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App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. usurious contract be mutually abandoned by the parties, and the securities be canceled or destroyed, so that they can never be made the foundation of an action, and the borrower subsequently makes a contract to pay the amount actually received by him, this last contract will not be tainted by the original usury and can be enforced.”

To the same effect is the language of the court in Hammond v. Hopping (13 Wend. 505): “If it (the usurious contract) is mutually abandoned, and the securities are canceled or destroyed so that they can never be made the foundation of an action, and the borrower subsequently promises to pay the amount actually received by him, such promise is legal and binding. It is founded upon an equitable and moral obligation which is sufficient to support an express promise. The money actually lent, when legally separated from the usurious prennium, is a debt in equity and conscience and ought to be paid.”

The judgment must be reversed and new trial granted, costs to abide event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.

ANN A. O'Reilly, Respondent, v. The Long ISLAND RAILROAD

COMPANY, Appellant.

Negligence injury from slipping on a sidewalk allowing shavings and gravel to

remain there fifty minutes is not actionable.

Where the only evidence of the negligence of a corporation is that it allowed

some gravel and shavings to fall from a roof, which it was repairing, upon a sidewalk in front of its premises, and to remain there fifty minutes, it is not liable to a passer-by who slips upon some of the pebbles, none of which were larger than a marble.

APPEAL by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 6th day of July, 1996,

SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. denying the defendant's motion for a new trial made upon the minutes.

This appeal was transferred from the first department to the second department.

William C. Beecher, for the appellant.

Edgar J. Nathan and Francis L. Wellman, for the respondent.

PER CURIAM:

This action is to recover damages for injuries received by the plaintiff by slipping on the sidewalk running in front of the defendant’s ferry house in Long Island City. The claim of the plaintiff is that she slipped by stepping on some small pebbles which were on the walk. It appears that the defendant had recently put on the ferry house a gravel roof, and at the time of the injury to the plaintiff was altering or repairing some dormer windows. The evidence would justify the inference that these pebbles or gravel and shavings fell on the walk from the defendant's roof. On a previous trial the plaintiff recovered a judgment. This judgment was reversed by the Appellate Division of the first department, and the case is reported in 4 Appellate Division, 139. It was there held, as a ground of reversal, that the plaintiff's evidence was defective in failing to show the length of time that the gravel had remained on the sidewalk. On this trial it was proved that some gravel and shavings had been on the sidewalk at least fifty minutes before the accident to the plaintiff. We think this proof did not take the case out of the rule laid down in the former decision. The plaintiff gives no definite idea of the quantity of gravel or shavings that was on the sidewalk. Iler witness Green testified : “ There was gravel on the sidewalk; it was from the size of a small marble down, and the amount — there wasn't much of it, not considerable; there was similar gravel on the roof. Q. Was there anything else on the sidewalk? A. No, sir ; little chips, little straggling chips.” It is thus apparent that there was not enough gravel or shavings to constitute any substantial obstruction on the sidewalk. Of course there was a possibility of the traveler slipping by stepping on the gravel, in the same manner that she might have slipped on a marble App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. or button or any trifling object that might be dropped on the sidewalk. We doubt very much whether the probability of danger from this cause was sufficiently great to charge the defendant with negligence in having failed to remove the gravel. In Beltz v. The City of Yonkers (148 N. Y. 67) the sidewalk was defective in this: The edge of a flag where it abutted another course was broken off and the broken parts removed, leaving a depression about two feet long, seven inches wide and two and half inches deep. In ilis depression the plaintiff caught her foot and as the result fell and was injured. It was not denied that this was a defect in the flagging, nor was there any question of the defendant's knowledge of the defect, for it had existed for years. But it was held that the defect was not of such a character that a reasonable person should anticipate danger to travelers and, therefore, that the defendant was not liable in failing to repair it. The liability of the defendant, though a common carrier, was, as to its sidewalks, simply the same as that of a municipality — the duty of exercising reasonable care. (Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136.) It would seem that danger was much less likely to be anticipated from the presence of a little gravel on the sidewalk than from the defect in the flagging, but even if it be conceded that the gravel should not have been suffered to remain on the sidewalk indefinitely, we think it was plainly too little dangerous to require the defendant to clean it off every hour.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

App. Div.-Vol. XV. 11

SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15.

