duty by force of contaact, and to the latter none by force of the law. But this is not the posture of affairs existing at the time of this accident. The declaration avers, and the fact of course is admitted by the demurrer, that the defendant, in the exercise of its volition, made repeated inspections of the boiler in question, and furnished the required certificates for the guidance of the engineer of the assured. No one can doubt that by such a course of action a duty in favor of the assured was imposed on the defendant, by the operation of the contract itself, to act with ordinary skill and care, both with respect to its inspection and its certificate. It is deemed that there is no room for doubt that, for the proximate damage occasioned by the absence of such care and skill, the defendant became answerable to the assured per contructu as it had stipulated for such care and skill by the terms of its contract, read in the light of legal rules. But this is not the aspect of the transaction now presented for scrutiny. It is obvious that the plaintiff cannot rest his right to sue on the contract existing between the defendant and the Ivanhoe Paper Mill Company. To that engagement he is an absolute stranger, and there is no stipulation in it that was designed for his particular benefit. Indeed, it is not per. ceived that this policy of insurance has any effect in this case, except inasmuch as it may explain and characterize the conduct of the defendant with respect to this steam boiler. Its connection with it, as it is exhibited in the record before the court, forms the pith of the present inquiry. This is plain upon the surface of things. The boiler, unless properly handled, was a dangerous thing, and, according to the legal rule established by the English courts, the proprietor of such an instrument is deemed an indemnifier for all losses, sufficiently proximate, occasioned by its use. This doctrine is thus stated by Mr. Horace Smith in his Scientific Treatise on the Law of Negligence, page 8. After adverting to the contract which the law raises between the common carrier and those who intrust their goods to him in the way of his business, this author proceeds: With regard to such contracts, express or implied, no question of negligence arises; and the same holds with respect to cases which may be said to be in the nature of assurance, viz., where a person brings upon his land some dangerous thing, such as fire or water, or a dangerous animal; for he is bound, as we shall see, to keep it at home at his peril. In all these classes of cases something more than 'care,' however diligent, is demanded, viz., absolute indemnity." The American decisions maintain a less stringent doctrine. Where the dangerous thing is not in its nature and under the circumstances a nuisance per se, the maintainer of it is not, in any sense, an insurer against the loss that it may accidentally cause. He is responsible only for negligence or want of skill in its management or use. Nevertheless as the thing employed is threatful of peril to others, and as he is using such thing for his private benefit, it has been properly established that the proprietor must exercise a high degree of care; and that, if he omits to do so, he will be answerable for the ill consequences to others that are the natural and proximate result of such default. Lord Fitz Gerald, referring to an operation that the defeudant in the case had been engaged in, and which was of a dangerous tendency, thus defines the legal rule: The law" does declare that, under such a state of circumstances, it was the duty of the defendant to have used every reasonable precaution that care and skill might suggest in the execution of his works, so as to protect his neighbors from injury, and that he cannot get rid of the responsibility thus cast on him by transferring that duty to another. He is not in the actual position of being responsible for injury, no matter how occasioned, but he must be vigilant and careful; for he is liable for injuries to his ueighbor caused by any want of prudence or precaution, even though it may be culpa levissima." Hughes v. Percival, L. R. 8 App. Cas. 455. This is the legal principle copiously illustrated by citations in the text-books. 2Shearm. & R. Neg., § 689. There can be no doubt, in view of this legal rule, that for the present accident the Ivanhoe Paper Mill Company, on the assumption of the truth of the facts laid in the declaration, would have been responsible to the plaintiff for the damage done to his property. The boiler was a highly dangerous machine when in use. It was the plain duty of the company to have it inspected at proper periods, and the case shows that if that had been done, the calamity would have been avoided. That in this state of affairs an action would have lain against the Ivanhoe Company is indis putable. And this responsibility is the effect of the obligation that arose de jure, out of the situation, be ing comprehended in the maxim, sic utere tuo ut alienum non lædas. Having this boiler in use, conditioned as described, the paper company could not, by any device, free itself from the duty of operating it with the utmost care and skill, nor from the liability to indemnify those who should be injured, in a legal sense, by the omission of such care and skill. To this extent the legal status is clear. The question is whether the duty thus defined became incumbent on the defendant to such a degree as to place upon it a responsibility of a similar kind, for the damage now in question. 