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Upon the trial a special verdict was rendered by the jury as follows:

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Question 1. Was the defendant, or its employees, guilty of any carelessness which caused the death of the plaintiff's intestate. James A. Annes? A. Yes. Q. 2. If to the foregoing question an affirmative answer be given, then who was the negligent employee? A. Engineer, brakeman, and conductor. Q. 3. If to the first question an affirmative answer be given, then state in what did the negligence consist. A. The brakeman is guilty in not locating the exact location of the stalled train. The engineer and conductor did not use necessary precaution to prevent the collision. Q. 4. If your answer to the first question be 'Yes,' was the carelessness ordinary or gross? A. Gross. Q. 6. What was the rate of speed-how many miles per hour-at which such engine was running at the time it struck such caboose? A. Ten miles. Q. 7. Could the engineer of the engine to which the snow-plow was attached have seen the caboose in which the said James A. Annes was seated, in time to have stopped his engine before it struck such caboose? A. Yes. Q. 8. Was the deceased, James A. Annes, guilty of any want of ordinary care, however slight, contributing to the injury? A. No. Q. 9. What is the pecuniary loss to the widow of said deceased, James A. Annes, as a direct consequence of his death? A. $3,500.

CLARK AMES,

Foreman. Exceptions were taken to the several findings of the jury as being unsupported by the evidence, and a motion was made to set aside the verdict, and for a new trial, for the reason that the verdict was wholly unsupported by the evidence, and for errors committed and exceptions taken on the trial.

After hearing this motion, the learned Circuit judge set aside the fourth and seventh findings of the special verdict as unsupported by the evidence. The learned Circuit judge was of the opinion that there was not sufficient evidence to sustain the seventh finding, viz.: "That the engineer of the engine to which the snow-plow was attached could have seen the caboose in which the said James A. Annes was seated in time to have stopped his engine before it struck the caboose;" and he set aside the fourth finding, that those in charge of the snow-plow and engine were guilty of gross negligence or carelessness in running into the caboose. The learned Circuit judge stated that he set aside the fourth finding because he inferred that the jury based that finding on the finding that the engineer on the engine attached to the snow-plow could have seen the caboose in time to have stopped his engine before it struck the caboose; and as he was of the opinion that there was no evidence to sustain the seventh finding, and as the fourth was based solely on that, it was also unsupported. After setting aside these findings, the learned Circuit judge, instead of granting a new trial, ordered judgment to be entered, upon the verdict so corrected, for the plaintiff, on the condition that the plaintiff should remit $1,000 from the damages found, this learned Circuit judge being of the opinion that the damages were excessive; and thereupon the plaintiff remitted the $1,000, and entered judgment against the defendant for the sum of $2,500 and costs, and from that judgment the defendant appeals to this court.

From the course pursued by the learned Circuit judge it is evident that he did not consider the fourth finding of the special verdict material in sustaining the plaintiff's action. Had he considered it material, he would necessarily have ordered a new trial, instead of entering a judgment in her favor after setting aside the finding so unsupported by the evidence. We will therefore first consider whether it was necessary for the plaintiff, in order to recover in this action, to show

that the injury which caused the death of her husband was the result of gross negligence on the part of the defendant, its employees, agents, or servants, or whether she may recover by showing that such injury occurred by a mere want of ordinary care on the part of the defendant, its employees, agents, or servants.

This raises the question whether a railroad company may, in cases where it agrees to transfer passengers without compensation, lawfully contract with such persons so as to relieve itself from all liability for any and all injuries which may be inflicted upon them by reason of any carelessness or negligence of its employees, agents, and servants, whatever may be the degree of such carelessness or negligence, or whether it may contract so as to relieve itself from liability for injur ies arising from the mere want of ordinary care on the part of its agents, servants, and employees, and not for injuries resulting from such gross acts of negligence on the part of its agents, servants, and employees as are equivalent to acts of willfulness or criminal neglect on their part. It would seem that the learned Circuit judge must have held in this case that the company could not lawfully contract to relieve itself from any want of ordinary care on the part of its agents, servants, or employees, and that the plaintiff was entitled to recover upon the same evidence that would have entitled her to recover had the deceased not signed the contract above set out. After a careful consideration of the decisions of this court, as well as of the large number of decisions of other courts upon these questions, we have come to the conclusion that the learned Circuit judge erred in his decision in this case as to the binding effect of the contract signed by the deceased in this case.

