3. CARRIERS-PASSENGERS.

Where a street car company stops a car equipped for carrying passengers at a place selected by it to receive passengers, a person who, desiring to be transported, boards or attempts to board the car for such purpose, becomes a passenger, as the stopping of the car at the customary place is an implied invitation to those waiting to take passage.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, § 989.]

4. SAME-TRESPASSERS.

A person desiring passage, who boards a street car stopping at a customary place to receive passengers, and indicating his intention to become a passenger, without notice that persons are not invited to board, cannot be treated as a trespasser.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Carriers, § 989.]

5. SAME-PAYMENT OF FARE.

A special contract with a street car company, based on the payment of fare, is not essential to make a person boarding a car stopping at the customary place a passenger.

[Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 974, 989.]

6. APPEAL-BRIEFS-RECITAL OF EVIDENCE.

Rule 22 (55 N. E. v.) requiring that, if the insufficiency of the evidence to sustain the verdict is assigned, the statement in the brief shall contain a condensed recital of the evidence in narrative form, so as to present the subject clearly and concisely, cannot be invoked as a basis for refusing to determine the substantial issues presented, when the brief sufficiently conforms to the rule to enable the court to comprehend the proposition relied on.

Appeal from Superior Court, Vigo County; O. B. Harris, Special Judge.

Action by William Hall against the Terre Haute Electric Company. From a judgment for defendant, plaintiff appeals. Reversed.

Stimson & Condit and Catlin & Catlin, for appellant. McNutt & McNutt, for appellee.

ROBY, C. J. In the single paragraph of complaint it is substantially charged that appellee owned and was operating an electric street railway in the city of Terre Haute and that appellant attempted to board one of its cars standing on said railway, at a regular stopping place upon one of the streets of said city, for the purpose of becoming a passenger thereon, and that while in the act of boarding said car for said purpose, appellee's servant negligently started the same, and thereby threw appellant off and broke his leg. The issue was formed by a general denial, cause submitted for trial to a jury, and, at the conclusion of the evidence, a peremptory instruction to find for the defendant was given. An exception was reserved, and the action of the court in giving such instruction presents the question for decision.

The injury complained of occurred in the city of Terre Haute, on November 10, 1900, at which time appellee owned and operated an electric railway system therein, the main line of which occupied Wabash avenue and South Third street; the direction of the

nue

former being east and west, and of the latter, north and south. The line on Wabash avewas double tracked, on Third street there was a single track only, excepting that a switch extended 120 feet south of the avenue. Some cars turned south and continued on Third street, others were taken to the end of the switch and placed in position for the return trip over the avenue. For one fare, passengers were entitled to a continuous ride to any part of the system, being transferred from one line to another, when necessary. The regular stopping place for all cars bound south was just south of the south line of Wabash avenue. After rounding the curve at this point, all main line and south-bound cars, regularly stopped for the purpose of discharging and transferring passengers, but cars which ran no further south than the switch, stopped only for the purpose of discharging passengers. Appellant was a man 63 years old, and desired to go 14 squares south of the avenue. He carried a valise weighing 25 to 50 pounds. It was then 5 o'clock or later and turning dark. The day was wet and cloudy. When he was at the corner of said streets opposite to the regular stopping place, he observed a car one and one-half blocks distant coming west. He crossed to the southwest corner, and staid in the street near the track waiting for a south-bound car at the regular stopping place, as aforesaid. There were other vehicles in the street through which he had made his way in crossing. The car stopped as usual, but did not quite clear the curve. Appellant was within 10 feet of it when it stopped. The conductor stepped off, and assisted a lady to alight, and returned to the platform. Appellant followed him, putting his left foot upon the step, grasping the hand rail in his left hand, and carrying the valise in his right. He testified that the car was standing still. There is other evidence to the effect that it was in motion. The conductor stood in the rear door. Appellant said: "Is this car going to South Third?" The conductor said: "No, sir." The car immediately started with a jerk and swinging motion, owing to the curved track, and appellant was thrown off, and his hip joint broken. The car ran on south to the switch and was then returned to Wabash avenue. The actual purpose of its stop was to discharge passengers. It was appellee's custom, when a passenger boarded its cars under such circumstances, to collect a fare and, if he returned, to charge a second fare. The conductor was not looking for passengers, saw appellant on the step, and "never noticed any more." It was the custom to carry on the front and rear of cars movable signboards, showing the name of the place or streets to which they were bound; such cars being otherwise indistinguishable. There is evidence from which it may be fairly inferred that no such sign was on the front end of the car in question. In con

