Mechanics' Bank v. Straiton. drawer of a bill or maker of a note, must be regarded as indicating his intentions that the paper shall be negotiable. By naming the persons to whose order the instrument is payable, the maker manifests his intention to limit its negotiability by imposing the condition of indersement upon its first transfer. But no such intention is indicated by the designation of a fictitious or impersonal payee, for indorsement under such circumstances is manifestly impossible; and words of negotiability, when used in connection with such designations, are capable of no reasonable interpretation except as expressive of an intention that the bill shall be negotiable without indorsement,―i. e., in the same manner as if it had been made payable to bearer. It was not, before the Code, necessary for the holder of an instrument payable to bearer, to allege or prove in an action against the maker the transfers through which he derived hist title (2 Greenl. on Ev. § 161, and cases there cited; 3 Phill. on Ev. 4 Am. ed. 191); and it certainly is not now. The engagement is to pay to the bearer; and that the plaintiff is such is one of the material elements of his cause of action. The fact must, therefore, be stated in his complaint, and its statement will be a sufficient allegation of his title; for it is the fact, and not evidence of the fact, which is required to be pleaded. It is not only stated in the complaint in this action that the plaintiff is the holder and owner of the check, but also that it was transferred and delivered to him for a valuable consideration, and that he became its owner and holder by virtue of that transfer and delivery. This cannot be true unless the drawer of the check transferred and delivered it directly to the plaintiff, or to some other person by or through whom it was transferred to the plaintiff; and this averment, if an allegation of a transfer and delivery by the drawer is necessary, is sufficient on demurrer, within the cases of People ex rel. Crane v. Ryder, 12 N. Y. (2 Kern.) 433, and Prindle v. Caruthers, 15 Id. 425. The judgment should be affirmed. All the judges concurred. Judgment affirmed, with costs. Melvin v. Wood. MELVIN v. WOOD. September, 1867. A bill of particulars annexed to the complaint forms part of it, and is amendable accordingly. A referee has power, on the trial of the issues, to allow a new bill of particulars to be substituted for that annexed to the complaint. Austin Melvin and others sued James Wood and others, in the supreme court, to recover a balance of account. The account included charges for goods sold and moneys advanced by plaintiffs to defendants, and credits for proceeds of sales on commission, damages for injured goods, interest, &c. The plaintiffs annexed to the complaint a bill of particulars or copy of the account. The referee allowed them to amend this upon the trial, by substituting a new bill of particulars. He also refused to receive in evidence the defendants' books when offered on their own behalf. Judgment was given for plaintiffs, and defendants appealed. John Graham, for defendants, appellants;-Cited Buffalo City Bank v. Howard, 35 N. Y. 500; Code, §§ 168, 169, 173; Halsey v. Sinsebaugh, 15 N. Y. 485; Guy v. Mead, 22 Id. 462 ; Barker v. N. Y. Central R. R. Co., 24 Id. 599; Marcly v. Shults, 29 Id. 346; 5 Wend. 301; 1 A. K. Man. 188. John H. Reynolds, for plaintiffs, respondents. BY THE COURT.-DAVIES, Ch. J.-Upon the facts found by the learned referee, the judgment in favor of the plaintiffs for the amount thereof was clearly correct, and must stand, if no errors were committed upon the trial. This I understand to be conceded by the learned counsel for the appellants, and he therefore proceeds in his brief to point out the several erroneous rulings which, in his opinion, he thinks the referee made upon the trial. [After disposing of an unimportant exception to evidence, the learned judge proceeded as follows:] 2. It is objected that the referee erred in allowing the plaintiffs Melvin v. Wood. to amend their bill of particulars. To the complaint was annexed, and served therewith, an account of the defendants with the plaintiffs, appropriately designated as a bill of particulars. It formed a part of the pleadings in the action. Upon the trial, the counsel for the defendant Wood moved for leave to amend his answer, so as to conform the second and third heads of the defense, and particularly the counter-claims, to the testimony already given, and particularly to the testimony of Samuel Barker. The referee decided to allow the amendments to the answer of the defendant Wood, as proposed by his counsel, and thereupon the same was amended accordingly. The plaintiffs' counsel then moved for leave to amend the complaint by substituting, in the place of the original bill of particulars, a new bill of items filed with the referee, to which the counsel for the defendant Wood objected; and the referee overruled the objection, and allowed the amendment to the complaint; and to this decision the counsel for the defendant Wood then and there excepted. Sections 169 and 173 of the Code fully authorized the referee to amend the pleadings of the respective parties in this action, and we do not regard his rulings in this