By an examination of all the authorities cited by the learned counsel for the respective parties upon the argument of this case, as well as others not cited, we find that in England, Canada, New York, New Jersey, Connecticut, and West Virginia the courts of those countries and States have held that a railroad company may, upon a proper consideration, lawfully contract to relieve itself for any and all negligence on the part of its servants, employees, and agents, without any regard to the degree of such negligence, and that such contract is not against public policy. These courts have therefore held that where the company agrees to carry a person without any compensation, or in different manner, and upon cars in which they do not usually carry passengers, the company may lawfully contract for exemption from all liability on account of the carelessness of its agents, servants, and employees. See the following cases cited by the learned counsel for the appellant: McCawley v. R. Co.,L. R.,8 Q. B. 57; Hall v. Ry. Co.,L. R.,10 Q. B. 437; Duff v. R. Co., 4 L. R. Ir. 178; Alexander v. R. Co., 33. Strobh. 594; Welles v. R. Co., 26 Barb. 641; Wells v. R. Co., 24 N. Y. 181; Perkins v. R. Co., id. 221; Smith v. R. Co., id. 222; Bissell v. R. Co., 35 id. 442; Magnin Dinsmore, 56 id. 168; Kinney v. R. Co., 32 N. J. Law. 407; S. C., 34 id. 513; Griswold v. R. Co., 53 Conn. 371, R. Co. v. Skeels, 3 W. Va. 556.

The argument in favor of the rule established in the above cases is perhaps as well stated in the case last cited as in any other. The court say: "By the rule of respondeat superior a corporation is made liable for the negligence of its servants; but when the principal has done the best he could, the rule is technical, harsh, and without any basis of inherent justice. As applicable to corporations, it is of great practical convenience and utility. We do not therefore advocate its abolition; but we contend that in a case like the present, when there is no actual fault on the part of the principal, it is reasonable in the eye of the law that the party for whose benefit the rule is given,

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should be allowed to waive it in consideration of a free passage. It is not a case where a party stipulates for exemption from the legal consequences of his own negligence, but one where he merely stipulates against a liability for imputed negligence in regard to which there is no actual fault. It is easy to see therefore that considerations of public policy have no application to such a case. * * *The foregoing reasoning, as it seems to us, will also furnish a complete answer to the claim that the defendant must be liable on account of the gross negligence of its servants, for it is manifest that the principal is no more culpable in the one case than in the other; and the rule respondeat superior being waived, the protection is complete."

The argument in this case would seem to imply that it is against public policy for a corporation engaged in a public capacity to stipulate against acts of negligence on the part of the corporation itself, and that agreement is only valid when it relieves the company from the imputed negligence of its servants, etc., and that the company might be liable, notwithstanding an agreement to the contrary, if the injury received was the result of the neglect of the company to employ competent servants, or to use safe machinery. These cases are however authority for exempting the company from all liability under the facts disclosed in the case at bar.

There is another class of cases which hold that it is against public policy to allow a common carrier to contract to exempt itself from liability, either on account of the negligence of the corporation itself, or of its agents, servants, or employees, without regard to the degree of such negligence or carelessness. It will be found, by an examination of the large number of cases in which this rule is held, that they were cases arising out of the carriage of goods for hire, or where the carriage of the passenger was for a consideration received either directly or indirectly by the carrier. The leading cases upon that subject are the cases of R. Co. v. Lockwood, 17 Wall. 357, and R. Co. v. Stevens, 95 U. S. 655, and there are numerous decisions in the courts of the different States which are in accord with the rule established in these cases.