sidering a motion for a peremptory instruction, the court is bound to accept as true, all facts which the evidence tends to prove, and all such inferences as are reasonably deducible therefrom against the party asking a protection of the verdict and in case of conflict in the evidence, excluding that favorable to him. Curryer v. Oliver, 27 Ind. App. 424, 426, 60 N. E. 364, 61 N. E. 593. The question of contributory negligence was for the jury, and the peremptory instruction cannot be sustained by reference to facts bearing upon that issue, the affirmative of which was upon appellee. Chicago, I. & L. Ry. Co. v. Barnes (Ind. Sup.) 73 N. E. 91; Haughton v. Ætna Life Ins. Co. (Ind. Sup.) 73 N. E. 592; 74 N. E. 613.

Appellee justifies the action of the court, upon the theory that it was under no legal obligation to appellant, except not to will fully injure him. A street railway company is granted its franchise in order that it may carry passengers. When it brings upon the street a car equipped for such purpose, stopping the same at a place selected by it, at which to receive passengers, and the person desiring to be transported boards, or attempts to board, such car for such purpose, he becomes a passenger thereon; the act of stopping the car at the customary place being an implied invitation to those waiting to take passage. Citizens', etc., Co. v. Jolly, 161 Ind. 80, 67 N. E. 935; Citizens Street Ry. Co. v. Merl, 26 Ind. App. 284, 59 N. E. 491; Gaffney v. St. Paul City Ry. Co., 81 Minn. 459, 462, 84 N. W. 304; Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49; Ganiard v. Rochester City & Brighton Ry. Co., 50 Hun, 22, 2 N. Y. Supp. 470; Ganiard v. Rochester City Elec. Ry. Co., 121 N. Y. 661, 24 N. E. 1092; Wallace v. Third Ave. Ry. Co. (Sup.) 55 N. Y. Supp. 132, 135; Gordon v. West End Street Ry. Co., 175 Mass. 181, 55 N. E. 990; McDonough v. Metropolitan R. R., 137 Mass. 210; Schepers v. Union Depot R. Co., 126 Mo. 665, 29 S. W. 712; Joliet Street Ry. Co. v. Duggan, 45 Ill. App 450; Nellis Street Ry. Law, 44. If appellee did not wish to extend such invitation, its duty was to give those in waiting notice to that effect. Citizens', etc., Co. v. Jolly, supra. The person desiring passage, who boards the car without such notice, indicating his intention of becoming a passenger thereon, cannot be treated as a trespasser. Citizens', etc., Co. v. Jolly, supra. Appellant boarded a car which stopped at the usual place for the purpose of being conveyed to his destination. A special contract with the company, based upon payment of fare, was not essential to make him a passenger. Butler v. Glenn Falls, etc., Co., 121 N. Y. 112, 24

N. E. 187; Clark, Accident Law, Street Railways (2d Ed.) §§ 1-3. The evidence was conflicting with regard to a number of matters, but that most favorable to the appellee was sufficient to take the case to the jury, and the court therefore erred in giving the peremptory instruction.

It has been argued that the appeal was not effective to present the merits of the controversy, on account of appellant's failure to properly index the transcript and to comply with rule 22 (55 N. E. v), in so far as the same requires the appellant's brief to contain a condensed recital of the evidence. The first objection has been remedied upon motion. Rule 22 is as follows: "The brief of appellant shall contain a short and clear statement disclosing * Fifth, a concise statement of so much of the record as fully presents every error and exception relied on, referring to the pages and lines of the transcript. If the insufficiency of the evidence to sustain the verdict, in fact or law, is assigned, the statement shall contain a condensed recital of the evidence in narrative form, so as to present the subject clearly and concisely. "The purpose in prescribing rules relative to the contents and arrangement of briefs, is to procure an orderly and intelligent presentation of the questions, the merits of which it is desired to have considered. Given a standard for the arrangement of such matter, individual briefs are expected to conform in a general and reasonable way thereto. No absolute standard of literary attainment can be laid down or followed. Each person who prepares a brief imparts his own personality to it, in a large degree, and the rule was not intended to destroy or minimize such expression. No two men will make a condensed recital of evidence in narrative form in the same words, nor will they arrange the matter exactly alike. When a good-faith effort is made to enlighten the court, and to conform to the practice specified, the rule cannot be invoked as a basis for refusing to determine the substantial issues presented. To do so would be to exercise an unwarranted authority, and substitute an artificial standard for the substance of justice. Appellant's brief sufficiently conforms to the rule in the respect indicated to enable the court to comprehend the propositions relied upon, and the reference made to the typewritten transcript guards against any possibility of error as to what the facts were. For error in giving the instruction above referred to, the judgment is reversed, and the cause remanded, with instructions to sustain appellant's motion for a new trial, and for further consistent proceedings.

