Held, 1st. That the action was rightly brought, inasmuch as the agreement, if it did not constitute a partnership between the two companies, showed that the G. N. Co. became the agents of the defendants to make the contract for the carriage of the cow. 2d. That the condition in the contract did not relieve the defendants from liability for negligence on the part of their servants in delivering the cow. 3d. (by Blackburn and Lush, JJ.; Mellor, J., dissenting.) That the inference to be drawn from the facts was, that there was negligence on the part of the defendants' porter; and that they were, therefore, liable to the plaintiff for the loss of the cow. Gill v. The Manchester, Sheffield, and Lincolnshire Railway Co., L. R., 8 Q. B. 186.

WILL.

Execution: mark: acknowledgment. -The evidence of one attesting witness (the other being dead) proved that he was called into the room of the deceased, and asked by a third party, who had the will in his hand at the time, to witness the signature of the deceased. A mark or cross was then on the paper at the foot of the will. The witnesses signed their names. The deceased was present, and within hearing, but did not make any observation, and the will was not read to or by him in the presence of the witnesses. The writer of the will, who had asked the witnesses to sign their names, was not called, and no proof was offered of his death.

Held, that the evidence failed to prove that the deceased acknowledged his signature in the presence of witnesses. Morritt v. Douglas, L. R., 3 Prob. and Div. 1.

GENERAL TERM ABSTRACT.

SUPREME COURT - FIRST DEPARTMENT, MAY, 1873.

EXECUTORS AND ADMINISTRATORS. See Wills.

FRAUDULENT CONVEYANCES.

1. When set aside.-Defendant G. owned certain land, and on November 5, 1869, conveyed it to defendant K. to whom he was indebted in the sum of $2,300, by a deed which recited the consideration as $20,000, of which a mortgage on the land for $10,000, which was assumed by K., formed part. Plaintiff recovered judgment against G. January 21, 1870, for $1,074.75, and in this action to set aside the said conveyance to K. had judgment declaring the property to belong to G. and to be subject to the payment of his debt. K. also paid about $700 for interest on the mortgage, taxes and assessments, making the consideration for the land $13,000.

Held, that there being no evidence to charge K. with a fraudulent intent, and conceding G. to have acted fraudulently, the judgment was erroneous. The conveyance to K. was valid as between him and G.; plaintiff was entitled only to have the land sold and his claim paid with interest and costs. Judgment reversed and new trial ordered. The case of Chautauqua County Bank v. Risley, 19 N. Y. 369, examined. Orr v. Gilmore & Kissick. Opinion by Ingraham, P. J.

2. Evidence of fraudulent intent.-The declaration of G. made after the conveyance were inadmissible except to show fraudulent intent on G.'s part; they were not evidence to charge K. with fraudulent intent. Ib.

INSURANCE.

1. Security insurance notes: statute of limitations.— Defendants made and delivered to the Columbian Ins. Co., four notes, one dated November 1, 1860, at twelve months after date for $500, another of same date at seven months after date for $500, another of same date at seven months after date for $1,000, and another dated January 14, 1861, at seven months after date for $1,330. The notes were delivered to the company as security notes, in advance of premiums to be earned upon policies to be issued by the company to the defendants, under the provisions of section 5, Laws of 1849. No policies were issued to defendants, and no premiums earned by the company. The charter of the company authorized it to receive notes for premiums on policies thereafter to be issued, and make all notes thus received available for any purpose connected with the business of the company, and provided that such notes should be payable within twelve months from date. In January, 1866, the company became insolvent, and plaintiffs, having become appointed receivers of its assets, began this action February 2, 1869. Osgood, etc., Receivers of Columbian Insurance Co. v. Strauss. Opinion by Fancher, J.