The cases of R. Co. v. Derby, 14 How. 486, and Steamboat, etc., v. King, 16 id. 469, are in harmony with the rule laid down in 17 Wall. In these cases, the passenger, it 18 true, was riding on a free pass, but there was no agreement that he should take the risks of accident in consideration of his receiving such pass. The court very properly held that such passenger, in the absence of any special contract, was entitled to the same protection as one paying for his passage. A similar decision was made by the Supreme Court of Maryland in 1885. Abell v. Maryland R. Co., 19 Rep. 494. In this last case the court say they do not decide what the effect of a special contract, on the part of the person receiving the free pass, to assume all the risks of accident, would have been as to the liability of the company

This court has approved of the rule stated by the court in R. Co. v. Lockwood, and has held that a carrier for hire cannot relieve himself from liability, even by special contract, for its own, or for the negligence of its servants. So far as the carriage of freight is concerned, or for doing any other act as a common carrier other than the carriage of passengers. See Thompson v. Tel. Co., 64 Wis. 531, 536; Candee v. Tel. Co., 34 id. 471; Hibbard v. Tel. Co., 33 id. 558. We see no good reason why the same rule should not be applied to the case of the transportation of a passenger for hire. We think, as is said by the Supreme Court of the United States, "that it is not just or reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence

of himself or his servants." 17 Wall. 384. But we are also of the opinion that the general rule so laid down must be limited to a case in which the carrier is a carrier for hire, and not when the carriage is gratuitous. The only cases to which we have been cited, or which we are able to find in which that rule has been applied to the case of a gratuitous carriage, are the following: R. Co. v. Butler, 57 Penn. St. 335; R. Co. v. Hopkins, 41 Ala. 486, 503; R. Co. v. Selby, 47 Ind. 47; Jacobus v. R. Co., 20 Minn. 125 (Gil. 110). It will be seen however by an examination of this last case, that the only question presented to the court for its decision was whether the defendant company was liable for the gross negligence of its servants.

The case of Rose v. R. Co., 39 Iowa, 246, cited to sustain the rule, was decided upon the construction of the statute of the State of Iowa, and not upon general principles; and the case of R. Co. v. Read, 37 Ill. 484, does not sustain the rule to the extent stated above.

The court has not adopted the rule laid down by the courts of England, New York, Connecticut, New Jersey, and West Virginia; nor has it adopted the broad rule of the courts of Pennsylvania, Alabama, Indiana, and Minnesota, that all contracts exempting the carrier from liability on account of the negligence of itself, or of its employees aud agents, are void as against public policy.

In the case of Betts v. Farmers' Loan & Trust Co., 21 Wis. 80, the rule of the New York and English cases was adopted, so far as it concerned the carriage of live-stock, on the ground that it was questionable whether in the absence of a statute compelling the carrier to do so, he could be compelled to receive and transport that kind of property; but the court expressly say: "We intimate no opinion as to whether it is or is not competent for a common carrier to make similar stipulations with regard to other kinds of property so as to protect himself against loss or damage for his own negligence, or the negligence or omissions of his agents or servants." This rule, as regards live stock, has been perhaps modified by this courtat least it does not seem to have been followed - in Morrison v. Phillips & Colby Const. Co., 44 Wis. 405; and its authority is questioned in Richardson v. R.Co., 61 id. 596; S. C., 21 N. W. Rep. 49.

The rule laid down in R. Co. v. Lockwood has been, to some extent, approved by this court in the cases of Morrison v. Phillips & Colby Const. Co., 44 Wis. 405; Black v. Goodrich Transp. Co., 55 id. 319; S. C., 21 N. W. Rep. 244; Richardson v. R. Co., 61 Wis. 596; S. C., 21 N. W. Rep. 49; Lawson v. R. Co., 64 Wis. 447, 455; S. C., 24 N. W. Rep. 618.