(183 N. Y. 368) MCARDLE v. GERMAN ALLIANCE INS. CO. et al.

(Court of Appeals of New York. Jan. 9, 1906.) 1. INSURANCE-POLICY-WAIVER OF LIMITATION EVIDENCE.

Evidence held insufficient to authorize a finding of a waiver by an insurance company of a clause in the policy providing that no suit should be maintained thereon after 12 months from the time of the fire.

2. SAME-AGREEMENT AS TO PAYMENT EVI

DENCE.

In an action on an insurance policy, evidence held insufficient to show that the insurance moneys were to be held as a fund for the payment of the loss pending a dispute be tween the owner of the building insured and his

tenant.

3. SAME-DELAY IN SUIT-EXCUSES.

It is no ground for delay in the commencement of an action on a policy until after the time authorized by the terms of the policy for bringing suit that plaintiff did not learn of the payment of the insurance to his tenant, who also claimed it, as such payment in no way affected the rights of plaintiff to recover on the policy.

4. SAME.

In an action on a policy on an icehouse erected by a tenant on plaintiff's land, where an agent took a draft for the amount of the loss to plaintiff and asked him to indorse it, stating that he would also get the tenant to indorse it, and that the amount of the draft would be divided between them, and the plaintiff refused so to do, claiming the total amount of the draft, a contention that by the issuance of the draft the insurance company created a fund for the payment of the loss and created a new liability, excusing plaintiff for failing to sue on the policy within one year from the loss, as provided by the terms, is not well founded.

Appeal from Supreme Court, Appellate DIvision, Third Department.

Action by Patrick J. McArdle against the German Alliance Insurance Company and another. From an order of the Appellate Division (98 App. Div. 594, 90 N. Y. Supp. 485), reversing a judgment for defendants on dismissal of the complaint, and granting a new trial, the insurance company appeals. Reversed.

Robert E. Whalen, for appellant. Franklin M. Danaher and George T. Kelly, for respondent.

CULLEN, C. J. On January 3, 1899, the plaintiff was the owner of certain lands in the county of Albany, on which his tenant, one White, had erected an icehouse. On that day the defendant issued a policy insuring White against loss or damage to said icehouse by fire in the sum of $2,000, loss, if any, payable to the plaintiff as his interest might appear. The policy was in the standard form prescribed by the insurance department, and provided that no suit or action should be maintained thereon unless brought within 12 months next after the fire. On May 27th of that year the icehouse was totally destroyed, and due notice thereof and proper proofs of loss were given the appellant. In payment of such loss the appel76 N.E.-22

lant, in October of such year, sent its draft for $2,000, payable to the order of the plain. tiff and said White, to its agent in Albany. The agent took the draft to the plaintiff, asked him to indorse it, and said that he, the agent, would also get White to indorse it, and from the proceeds thereof the plaintiff should have the sum of $1,000, and White the remainder. The plaintiff refused to indorse the draft, or to accept the sum of $1,000 on account thereof, claiming that he was entitled to receive the whole amount to apply on the rent. Then, as found by the trial court, the plaintiff said: "Let them [the insurance company] hold it if they don't. Let them hold it for me for my account, because it is going to apply upon this rent. I will take nothing less than $2,000." To this the agent replied: "All right, but I think you are foolish, because here is the money, and I would advise you to settle it up and take $1,000 and let Mr. White take $1,000. There is no use holding this money, because neither one of you can use this draft, and neither one of you can get it until both of you sign it, indorse it, and sign the receipt." The plaintiff then said that he would take nothing less than the $2,000, and the agent replied that "if plaintiff did not sign he would hold the check or send it back to the company, he did not know which, and that neither would get the money." Thereupon the agent took away the draft, and this ended the negotiation between him and the plaintiff. Subsequently the appellant, without the knowledge of the plaintiff, paid the amount of the loss to White on receiving from him a bond of indemnity. In March, 1903, the plaintiff instituted this action against White (upon whose death his executors were substituted in his place) and the appellant to recover the amount of plaintiff's interest in the insurance moneys, being the sum of $1,225. The trial court ordered judgment for the claim against White's executors, but dismissed the complaint as against the appellant. The plaintiff appealed from the judgment in favor of the insurance company.