66 It does not appear to be doubtful, from the statements in the declaration, that it was an essential part of the duty of the paper company, in the safe and skillful management of this boiler, to have it examined and tested, from time to time, by a person of requisite knowledge. It was this necessary function that the defendant entered upon the execution of. As has been stated, the insurance company was not compelled, by force of its contract, to the performance of this supervision; but it is undeniable, that as it proceeded to do so, it thereby became bound by the express terms of its contract to disclose to the assurer any defect affecting the safety of said boiler," and to issue a certificate defining the load that could be put on the safety-valve. By the course thus taken it is not at all difficult to mark out the reciprocal rights and obligations of the parties to this policy, inter se; but such exposition is, at present, comparatively of little account, as the injury is not with respect to the force of this contract, but altogether as to the legal effect of the acts done under it by the defendant, so far as they affect the rights of the plaintiff, who is a stranger to it, What this defendant did was this: It co-operated with the owner of this dangerous instrument in its management, in a particular indispensable to its safe use, and it thereby in that degree constituted itself the agent or the substitute of such owner. It performed a series of acts that could not be performed by the owner without the responsibility just mentioned; and as such responsibility belonged, not to the ownership of the machine, but to the function of operating it, it does not seem that any one could perform such function without incurring the responsibility. Very plainly the defendant stood within the spirit of the rule that laid upon the proprietor of the boiler the duty of exercising care and skill in its use. That rule is but the crea ture of social justice. That a man cannot do an act for his own benefit or pleasure, the natural consequence of which will be detrimental to the equal rights of another, is an equitable principle of importance to the common welfare; and the rule that one man cannot with impunity assist another in doing such wrongful act appears to be a necessary corollary to the proposition, unless such proposition is to be regarded as purely formal and arbitrary. In the present instance this boiler burst and injured the adjacent property of the plaiutiff, solely, as the facts now appear, by reason of the omission of a proper test and inspection. The defendant, by its inspector, was in the actual performance of that function, and it was its agent that was morally and primarily at fault. It would seem therefore quite unreasonable to say that the defendant, whose servant the inspector was, is not liable; but that the Ivanhoe Paper Mill Company, whose servant the inspector was not, is liable. The plaintiff was the owner of the adjacent property near to the place of this boiler. The machine, unless carefully operated, was dangerous to every thing in its immediate neighborhood. No one could open his eyes and not see this situation, for, in this respect, res ipsa loquitur. Plainly therefore the owner of the machine, even according to the limited rule adopted by the courts of this country, was answerable to the plaintiff for the results of the careless management of such machine; and so, for, a like reason, as we think, must every person be similarly responsible who participates in a substantial degree in such management, whether he be a contractor with the owner or his servant, or even if he be a mere volunteer. The situation itself creates the duty to exercise care and skill in a high degree in every one who meddles in a matter fraught with such peril to the property of another. The defendant, the insurance company, as soon as it took part, practically, in the management of this machine, became subject to a duty in that particular, by virtue of its contract with the Ivanhoe Paper Mill Company, to conduct itself with care and skill, and by virtue of the law to a similar duty toward the plaintiff; and it is the violation of this latter duty which, we think, forms a legal foundation for this action. deemed to attach in every case where a highly dan- It is conceived that the well-known case of Heaven And it would seem that there is a broader ground than the one above defined, on which the present case can be based. It is this: that in all cases in which any person undertakes the performance of an act, which, if not done with care and skill, will be highly dangerous to the persons or lives of one or more persons, known or unknown, the law, ipso facto, imposes, as a public duty, the obligation to exercise such care and