In the case of Morrison v. Phillips & Colby Const. Co., supra, it seems to have been held that the carrier was liable to the shipper for any ordinary neglect or want of care on its part, or on the part of its agents and servants, notwithstanding the horses (the freight in question) were shipped upon a bill of lading which stated that they were to be at the risk of the

Owner.

There is another class of cases which hold, that in the case of a passenger who is carried gratuitously by a common carrier, the carrier may, by express contract, relieve himself for the mere neglect or want of ordinary care on the part of the carrier, or of his servants and employees; but that he cannot relieve himself from liability for gross negligence on his part, or on the part of his servants or employees. Although this court has not expressly adopted this rule in a case of the kind at bar, yet it has been stated in several of the opinions in the cases above cited (see Black v. Goodrich Transp. Co., Lawson v. R. Co., and Richardson v. R. Co., supra) that the carrier cannot by

contract relief itself from liability for such gross negligence, either of itself or its agents and ser

vants.

In R. Co. v. Read, 37 Ill. 484, which was a case for an injury received by a passenger riding upon a free pass, and upon a contract in all respects like the one in the case at bar, after a very elaborate argument of the case by counsel, and a carefully considered opinion by the court, it was held "that the agreement did not exempt the railroad company from the gross negligence of its employees, and that it does exempt it from all other species or degrees of negligence not denominated gross, or which have the character of recklessness. For such unavoidable accidents as will happen by the best-managed railroad trains this argument would be a perfect immunity to the company."

In the case of R. Co. v. Morrison, 19 Ill. 136, it was said, "that railroads have the right to restrict their liability as common carriers by such contracts as may be agreed upon specially, was a good rule, the railroad companies still remaining liable for gross negligence or willful misfeasance, against which good morals and public policy forbid they should be permitted to stipulate." So far as the Illinois court has applied this rule of exemption to cases other than those arising upon a case of gratuitous carriage of a passenger or freight, we do not approve the decision, but are inclined to follow the rule laid dow in R. Co. v. Lockwood, and the numerous other cases following the rule in that case.

The same rule, but perhaps still more restricted, is adopted by the Supreme Court of Georgia in R. Co. v. Bishop, 50 Ga. 465, 473. This case was a case of an employee of the company who had entered into an agreement to take upon himself all the risks of his position, that he would in no case hold the company liable for any damage he might sustain by accidents or collisions on the trains or road, or which may result from the negligence or carlessness or misconduct of other employees or persons connected with such road, or in the service of the company. The court say: "We recognize one limitation to this agreement, and that is the limitation the law puts upon all contracts. No man can stipulate for immunity in case he should do an act that is a crime. No contract is a good one that is in violation of law, that which the law forbids, or which is against good morals, or contrary to public policy. Nothing in this contract can therefore protect the company when the negligence which has caused the damage is a crime, when it comes within that kind of negligence which is called, in section 4291 of the Code, criminal negligence, reckless of human safety and human life. That sort of negligence, is forbidden by law, and punishable by law as penal. It is contrary to good morals and to public policy as declared by law." See also on this point, Com. v. R. Co., 108 Mass. 7; R. Co. v. Hopkins, 41 Ala. 486; R. Co. v. Mundy, 21 Ind. 48.

We can see no good reason why the person who seeks a gratuitous carriage from a railroad company should stand in the same position to the carrier as the person who pays for his transportation, and therefore forces the carrier to assume all the duties of such carrier. The carrier is in no case under obligation of law to carry a person gratuitously, as he is when he is tendered his proper compensation, and he does not therefore owe the same duty to the person carried gratuitously that he does to the person who pays for his carriage, unless he chooses to accept such duty by not stipulating against assuming it. Nor does it appear to us to be contrary to public policy or to good morals for the carrier to stipulate with the person who desires a gratuitous transportation that he shall assume the ordinary risks of accident which may occur through the want of ordinary care on the part of the