As the order of the Appellate Division is silent as to the grounds for reversal, we must, under section 1338 of the Code, assume that it was based upon errors of law; the facts as found by the trial court being undisturbed. National Protective Ass'n v. Cumming, 170 N. Y. 315, 63 N. E. 369. There are no exceptions to any rulings of the court on the admission or rejection of evidence, and the only question presented to us is whether the facts as found by the trial court justified its conclusion of law that the complaint should be dismissed as against the appellant insurance company. Concededly the action was not instituted until nearly four years after the fire, and hence the condition of the policy that suit must be brought within a year after the fire was a bar to its maintenance, unless that condition was waived by the appellant, or by its conduct it became

estopped from enforcing the condition. The trial court did not find as a fact any waiver or estoppel on the part of the company. All it found was the conversation between the plaintiff and the appellant's agent, which has been narrated. Therefore, to sustain the order appealed from, it is not sufficient to show that as an inference of fact from this conversation the court might have found a waiver or estoppel. It is necessary to go further and to successfully maintain that the conversation conclusively established a waiver or estoppel. We are of opinion that the transaction between the plaintiff and the appellant's agent was insufficient to authorize a finding of waiver, much less to conclusively prove it. We shall not enter into any discussion as to the distinction in principle between waiver and estoppel, and we will concede that the conduct of an insurance company may be such as to preclude the company from insisting on the time limit for bringing suit provided by the policy. We find, however, nothing of that character in the present case.

The learned judge who wrote for the majority of the Appellate Division thought that the plaintiff might have understood and believed, from what was said to him by the agent, that the insurance moneys would be held as a fund for the payment of the loss pending the adjustment of the dispute between White and himself. Waiving the point that the trial court has not found either that the plaintiff did so understand, or that in reliance on such understanding he refrained from bringing his suit, it seems to us that there was nothing in the conversation that justified such a belief on the plaintiff's part. When the plaintiff, after his refusal to indorse the draft and accept the sum of $1,000, told the agent to hold the draft on his account, he was explicitly told that there was no use in holding it, that neither could get it unless they both indorsed it, that he did not know whether he would hold it or send it back to the company, and that neither the plaintiff nor White would get the money. It is difficult to see how this seemingly explicit declaration by the agent, that neither would get the money and that he might send the draft back to the company, can be construed into a promise to hold the draft pending the settlement of the dispute between the plaintiff and White, or how the plaintiff could have misunderstood its import. Nor is there anything to show that the plaintiff, by reason of this negotiation with the agent, forbore the institution of his suit. At the time the plaintiff refused the draft there was a term of seven months left in which he might have brought an action. It does not appear that subsequent to that time he did anything to adjust the dispute between White and himself, but waited till the expiration of nearly four years from the time of the fire before he commenced this action.

It is urged by the learned counsel for the respondent that it was not until that time that he learned that the money had been paid over to White. The payment to White, however, could not in any way affect the plaintiff's rights, nor give him any new cause of action. His complaint was, not that the money was paid to White, but that it was not paid to him. Nor is the other position taken by the counsel, that by the issue of its draft the appellant created a fund for the payment of the loss and created a new liability on its part, well founded. The draft had no validity or force until it was delivered, and when the plaintiff refused to accept it the situation was the same as if it had not been drawn. Moreover, a check or draft drawn in the ordinary form does not operate as an equitable assignment of the funds of the drawer in the hands of the drawee (Attorney General v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55) and cannot create a fund. If the plaintiff had accepted the draft, then his rights against the appellant would have been the same as those against any maker of a negotiable instrument, but until acceptance or delivery the draft created no new liability on the part of the company.

The order appealed from should be reversed, and the judgment of the Trial Term affirmed, with costs.

GRAY, BARTLETT, HAIGHT, VANN, and WERNER, JJ., concur. O'BRIEN, J., not voting.

Ordered accordingly.

(183 N. Y. 379) FOSTER v. CENTRAL NAT. BANK OF BOSTON et al.

(Court of Appeals of New York. Jan. 9, 1906.) 1. ASSIGNMENT-RIGHTS OF ASSIGNOR-ACTION ON ASSIGNED CLAIM.

Plaintiff sued to restrain the enforcement of a certain judgment and procure its satisfaction, and thereafter filed an amended complaint demanding judgment for certain sums theretofore paid by the plaintiff and one of the defendants to other defendants. Held, that a finding that prior to the amendment, but after action brought, plaintiff had assigned his property and the assignee had sold the claim to a third party, precludes any recovery by plaintiff, as any action on the claim, if he had any interest therein, must be brought by the assignee under Code Civ. Proc. § 449.