skill. The law hedges round the lives and persons of men with much more care than it employs when guarding their property, so that, in this particular, it makes, in a way, every one his brother's keeper; and therefore it may well be doubted whether in any supposable case redress should be withheld from an innocent person who has sustained immediate damage by the neglect of another in doing an act which, if carelessly done, threatens, in a high degree, one or more persons with death or great bodily harm. Such misfeasances, if they result fatally, are indictable crimes. When they inflict particular damage upon individuals, they should, it is conceived, be actionable. There are many decisions that appear to rest on this basis. A typical case is that of Thomas v. Winchester, 6 N. Y. 397. The facts were that a druggist had carelessly labelled a deadly poison as a harmless medicine, and who had sold it to another druggist, from whom the plaintiff had obtained it. The health of the plaintiff had been injured by taking some of the poison, having been misled by the deceptive label. The action was sustained, founded on these facts. It is obvious that this case is embraced within the terms of the proposition just recited. If the plaintiff had died by reason of the taking of the poison, the original vendor would have been indictable. He was guilty therefore of a breach of a public duty; and, inasmuch as the plaintiff had sustained a special injury by such wrong, her right of suit was vindicated. Similarly, the principle is exemplified in Parry v. Smith, 4 C. P. Div. 325. A gas-fitter in repairing a gas-meter supplied a temporary pipe. The plaintiff, a servant, in the course of his employment lighted the gas, and was injured by the negligence of the gasfitter. The plaintiff recovered, on the ground that his right of action was founded on the duty that was There is no reason to doubt, from the tone of the judicial discussion in the case, that the action would have been deemed to be sustainable if it had been shown that the chandelier in question had been suspended in the center of a theater, or other place of public resort, so that if it fell it would have been almost certain to kill or wound a number of persons. For the non-performance of a public duty of this kind, which causes a particular damage to the person or property of another, such result being sufficiently proximate to its cause, and being its obvious product, we think an action will lie. The demurrer must be overruled. 1 NEW YORK COURT OF APPEALS AB- ally was liable to the sureties upon the boud. But it was expressly stated by the court, in its opinion, that it did not deem it important to determine the relation which the plaintiff, individually, as one of the princi pals in the bond, bears to the sureties in reference to the default. The question in reference to the liability of executors and administrators for the default of each other, independent of any bond, is well settled by the authorities. Each of several executors or administra tors has the power to reduce to possession the assets and collect all the debts due the estate, and is respon sible for all that he receives. The payment of money or delivery of assets to a co-executor or co-administrator will not discharge him from liability; for, having received the assets in his official capacity, he can discharge himself only by a due administration thereof in accordance with the requirements of the law. Consequently, one joint executor or administrator is not liable for the assets which come into the hands of the other, nor for the laches, waste, devastavit or mismanagement of his co-executor or co-administrator, unless he consents to or joins in an act resulting in loss to the estate, in which event he will become liable. In other words, co-executors and co-administrators may act either separately or in conjunction. They are jointly responsible for joint acts, and each is separately an ADMINISTRATOR - BOND DEVASTAVIT. -The fact that the sole heir is appointed one of the administrators of the estate, and executes a joint and several bond with his co-administrator for the faithful discharge of their duties, does not prevent him from recovering from the sureties on the bond for a devastavit committed by his co-administrator. The execution of the bond as principal does not render the heir liable as surety for the default of his co-administrator. This question has received attention in numerous reported cases in the different States, in some of which it has been held that one executing a bond is liable for the default of his co-principal. Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 id. 535; Newton v. Newton, 53 N. H. 537; Ames v. Armstrong, 106 Mass. 15; Boyd v. Boyd, 1 Watts, 365; Bostick v. Elliott, 3 Head, 507; Babcock v. Hubbard, 2 Conn. 536; Caskie v. Harrison, 76 Va. 85; Jeffries v. Lawson, 39 Miss. 791; Braxton v. State, 25 Ind. 82; Moore v. State, 49 id. 558; Eckert v. Myers (Ohio), 15 N. E. Rep. 862. In several of these cases the question appears to have received but slight attention. Some have cited as authority the case of Brazer v. Clark, supra, of which we shall speak later, while others have been overruled by later decisions.swerable for his separate acts and defaults. Bruen v In the case of Boyd v. Boyd the administrators filed a Gillett, 115 N. Y. 10; Croft v. Williams, 88 id. 384; Orjoint inventory, and it was held that they were jointly miston v. Olcott, 84 id. 339; Adair v. Brimmer, 74 id. and severally liable for the whole amount of the per-539; 2 Woerner Adm'n, § 348; Brandt Sur., § 490. sonal property described in the inventory upon the What was the trust imposed in her as administratrix? joint and several bond which they had given. In the It was to administer upon the money and assets com. case of Ames v. Armstrong it was held that the bonding into her hands, and for which she became personwas binding upon both of the executors as to all the assets included in their inventory which had come into their joint possession. In the case of Brazer v. Clark, two executors gave a joint and several bond with sureties. One died, and afterward the survivor committed waste, which the sureties upon the bond had to pay. It was held that they had no right of action for indemnity or contribution against the heirs or representatives of the deceased executor; and to the same effect is the case of Towne v. Ammidown. It will be observed that these cases have chiefly been disposed of upon questions of liability outside of the boud; and in the last two cases the decision was, in fact, against the right to recover. The Indiana cases to which we have referred have been expressly overruled in the case of State v. Wyant, 67 Ind. 25, in which case it was held that where two persons, as administrators, execute a single bond with sureties, such boud must be construed as if each of the principal obligors therein had executed a separate bond with the same sureties, subject to the same conditions; and in such a case, after the resignation of one of the administrators, the other may maintain an action against him and his sureties upon the bond for breaches committed by him alone. In our own State but one case has been found in which the question appears to have been considered; and that was the case of Kirby v. Taylor, first reported in 6 Johns. Ch. 242-253, wherein Chancellor Kent remarks that it was probably not the intention of the bond that Thompson should himself be considered as a surety for his co-guardian." The same case was again reported in Hopk. Ch. 309-331, in which Chancellor Sanford considers the question in an elaborate opinion, reaching the conclusion that a principal in a guardiau's bond is not liable to the sureties for the default of his co-principal. This question was not considered in the case of Tighe v. Morrison, 116 N. Y. 263; and in the case of Sperb v. McCoun, 110 id. 605, the question was as to whether one administrator could maintain an action upon the bond against the sureties to recover the amount of the devastavit of a co-administrator, and it was held that such action could be maintained even upon the assumption that the plaintiff individu ally liable, and for such assets as came into their joint possession for which they became jointly liable to administer and account, and not to execute the trust as to money and assets which came into the exclusive control and management of her co-principal, over which she had no jurisdiction or control. They were to obey all orders of the surrogate touching the ad ministration of the estate committed to them. What orders was she to obey? Those that were addressed to her, not those that were addressed to her co-administrator. The object of an administrator's bond is to enforce or insure the discharge of the duty reposed in the persons appointed. It was not intended by the statute, in requiring such a boud to be executed, to change the liability or duties of the persons appointed from that which existed under the provisions of the statute independent of the bond. The bond was not intended to vary their obligation or their rights and duties as are defined by law. Their duties were the same after the boud had been given as they would have been had no bond been required or executed. They were, consequently, jointly liable for joint acts, and severally liable for their own acts. Rachel Depew and Winant each sigued the bond as principal. Neither signed it as surety. The defendant signed as surety, and as such he became liable for the joint acts of the principals, and for the individual defaults of each. It is true they joined in executing a single bond jointly with sureties. They doubless had the right to execute and file separate bonds; but this was unnecessary, for their act in executing the one instrument should be construed as if they had executed separate bonds. Joint administrators may be willing to undertake the trust reposed in them when each knows that he is responsible only for his own acts and those in which he joins with his associate, when he would not be willing to become surety for the separate acts of his colleague. The claim that joint liability for the acts of each other under the bond will promote diligence on the part of the principals does not appear to us to be well founded. It may be true that