servants of the company. So long as the carrier does not attempt to excuse himself from that recklessness of his servants which is dangerous to human life, or is punishable by law, or inconsistent with good morals, it does not seem to us that he is violating any rule of law, or that he is acting against public policy. The argument of the English courts. and the courts of New York, New Jersey, and Connecticut, when limited as above stated, seems to us unanswerable. We are also of the opinion that the carrier cannot stipulate against any negligence of his servants or agents which is expressly made a crime, and punishable by law, even though such negligence may not be of that degree which is denominated gross carelessness or recklessness. See sections 4357, 4358, 4363, 4367, 4392, and 4393. We think that a railroad company, when carrying a passenger gratuitously is in a condition analogous to the bailee for the sole benefit of the bailor, as is generally instanced, the case of a person storing goods of another on his premises without compensation; and in such case it always has been held that the bailor shall only be liable for their loss or damage when he is guilty of gross neglect. The carrier who carries a passenger gratuitously does it, presumably solely for the benefit of the person carried, and it is but reasonable that he should be allowed to stipulate that he shall be liable only for the gross neglect of his employees and servants, but that public policy prohibits him from stipulating to exempt himself from liability for the gross neglect of such servants and employees. According to the definition of the elementary writer, "gross neglect is the want of slight diligence, or it is the want of that care which every man of common sense, howsoever inattentive, takes of his own property." Lawson Carr., § 126; Story Bail., $17.

As we hold the contract made by the railroad company with the deceased was effective to relieve the company from liability for any damage to him by reason of a want of ordinary care on the part of its servants and employees unless it was caused by some criminal act of such servants or employees, it becomes necessary for the plaintiff to show by the evidence that the death of the deceased was caused by reason of the gross carelessness of such agents and servants. It is clear therefore that the Circuit judge erred in entering judgment on the special verdict as amended by him, and should in his view of the evidence, upon the question of gross neglect of the employees and servants of the defendant, have ordered a new trial.

We are of the opinion that the practice of the Circuit Court in this case ought not to prevail, and that in all cases where the Circuit Court undertakes to set aside a special finding in a special verdict, a new trial should be ordered, unless it clearly appears that the finding is wholly immaterial, and can have no effect as to the judgment which shoud be entered in the action. We are all of the opinion, that upon the whole evidence in the case, the question of the gross negligence of the employees of the defendant in this case was clearly a question for the jury, and that the Circuit judge erred in setting it aside as unsupported by the evidence. The mistake of the learned judge was in holding that there was no sufficient evidence of the gross misconduct of the employees of the company, and in holding that the gross negligence found by the jury was based solely on the fact that the jury found that the men on the engine could have seen the stalled train in time to have stopped before running into it. Whether they could or could not see was not conclusive as to the question of their gross negligence. The very fact, if it was a fact, that they could not see, might tend to show gross carelessness in not stopping the train before running into it. If they could not see

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it, and they had no definite knowledge as to the exact location of it, it was evidence tending to show gross negligence not to stop the train before striking, or at all events, in not slackening speed so as not to endanger the lives of those on the stalled train before running into it. That there was sufficient evidence to go to the jury on the question of gross negligence it seems to us is very clear. See Com. v. R. Co., 108 Mass. 7. 12: Lawson v. R. Co., 64 Wis. 447, 458; S. C., 24 N. W. Rep. 618; Moseley v. Nacoochee, 28 Fed. Rep. 462, 467.

[Omitting minor considerations.]

The judgment of the Circuit Court is affirmed.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-ORDER ON MOTION-HABEAS CORPUS.-An appeal will not lie from a refusal by the court below to set aside an order, in a habeas corpus case, on motion, where it was in the discretion of the court below to grant that relief, or to leave the appellant to set up the invalidity of the order whenever an attempt should be made to enforce it. Foote v. Lathrop, 41 N. Y. 358, followed. Dec. 7, 1886. People v. Brown. Opinion by Rapallo, J.

