrong having been done to his rights or interests, for which the corporation could be held liable; and if it has survived, by force of the statutory provisions mentioned, we think he is entitled to be classed with the "creditors," for whom, in another provision, the directors of the corporation become trustees. It was re-enacted in the "General Cor

poration Law" (Laws 1892, c. 687), as section 30, and reads: "Upon the dissolution of any corporation created, or to be created, and unless other persons shall be appointed by the legislature, or by some court of competent authority, the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the corporation | dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses." We think that the legislature intended by this provi sion that the corporate property should be held and administered upon by the directors, where other persons were not appointed, for the purpose of its distribution in the settlement of all existing claims upon it; whether the claimant was a creditor in the legal sense, or not. The term "creditor" is broad enough, in view of the evident purpose of this act and of the other provisions we have mentioned, to include those persons to whom the corporation was under any enforceable obligation, as well as those to whom it was indebted. If the general investment of the directors with the power "to settle the af fairs of the corporation" were to be regard. ed as qualified, and as limited, with respect to the payment of claims against it, to those which constituted "debts," in the strict legal sense of the word, the legislature would be chargeable with a very grave inconsistency. It would have expressly retained all the remedies against a corporation for any liabilities incurred previous to its dissolution, while limiting the power of its trustees, upon a voluntary dissolution, to the consideration and payment of those liabilities only which arose upon contract. This would be a harsh construction, and one which does not seem in harmony with the general scheme of legislation. If this had been the case of an individual wrongdoer, his death would not have caused the abatement of the cause of action for the wrong done by him to the property rights or interests of the plaintiff. That case has been expressly provided for, and the action would be maintainable against his executors or administrators. 2 Rev. St. 447, §§ 1, 2; and see Cregin v. Railroad Co., 75 N. Y. 192. We do not think a discrimination has been intended in favor of corpora tions. The language of the section admits of the criticism that it fails to express clearly the intention that a liability upon tort is to be considered and met by the trustees; but, reading together section 5 of the business corporations law and section 30 of the general corporation law, the construction is permitted that all persons who have claims against the corporation, upon which it might be liable, should be regarded as actual or possible creditors. The interlocutory judg

ment should be affirmed, with costs, with leave, however, to the appellants to answer the complaint within 20 days after service of the notice of the entry of the order upon our remittitur, on payment of costs. All concur. Judgment accordingly.

O'BRIEN et al. v. FITZGERALD et al. (Court of Appeals of New York. Oct. 23, 1894.) CHARACTER OF PROCEEDING-LEGAL OR EQUITABLE ACTION-HOW DETERMINED.

The formal demand for relief with which the complaint concludes is not decisive of the legal or equitable character of the action; but where the complaint sets forth an ambiguous state of facts, such as may support equally an action at law or in equity, its character will be determined by reference to the relief demanded.

Appeal from supreme court, general term, first department.

Action by Miles M. O'Brien and another, as receivers, against Lawrence J. Fitzgerald and others, impleaded, to recover damages sustained by reason of the negligence of defendants in the management of the Madison Square Bank. From a judgment of the general term (29 N. Y. Supp. 975) affirming an order overruling the demurrer of defendant Fitzgerald, he appeals. Reversed.

Franklin Pierce, for appellant. Louis Marshall, for respondents.

FINCH, J. On its face and in its form this is an action at law to recover damages for negligence. The corporation, represented by its duly-appointed receivers, sues individuals, who were its directors, for such neglect or wrong in the performance of their duties as resulted in large losses, and demands a money judgment for the damages sustained. There is no suggestion that any equitable relief is essential to a full and complete redress, and no facts are stated which indicate a need of such intervention. It is not averred that a discovery is requisite to the completeness of the remedy. On the contrary, the acts of negligence are asserted as fully known, and capable of proof. It is not alleged that an accounting is necessary to ascertain the damages, but these are claimed as a definite and fixed sum, resulting directly from the negligent acts of the defendants. It is not asserted that such defendants are severally liable for separate and personal misconduct, and in separate and different amounts, although that is a reasonable inference from the facts stated in the complaint, but it demands judgment against all and against each for the full amount claimed. The circumstance led to the interposition of a demurrer to the complaint, based upon the ground that different causes of action affecting different defendants had been improperly joined. It is not denied that the demurrer is well taken if the action is to be