sureties are at times without power, by timely intervention, to prevent waste by one of several administrators; but such want of power may be equally true in reference to the other joint administrators. As we have seen, one may collect a debt or take into his possession an asset; and, having reduced it to possession, he must be responsible for the proper administration of it. His associate cannot demand or recover it from him; and, should he see fit to abscond or commit waste without the knowledge of his associate, such associate would have no other, further or greater power to prevent it than the surety. Second Division, April 15, 1890. Nanz v. Oakley. Opinion by Haight, J. Follett, C. J., and Vann, J., dissenting. Reversing 37 Hun, 495. | CANALS — DAMAGES – JURISDICTION.—(1) Laws of New York, 1870, chapter 321, providing for the recovery from the State of damages sustained from its canals, does not confer a new jurisdiction to hear claims for the taking of a fee in lands, or for the appropriation of a continuous and permanent easement therein for canal purposes. Following Stewart v. State, 11 N. E. Rep. 652. (2) The construction of a permanent dam to increase the depth of the water, and the consequent overflow upon adjoining land, is the taking of a permanent easement by the State for the use of the canal, and falls within the act of New York, 1830, providing that, when any lauds are overAPPEAL-EXCEPTIONS-REVIEW.-(1) The denial of flowed by the erection of any dam by the canal coma motion for a new trial on the judge's minutes, bemissioners, it shall be the duty of the canal appraisers cause the verdict is against the evidence, is not the to make a just and equitable settlement, and requir subject of an exception; and an order of the Generaling the claim to be presented within one year. (3) The Term affirming such a denial will not be reviewed by failure to present the claim within one year after the the Court of Appeals, though an appeal from the order completion of the dam is a waiver of all right of damand an intention to review it are contained in the noages against the State. Second Divisiou, April 15, tice of appeal from the judgment. (2) The Code of 1890. Benedict v. State. Opinion by Brown, J. Civil Procedure of New York, section 1350, which provides that, at the election of either party, the Court of Appeals, on appeal from a final judgment of the General Term, may review its order refusing a new trial, is applicable only to cases where exceptions have been taken. (3) The Code of Civil Procedure of New York, section 1337, which provides that an appeal to the Court of Appeals from a final judgment, or from an order granting or refusing a new trial, brings up for review every question determined by the General Term, affecting a substantial right, and not resting in discretion, does not dispense with the necessity of exceptions to the determinations sought to be reviewed. (4) On the question whether defendant was the agent of plaintiffs or his partner in selling the latter's interest in the business to plaintiffs, evidence that on a former occasion he, as agent of his partner, solicited another to buy such interest, is not admissible either to show such agency in the present case, or to contradict the partner who denies it. April 15, 1890. Duryea v. Vosburgh. Opinion by Peckham, J. Reversing 49 Hun, 609. OPINION EVIDENCE-EXCEPTIONS.-In an action to recover damages for the maintenance of defendant's elevated railroad in the street in front of plaintiff's premises, questions put to plaintiff's lodgers, as to what the value of their respective apartments would be if defendant's railroad had not been erected, were objected to as incompetent, irrelevant and immaterial, and because the witnesses were not experts. Held, that the objections were insufficient to bring up for review the question whether the opinions of the witnesses were admissible on the subject of the rental value of the premises. Following McGean v. Railway Co., 22 N. E. Rep. 957. Second Division, April 15, 1890. Crawford v. Metropolitan El. Ry. Co. Opinion by Haight, J. (1) CARRIERS -PASSENGERS-DEFECTIVE APPLIANCESEVIDENCE. A passenger was injured by the breaking of the spindle of the draw-head of a car. In an action to recover for the injuries, the evidence on the part of the company showed that, to examine the spindle, it was necessary to pull the car apart, and take out the draw-head; that a spindle of a draw-head had not been known before to break by the use made of it in running trains; and that, while a car was ordinarily used for twenty-five years, the spindle in question had been in the car only two years. There was evidence that there was a flaw in the spindle, at the point where severed, three-fourths of an inch in depth, and that no inspection had ever been made of the spindle while it was in use. Held, that the finding of the jury that defendant had not used due care in examining the drawbar would not be disturbed. While a railroad company is not an insurer of the safety of its passengers, it is bound to use a high degree of skill and vigilance to guard against accidents which may be attended with injurious