CONTRACT-SUBSCRIPTION-TOWARD CHURCH DEBT -CONSIDERATION. A promissory note executed in pursuance of a promise to subscribe $2,500 toward the payment of a church debt on condition that the church would raise the balance by voluntary subscriptions which condition is performed, is founded upon a sufficient consideration and binding upon the maker. Trustees of Hamilton College v. Stewart, 1 N. Y 587; Barnes v. Perine, 12 id. 18; Marie v. Garrison, 83 id. 14; Parsons Cont. (5th ed.) 452, and note. Dec. 7, 1886. Roberts v. Cobb. Opinion by Earl J.

INSURANCE - WIFE'S POLICY — ASSIGNABILITY.-A policy issued to a wife on her husband's life provided, that in case of the death of the wife before the husband, the amount should be payable after her death to his children. * * * The wife, her husband uniting therein, assigned the policy. In an action by the assignee to recover the amount due on the policy, the wife was made a party and she resisted payment, on the ground that she being a married woman, having children who had an interest in the policy, the assignment thereof was void, and further, that the assignment was not executed in conformity with the statute. Held, that under the statute (act 1879, ch. 248) the assignment was valid, (1) because under said statute the joining in of the husband in the assignment was a sufficient consent in writing, (2) she having survived her husband, the contingent interest of the children had not vested, and she was absolute owner. Dec. 17. 1886. Anderson v. Goldsmit. Opinion by Earl, J. MASTER AND SERVANT EMPLOYEE KILLED - EVIDENCE DECLARATION AS TO HOW ACCIDENT HAP

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PENED.-In an action to recover for personal injuries to an employee resulting in death, the sole ground on which plaintiff's claim to recover was founded was that the car which the employee was directed to detach from the train was not furnished with a horizontal grabhandle on its end, and that that alleged defect was the cause of the injury. Under objection and exception plaintiff was allowed to prove that after the deceased had been taken out from under the car, by which he had been injured, and while he was being conveyed to the switch-house by his fellow employees, some one asked him how the accident had happened, and he said: "I pulled the pin and made a grab for the car, and there was nothing there for me to grab ' Another version given by the witness was, that de

ceased said he cut off the car and made a grab for the handle of the car, and there was nothing there for him. Held, that the declarations of the injured party were incompetent, and the admission thereof was error. Waldele v. N. Y. C. R. Co., 95 N. Y. 274, followed. Dec. 17, 1886. Martin v. New York Cent. R. Co. Opinion by Rapallo, J.

MORTGAGE-PAYMENT -PRESUMPTION -LAPSE OF TIME-STATUTE OF LIMITATIONS TRUST FUNDS.-(1) Where a sum of money was loaued by an executrix and trustee in accordance with the will of the testator, and a boud and mortgage were taken to secure it, and after the death of the executrix, the mortgage was found uncancelled on the record, in an action brought by the beneficiaries of the fund against the estate of the mortgagee, who it was alleged had knowledge of the trust, to enforce payment of the mortgage, held. that after the lapse of forty-eight years from the date of the loan to the death of the mortgagee, and thirtyfour years from the date of the loan to the death of the executrix, the non-production of the bond and mortgage will furnish satisfactory and conclusive evidence of their payment. Bergan v. Urbahan, 83 N. Y. 49. (2) Held, further, that the New York statute of limitations furnishes an equally conclusive defense to the action. If this were an action to recover the debt evidenced by the bond and mortgage, it is conceded that it would have been barred. But the action is to establish and enforce a trust, and hence the claim is made that it is not barred. It is undoubtedly gen

erally true, that as against a trustee of an actual, express, subsisting trust, the statute does not begin to run against the beneficiary until the trustee has openly, to the knowledge of the beneficiary, renounced, disclaimed, or repudiated the trust. But Edward Lammer was not the actual trustee of this fund, and he never acknowledged a trust as to the money loaned him. He could, at most, have been declared a trustee ex maleficio, or by implication or construction of law; and in such a case the statute begins to run from the time the wrong was committed by which the party became chargeable as trustee by implication. Wilmerding v. Russ, 33 Conn. 67; Askhurst's Appeal, 60 Penn. 290; McClane v. Shepherd, 21 N. J. Eq. 76; Decouche v. Savetier, 3 Johns. Ch. 190; Ward v. Smith, 3 Sandf. Ch. 592; Higgins v. Higgins, 14 Abb. (N. C.) 13; Clark v. Boorman, 18 Wall. 493; Perry Trusts, 3865. Nov. 23, 1886. Lammer v. Stoddard. Opinion by Earl, J.