CONGREGATION SHOMRI LABOKER ANSHE SAKOLER, Respondent, v.

ABRAHAM SINDRACK and Others, Appellants.

Funeral expenses equitable assignment by a next of kin of his interest in the estate

- parties to an action to enforce it.

Where the brother and only next of kin of a decedent, who died, leaving a

deposit in a bank, assigns in writing a part of it to a religious association in consideration of its burial of the deceased, the instrument is enforcible by action as an equitable assignment of the interest, in the fund, of the brother as next of kin of the deceased, to the extent of the claim of the religious

association. The assignor and the administrators of the deceased, holders of the fund, are · necessary and proper parties to an action brought to enforce such obligation.

APPEAL by the defendants, Abraham Sindrack and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1896, upon the decision of the court rendered after a trial at the New York Special Term overruling their demurrer to the plaintiff's complaint, and also from an order entered in said clerk's office on the 22d day of October, 1996, directing the entry of said judgment.

This appeal was transferred from the first department to the second department.

Charles I. Schampain, for the appellants.

Abraham H. Sarasohn, for the respondent. Cullen, J.:

The complaint alleges that one Morris Sindrack died, leaving his brother, the individual defendant Abraham Sindrack, his only next of kin, and possessed of a deposit in a savings bank exceeding in amount the sum of eight hundred dollars ; that the plaintiff contracted with the defendant Abraham Sindrack for the burial of Morris, and that in consideration therefor, Abraham agreed to pay the sum of eighty dollars and executed an assignment in writing

whereby he transferred and assigned to the plaintiff eighty dollars · out of the amount on deposit in the savings bank; that the plaintiff

thereupon buried the deceased ; that thereafter letters of adminisApp. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. tration on the estate of the deceased were issued to Abrahain Sindrack and David Friedman; that in fraud of the plaintiff's rights, the defendants, as administrators, drew out the entire amount on deposit in the bank and refused to pay the plaintiff the sum of eighty dollars agreed to be paid it for the burial of the deceased; that the plaintiff has no adequate remedy at law because the defendant Abraham Sindrack is without any financial responsibility. The plaintiff demanded judgment, that a trust be impressed upon the money in possession of the defendants drawn from the savings bank to the extent of eighty dollars, and that that sum be paid to the plaintiff. To this complaint the defendant Abrahain Sindrack, individually, and both defendants, as administrators, interposed several demurrers, on the ground that several causes of action are improperly united. From an interlocutory judgment overruling such demurrers this appeal is taken.

It is not necessary to say whether the plaintiff could have maintained an action at law against the administrators individually on ite claim for services in the burial of the deceased. As a general rule, such a claim can be maintained where the administrator has received sufficient assets to discharge it. (Rappelyea v. Russell, 1 Daly, 214; Patterson v. Patterson, 59 N. Y. 574.) Whether the action would lie in this case, as the services were rendered not on the credit of the estate, but on that of the brother individually, may be involved in some doubt. (Lucas v. Hessen, 17 Abb. N. C. 271.) If, however, it were conceded that the plaintiff could sue at law the defendants, individually, it does not follow that it is limited to that remedy. The defendant Abraham Sindrack assigned to the plaintiff eighty dollars out of the savings bank deposit. Of course the plaintiff is all wrong in its claim that the title to this money was in the brother as next of kin, and that its withdrawal by the administrators was an act in fraud of the plaintiff's rights. Nevertheless, the instrument was operative as an equitable assignment of the brother's interest as next of kin in the estate of the deceased to the extent of plaintiff's claim. The action was, therefore, properly brought to establish the assignment and to enforce the payinent by the administrators of the claim out of any distributive share to which Abraham might be entitled upon closing the estate. To such an action the assignor and the administrators who held the fund were

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