consequences to them. This duty is not discharged without the utmost care and diligence to secure the safety of its passengers, and this vigilance is to be exercised by the company to see that its road and appliances used in operating it are and remain in good condition and free from defects; and a latent defect which will relieve it from responsibility is such, only, as no reasonable degree of human skill and foresight could guard against. Hegeman v. Railroad Corp., 13 N. Y. 9; Bowen v. Railroad Co., 18 id. 408, Brown v. Railroad Co., 34 id. 404; Caldwell v. Steamboat Co., 47 id. 282; Pennsylvania Co. v. Roy, 102 U. S. 451. It is however urged that the earlier rule adopted by the court as to the degree of vigilance required of a rail. road company in the conveyance of passengers is not sustained by the later adjudications, and reference is made to some cases. It may be observed that those so cited do not relate to the machinery or the appliances and apparatus which constitute and sustain the operative means of conveyance and transportation, but to other structures provided by the carrier, and the manner of their construction, and to which a less degree of care is applicable. Such are the cases of Hayes v. Railroad Co., 97 N. Y. 259; Lafflin v. Railroad Co., 106 id. 136; Kelly v. Railroad Co., 109 id. 44; Palmer v. Pennsylvania Co., 111 id. 488; Kelly v. Railway Co., 112 id. 443. The general doctrine of the earlier cases in this State on the subject does not seem to have been modified by the later ones, but has quite uniformly been approved, so far as applicable. Coddington v. Railroad Co., 102 N. Y. 66. Second Division, April 15, 1890. Palmer v. President, etc., Delaware & Hudson Canal Company. Opinion by Bradley, J. Affirming 46 Hun, 486. REFEREE'S REPORT LIEN — EVIDENCE. The Court of Appeals cannot review a finding by a referee as being against the weight of the evidence, but may review a finding made without any evidence tending to sustain it, as it is a ruling upon a question of law. (2) In an action to foreclose a lien claimed by plaintiff, as foreman, under Laws of New York, 1878, chapter 315, against moneys retained by the city of New York under a contract to build a sewer between it and defendant, where it is claimed by the answer that plaintiff was defendant's copartner in the contract, it is proper to show that plaintiff assisted in making the calculations upon which the bid for the contract was made, and that the work was carried on the same as if done under other contracts held by the parties as copartners. Second Division, April 15, 1890. Healy v. Clark. Opinion by Haight, J. fense to an action brought to recover the price of the work. Jewell v. Schroeppel, 4 Cow. 564; Gallagher v. 23; affirmed sub nom. McNeven v. Livingston, 17 Johns. 436; Leake Cout. 850; Pol. Cont. 464; 2 Whart. Cont., §§ 887, 888. A party to a contract containing a provis ion that it shall not be altered, modified or changed, except by a written agreement signed by both parties, may by conduct estop himself from enforcing the provision against a party who has acted on and relied upon the conduct. Second Division, April 15, 1890. Dunn v. Steubing. Opinion by Follett, C. J. Affirming 55 N. Y. Super. Ct. 533. CONVEYANCES-CHATTEL MORTGAGE TO WIFE-A chattel mortgage executed by a debtor to his wife to secure a bona fide indebtedness is valid as against his other creditors, and it is immaterial that the statute of limitations had run against a portion of the debt thus preferred. When the wife, by proper and sufficient proof, shows that her husband owes her, she is entitled to the same remedies, and has the same standing to enforce any security for the payment of the debt that she may have received, as any other creditor. The question of fraudulent intent is made by the statute one of fact, and not of law; and, after full investigation of the origin and history of the debt, to secure which the-transfer was made, and the circumstances attending the transfer itself, from which a fraudulent intent was sought to be shown by the defendant, the referee has found the facts for the plaintiff. It is not claimed that any of his findings are unsupported by evidence, and therefore this court has no power to review them. Assuming, as we must, that the referee expresses the truth in regard to the transaction, the case was correctly decided. The result reached in the court below is in harmony with a recent decision of this court in a case involving facts somewhat similar, and like principles of law. Stanley v. Bank, 115 N. Y. 122. April 15, 1890. Manchester v. Tibbetts. Opinion by O'Brien, J. Affirming 49 Hun, 612. CARRIERS-PASSENGERS-ASSAULT BY SLEEPING-CAR PORTER.