SPECIFIC PERFORMANCE - MORTGAGE FORECLOSURE -MORTGAGOR'S ASSIGNEE NOT A PARTY LAPSE OF TIME-PRESUMPTION-WILL-POWER TO SELL-UNPRODUCTIVE REAL ESTATE.-(1) In June, 1835, K.sold three lots in the city of New York to D., taking a mortgage. On the 16th of May, 1840, D. assigned the same, with other property, to S., for the benefit of his creditors. In August of that year the lots were sold in a suit for foreclosure of the mortgage by K., bid in by him, and were afterward couveyed to him. D. was made a party to the suit for foreclosure, but his assignee, S., was not. On the 17th of March, 1885, K.'s executors under his will sold the lots to H., but H. refused to complete his purchase, claiming that the title was defective by reason of the omission to make S., the assignee of D., a party to the foreclosure suit. Held, that after so long a lapse of time, the trusts of the assignments will be presumed to have been satisfied; that the deed of K.'s executors will convey a good title; and that H. should be required to specifically perform his contract. (2) Where a testator by his will directs his executors to sell all his vacant and unproductive lots, and divide the proceeds among his children, held, that it was the intention of the testator to include in the power the real estate which was vacant

and unproductive at the time of his death. Miller, J., dissenting. Dec. 7, 1886. Kip. v. Hirsh. Opinion by Rapallo, J.

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STATUTE OF LIMITATIONS-CONTRACT — MATERIALS AND WORK BUFFALO STATE ASYLUM FOR INSANE— BOARD OF CLAIMS-LAWS N. Y. 1870, CH. 378; ID. 1874, CH. 323; ID. 1875, CH. 264.-Under the New York act of 1870 (ch. 378) "to establish and organize the Buffalo State Asylum for the Insane," the managers appointed under the act entered into an agreement with Peck & Co., contractors, who were the lowest bidders, that they should furnish the materials, and do certain work required, at the prices named in the contract. Peck & Co. thereupon commenced operations, and continued to furnish the materials, and do the work required of them, until November 6, 1877, when in consequence of certain changes which had been resolved on, they were prohibited from a further performance of their contract. In the year 1881 they assigned their claim for damages for the breach of contract to B., and in the month of January, 1882, he presented his claim for allowance to the State board for audit, which was afterward transferred to the board of claims when that board was constituted in 1883. Held, on appeal, that the claim was not barred by the statute of limitations, the contract not having been abrogated by the provisions of chapter 323, Laws 1874, nor by chapter 264, Laws 1875. In conclusion, we repeat, as peculiarly applicable to this case, what was said in Corkings v. State, 99 N. Y. 499: "When the State has no better or other defense than the statute of limitations, it should at least, both upon the law and the facts, establish that defense with reasonable clearness and certainty." Ruger, C. J., Rapallo and Finch, JJ., concur. Danforth, J., dissents. Andrews and Miller, JJ., not voting. Dec. 7, 1886. McMaster v. State. Opinion by Rapallo, J.

TRIAL-RIGHT TO OPEN AND CLOSE-CODE CIV.PROC., § 522.- In an action on a promissory note, the answer denied none of the allegations of the complaint, but after affirmatively setting up that defendant was an accommodation indorser, and that the note had in fact been paid, continued: "And this defendant says, on information and belief, that the said plaintiffs are not the lawful owners and holders of said note, and that he is not indebted to them thereupon in any sum whatever." Held, that defendant had the right to begin and close, and a ruling to the contrary was error. Code Civ. Proc., § 522. Dec. 7, 1886. Conselyea v. Swift. Opinion by Danforth, J.