respect open to review in this court. It was a matter resting in the discretion of the referee, and we think it was properly exercised in the present instance. We think it hardly lies with the defendant to object that the same favor was allowed to the plaintiff which he asked for and was accorded to himself, particularly as the very amendments to his pleadings, which he made by leave of the referee, probably necessitated and called for amendments on the part of plaintiffs. The privilege which was conceded to one party was properly granted to the other, and we see no error in the referee's rulings on this branch of the case. It is urged that the referee improperly excluded evidence of the contents of the books of the defendants. We are not favored with an authority or a principle whereby it is established or shown that the books of a party can be adduced as evidence on his own behalf, and made testimony against his adversary. Such books are but the acts and declarations of the party making them, and upon no rule of evidence can they be Mentz v. Second-avenue R. R. Co. competent testimony on behalf of the party keeping and making them. The referee properly excluded them. [The remainder of the opinion related to unimportant exceptions.] All the judges concurred. Judgment affirmed, with costs. MENTZ v. SECOND AVENUE RAILROAD COMPANY. March, 1869. Affirming 2 Robt. 356. In an action against a city railroad company to recover damages for running over the plaintiff, who stumbled and fell upon their track in crossing the street, it is not material that the plaintiff did not look to see whether a car was approaching before he attempted to cross, if there was when he started abundance of time under ordinary circumstances to cross the track before the car would reach him. The rule requiring care and diligence on the part of the plaintiff does not require him to anticipate the possibility of an accidental fall at an ordi nary crossing. In such an action it is not necessary, in order to prove the driver to have been negligent, to show that he actually saw the plaintiff lying on the track. Ordinary care is not sufficient under such circumstances. John Mentz, by Conrad Mentz, his guardian, sued the Second Avenue Railroad Company of the city of New York, in the New York superior court, to recover damages for an injury to the plaintiff by the cars or horses of the defendants. On August 3, 1859, the plaintiff suffered an injury upon the track of the defendants' road, by being thrown down, or run over, which resulted in the amputation of his arm. The jury gave a verdict for the plaintiff of four thousand five hundred dollars. At the time of the occurrence of the injury complained of, the plaintiff was a lad of about eight years of age. The theory which he claimed to recover, and which was sustained by the jury, was this: that, having occasion to cross Chrystiestreet, in the city of New York, he started in reasonable time upon Mentz v. Second-avenue R. R. Co. to accomplish that purpose; that when he reached the defendants' railroad track, which was laid in that street, he stumbled and fell; that by the fall his knee was so much injured that he had great difficulty in rising; that, at the instant of his fall, the defendants' car was approaching at a rapid rate, and was at the distance of thirty or forty feet from him when he fell; that the driver was talking with persons upon the platform, with his back towards his horses, and that, before the plaintiff could recover himself, he was struck by the horses, thrown down, and the injury inflicted. An intelligent account of the transaction was given by Stephen Hans, who testified, that as he was coming down Chrystie-street, he saw the boy fall on the railroad track; that the car was coming up from Grand-street; that the driver's face was turned round, and he was in conversation with some person on the platform of the car, and his face was towards the inside of the car; that the boy had fallen on the track in the middle of the street; that the car was about thirty-five feet from him when he fell; that the boy had hurt himself when he fell, and before he could get away, the car had come up, and the horse went over his arm; and that before the car came near to the boy, he heard persons call out to the driver to stop. The theory of the defense was: that the accident occurred solely through the negligence of the plaintiff; that, with other boys, he attempted to run across in front of the car, and directly against the horses, and was thus thrown under their feet. The driver testified, that several boys were being chased away by a man, and they made a dash, some one way and some another, and one of them (the plaintiff) ran almost abreast of the horses, and there was no possibility of braking the car before the horses knocked him down; that he heard no person halloo to him to stop; that he was attending to his business at the time; that there was only one passenger on the platform; that he had one hand hold of the lines, the other on the brake, and his eyes on his horses, and that he was not talking to any one. The theories of the parties were in direct conflict, and the claim of each was sustained by numerous witnesses. The supérior court, on appeal from the judgment and the |