2. SAME-CONTINUANCE OF ACTION.

Where an action is commenced on a claim prior to its assignment to a third party, it cannot be continued in the assignor by virtue of Code Civ. Proc. § 756, authorizing the continuance of an action by or against the original party in case of a transfer of interest, where the original cause of action is essentially different from that created by the amended complaint filed after the assignment.

3. SAME AMENDMENT OF COMPLAINT.

Where the owner of a claim assigned it after action brought, a contention that an amended complaint filed after such time re

lated back to the cause of action, authorizing the assignor to recover, cannot be sustained; the assignor having no interest at the time of the amendment.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by William Foster, Jr., against the Central National Bank of Boston and others. From a judgment of the Appellate Division (106 App. Div. 616, 94 N. Y. Supp. 1146), affirming a judgment of dismissal of the complaint and of the affirmative claim of Rowland N. Hazard, plaintiff and said Hazard appeal. Affirmed.

Edward Winslow Paige, for appellants. Charles C. Van Kirk and Alfred Hemingway, for respondents.

CULLEN, C. J. For the disposition of this appeal it is necessary to state only the following details of the controversy: In September, 1880, one Marvin W. Sackett, a bondholder of the Lebanon Springs Railroad Company, brought an action in the Supreme Court of this state, on behalf of himself and other bondholders, substantially to enforce the foreclosure of the mortgage executed to secure said bonds and for the sale of the mortgaged property, a railroad lying partly in this state and partly in the state of Vermont. By an order made in that action, the receiver, who had been appointed to take charge of the road, was authorized to issue certificates to be a first lien upon the property, the proceeds thereof to be applied to the improvement of the road and the payment of certain debts. The respondents in the present case are the holders of such certificates. Subsequently a judgment of foreclosure was rendered in the suit, which directed that the sale be made subject to the payment of the undue principal and interest of said certificates, and that the proceeds of sale, after paying the expenses of the sale, be first applied to the satisfaction of the principal and interest of the certificates which were due. The appellants, the plaintiff Foster and the defendant Hazard, purchased at said sale for the sum of $155,000 subject to the payment of the unpaid certificates, and received the referee's deed.

Circuit Court on the petition of the defendants therein, and on March 24, 1887, a decree was entered in favor of the plaintiff for a sale of the property and for judgment against said defendants for any deficiency. The sale under this decree was postponed from time to time at the instance of Foster and Hazard, they paying the plaintiffs in that action various sums of money as a condition for postponement. Finally, on March 23, 1892, a sale was had under the decree of the United States Circuit Court, and William Foster, Jr., became the purchaser at such sale for the sum of $7,500. Now, to go back. In April. 1887, one Stevens, a holder of the bonds of the Lebanon Springs railroad, prior to the institution of the Sackett suit, brought an action in the Supreme Court of this state to review and set aside the judgment in the Sackett suit as fraudulent and invalid. To that action all the parties to the present suit were made parties. A judgment was rendered in that action reversing and setting aside all the proceedings in the Sackett action, and directing that a new sale of the mortgaged railroad be had. The decree also enjoined the Central National Bank and other certificate holders from enforcing the judgment they had obtained in the United States Circuit Court. Under that sale, which was made in May, 1892, the appellant Foster became the purchaser for the sum of $55,000. The present respondents, the Central National Bank and others, appealed from the judgment in the Stevens action. It was affirmed by this court and is reported in 144 N. Y. 50, 39 N. E. 68. On appeal to the Supreme Court of the United States, however, so much of the decree as enjoined the plaintiffs in the Circuit Court action from enforcing the judgment obtained therein was reversed. 169 U. S. 432, 18 Sup. Ct. 403, 42 L. Ed. 807. On March 16, 1892, the present action was brought by Foster against the Central National Bank and other certificate holders, setting forth in detail the various matters already recited, and praying as relief that the enforcement of the judgment in the United States Circuit Court be perpetually enjoined and restrained, and also that the judgment be discharged and satisfied. Hazard was made a defendant because his appearance as plaintiff could not be secured at the time. The case was not removed to the United States Circuit Court, and remained pending there for many years. In January, 1901, the cause was remanded to the Supreme Court of this state, and on March 13th of that year the plaintiff served an amended complaint in which, instead of

judgment for the recovery of the sums paid by himself and Hazard to the certificate holders, including both the sums paid on the sale under the Sackett suit and those paid on account of the judgment in the United States Circuit Court. The answer of the defendant alleged, and the trial court