CHARGE-THAT JURY MUST GET TOGETHER." In an action for personal injuries at a railway crossing, after the jury had retired to consider their verdict, they came into court and one of them stated that there was no probability of an agreement., To this the trial judge said: "I can't take any such statement as that. Gentlemen, you must get together upon a matter of this kind. No juror ought to remain entirely firm in his own conviction one way or another until he has made up his mind beyond all question that he is necessarily right and the others are necessarily wrong." Defendant excepted and plaintiff had a verdict. Held, that the instruction was not a correct statement of the law. It was incumbent upon the party holding the affirmative of the issue, who in this case was the plaintiff, to satisfy the jury by a preponderance of evidence of the facts upon which her right to recover depended. If she failed to do so the defendant was entitled to a verdict. The jurors who were not satisfied by the evidence of the truth of the plaintiff's allegations were justified in refusing for that reason to find a verdict in her favor, although they might not have made up their minds beyond all question that they were necessarily right,

COMPETENCY

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and that those who were in favor of finding a verdict for the plaintiff were necessarily wrong. To sustain this instruction would be to cast upon the defendant in a civil action a burden quite as heavy as that which rests upon the prosecution in a criminal case, and perhaps more onerous. If the evidence was so clear as to lead to a conclusion with the degree of certainty required by the charge, there was nothing to submit to the jury, and it was the duty of the court either to direct a verdict or to nonsuit the plaintiff. Dec. 17, 1886. Cranston v. New York, etc., R. Co. Opinion by Rapallo, J. WITNESS WILL CONTEST - TESTATOR'S PHYSICIAN-CODE CIV. PROC. N. Y., §§ 834, 836. -In the trial of an issue as to the competency of a testator, a physician who was present at the testator's house a short time before the execution of his will, by request of his attending physician, for the purpose of consultation, was asked: "Will you describe the appearance and condition of the sick man when you got into the room?" "At the time you examined this man, was he, in your judgment, in that state known to your profession as 'collapse ?" "Was he, in your judgment, in a dying condition?" "State whether, in your judgment, at any time after that occasion when you were there, * was in such a condition that he was capable of understanding and taking into account the nature and character of his property, and of his relations by blood and marriage-those who were or might become the objects of his bounty, and make an intelligent disposition of his property by will." Held, incompetent under sections 834 and 836 N. Y. Code of Civil Procedure. Dr. Bontecou was a person duly authorized to practice physic. Whatever information he had about the condition of the testator he acquired while attending him as a patient. It is true that the testator did not call him, or procure his attendance; but he did not thrust himself into his presence or intrude there. He was called by the attending physician, and went in his professional capacity to see the patient, and that was enough to bring the case within the statute. It is quite common for physicians to be summoned by the friends of the patient, or even by strangers about him; and the statute would be robbed of much of its virtue if a physician thus called were to be excluded from its provisions, because as contended by the learned counsel for the appellant, he was not employed by the the patient, nor a contract relation created] between him and the patient. To bring the case within the statute it is sufficient that the person attended as a physician upon the patient, and obtained his information in that capacity. It is not disputed, and could not well be, that the information obtained by the witness was necessary to enable him to act in his professional capacity. Therefore if the letter of the statute is to prevail, it cannot be doubted that the rulings of the trial judge were correct. But it is claimed that the statute should be held not to apply to testamentary cases. There is just as much reason for applying it to such cases as to any other, and the broad and sweeping language of the two sections cannot be so limited as to exclude such cases from their operation. There is no more reason for allowing the secret ailments of a patient to be brought to light in a contest over his will than there is for exposing them in any other case where they become the legitimate subject of inquiry. Au exception so important, if proper, should be ingrafted upon the statute by the Legislature, and not by the courts. It is also claimed that the statute should be so construed as only to prohibit the disclosures by a physician of any information of a confidential nature obtained by him from his patient, or while attending him in a professional capacity. Such was the view of

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