-(1) The porter of a sleeping-car on a passenger train, who is hired and paid by the sleeping-car | Nichols, 60 N. Y. 438: Lawrence v. Dale, 3 Johns. Ch. company, in respect to his dealings with passengers is the servant of the railroad company, which is responsible for his acts to the same extent as if he was directly employed by it. Following Thorpe v. Railroad Co., 76 N. Y. 406; Pennsylvania Co. v. Roy, 102 U. S. 451. (2) A passenger train was detained by a washout, and it became necessary to transfer the passengers to another train. The porter of the sleeping-car in which plaintiff had a section took plaintiff's baggage, and conducted him into an ordinary coach of the new train, and informed him that a sleeping-car would probably be attached. Plaintiff then requested the porter to return the sleeping-car ticket which he had purchased of and surrendered to him, or to state to the sleeping-car conductor of the new train that he was entitled to a berth. The porter refused, an altercation ensued, and the porter assaulted plaintiff. Held, in an action against the railroad company to recover for the injuries inflicted, that whether, at the time of the assault, the porter was in the performance of his duties as defendant's agent, should have been submitted to the jury. Buffett v. Railroad Co., 40 N. Y. 168; Tousey v. Roberts, 53 N. Y. Super. Ct. 446, 447; Althorf v. Wolfe, 22 N. Y. 355; Isaacson v. Railroad Co., 94 id. 278. (3) A common carrier is liable for the willful and malicious acts of its servants toward or upon a passenger. Following Stewart v. Railroad Co., 90 N. Y. 588. In that, Judge Tracy says: By the defendant's contract with the plaintiff, it had undertaken to carry him safely, and to treat him respectfully; and, while a common carrier does not undertake to insure against injury from every possible danger, he does undertake to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. * A common carrier is bound, so far as practicable, to protect his passengers, while being conveyed, from violence committed by strangers and co-passengers; and he undertakes, absolutely, to protect them against the misconduct of its own servants engaged in executing the contract," or, as otherwise therein expressed, "from an assault committed upon a passenger by a servant intrusted with the execution of a contract of a common carrier." Weed v. Railroad Co., 17 N. Y. 362. These and numerous other cases hold that no matter what the motive is which incites the servant of the carrier to commit an unlawful or improper act toward the passenger during the existence of the relation of carrier and passenger, the carrier is liable for the act, and its natural and legitimate consequences. Nieto v. Clark, 1 Cliff. 145; Com. v. Power, 7 Metc. 596; Goddard v. Railroad Co., 57 Me. 202; Craker v. Railroad Co., 36 Wis. 657; Railroad Co. v. Flexmau, 103 Ill. 546. Second Division, April 15, 1890. Dwinelle v. New York|lution recited that the notes were to be issued to pay Cent. & H. R. R. Co. Opinion by Potter, J. Reversing 45 Hun, 139. * * CONTRACT -BREACH- TIME- QUANTUM MERUIT.— Provisions in a contract that time shall be of the essence thereof, and a failure to perform all its conditions within the time limited for completion shall defeat any right to recover for labor performed thereunder, and that the agreement shall not be altered except by a writing signed by both parties, are no defense to an action to recover the price of the work, where the contractor is allowed to continue the work after the day fixed for its completion. Upon the failure of the plaintiff to perform by the day fixed, the defendant might have insisted on his strict legal rights, and then put an end to the contract; but this he did not do, but permitted the plaintiff to continue the work, and for this reason he cannot now insist on the delay as a de CORPORATION NEGOTIABLE PAPER INNOCENT HOLDER. Where one receives from the president of a corporation, and pays full value for, a negotiable note thereof payable to itself and indorsed by the president, as such and individually, with notice that the proceeds are to be applied to the discharge of a personal debt, he is put upon inquiry as to the authority by which it was issued and negotiated; but he is nevertheless a bona fide holder holder when, if he had inquired, he would have discovered the record of an apparently legal vote of the directors authorizing the issue to pay a debt recited to be due their president. It furnished information therefore that Kneeland was using the notes in the manner expressly authorized. It constituted an appearance of authority upon which a purchaser for value could safely rely. True the reso Kneeland, president, a salary, but it did not pretend to give or fix a salary. It asserted an indebtedness for salary, and one dealing with a railroad corporation, which has a right to pay its president a salary, and ordinarily does, is not bound to go behind such an assertion as was made by the defendant's directors, for the purpose of ascertaining whether the salary is legally payable. A different rule would be impracticable, and would substantially incapacitate third persons from taking the paper of, or contracting with, corporations. The principles enunciated in Farmers and Mechanics' Bank v. Butchers and Drovers' Bank, 16 N. Y. 125: Bank v. Aymar, 3 Hill, 262; Bank v. Monteath, 26 N. Y. 505, are applicable to the rule we have stated. Does the purchaser of a note, under circumstances which devolve upon him the duty of inquiry, assume a greater risk than the burden of proving that which would have protected him had he diligently inquired, |