2. Defendants moved to dismiss the complaint on the grounds that a recovery on the notes was barred by the statute of limitations, and that the note for $500, at twelve months after date, was not such as the company was authorized to take. The court allowed defendants' motion to exclude from the recovery the twelve months note for $500, since the days of grace extended its payment beyond the time allowed, but denied the motion for dismissal, based on the defense of the statute of limitations. The plaintiffs claim that the notes are to be read in connection with their charter, and therefore did not become due until January, 1866, when the cash capital of the company was exhausted. On appeal from judgment in favor of plaintiffs for the last-named three notes:

Held, that the position of plaintiffs is untenable. The statute gave the notes validity, and they were lawful obligations of the makers. The time of payment is made absolute, according to the terms of the notes, and they would be void if the plaintiffs' construction be adopted, for the time of payment would be extended beyond the period allowed by statute. Judgment reversed. Ib.

2. Rules given as to "assessment notes" do not apply to the notes in question. Ib.

Notes and bills: obligation of married women not connected with separate estate. - Defendant, a married woman, carried on business in her own name, assisted by her husband as agent, and in that business her notes were sometimes made. Defendant's husband, with her consent, applied for insurance on his own life, and in payment of the first premium, drew a note to which, as agent, he signed defendant's name as maker and gave the note to C, who was to procure the policy for him. C did not take out a policy but converted the note to his own use and sold it to plaintiff, who took the same before maturity, bona fide and without notice of want of consideration or of the misapplication by C. In an action on the note, which bore no evidence that

defendant charged or intended to charge her separate estate, the complaint was dismissed.

Held, that a married woman cannot make a note unconnected with her separate business or property, and a person taking such a note, though bona fide and for value, cannot recover upon it against her. The case of The Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613, examined and distinguished from this. Judgment affirmed. Bogert v. Gulick. Opinion by Fancher, J.

MORTGAGES. See Contracts.
NEGLIGENCE.

Liability of lessee failing to comply with the covenant to repair.-Defendant leased Pier No. 34, North river, and covenanted in the lease to make all ordinary repairs to the premises, such as replacing spring spiles, patching worn surfaces, etc., landlord to make all extraordinary repairs, as sheathing the whole surface of the pier, etc. Defendant did not occupy the pier, but relet it. Plaintiff brings this action for injury sustained by his horse on the pier. The judge charged the jury that "if defendant had complied with his covenant and the horse's foot would still have gone through, he is not responsible; it is for you to say whether, if defendant had complied with his covenant, the horse's foot would have gone through." Plaintiff had a verdict. Held, that the charge was correct. Judgment affirmed. Clancy v. Byrne. Opinion by Fancher, J.

NEW YORK CITY.

1. Taxes and assessments: validity of contracts with city. ---On October 4, 1869, the board of assistant aldermen of the city of New York concurred in a resolution theretofore adopted by the board of aldermen, directing the paving of Fourth and Fifth streets in said city from Bowery to Mangin street with a patent pavement. The resolution was vetoed by the mayor, but was adopted by both boards of the common council on October 25. Pursuant to an advertisement by the Croton aqueduct board, inviting proposals for said work, the relator sent the only proposal received for the same, which was opened January 10, 1870, and the contract awarded to relator. On December 2, 1869, a resolution was adopted by the common council and approved by the mayor, which amended said ordinance of October 25, 1869, by striking out "Mangin" street, and inserting "Lewis" street. The commissioner of public works refused to make the contract, and relator applied for a mandamus to compel the execution of the same. Relator's proposal was submitted to the commissioners appointed under the act of 1872, chapter 580, as an award of a contract from Bowery to Lewis street, and they certified that they were satisfied there had been no fraud in the award. The application for a mandamus was denied and relator appealed.

Held, that the Croton board had no right to award a contract which had been made upon proposals to do the work in a different way from that which was contemplated when the notice was published for receiving such proposals; no assessment made under such an award would have been valid. The commissioner's certificate was not given as to any contract then existing, or which had then been awarded, and gave no validity to the contract. The People ex rel. Trundy v. Van Nort, Commissioner, etc. Opinion by Ingraham, P. J.

2. Contracts for patented articles.-The provisions which entitle the person making the lowest estimate to have the contract awarded to him do not apply to estimates for patented articles or mode of work. Ib.

NOTES AND BILLS.

Undue influence to obtain indorsement.-In January, 1868, the plaintiff, while a partner of one O., loaned to him certain certificates of stock which O. sold without plaintiff's knowledge, and appropriated the proceeds. Plaintiff endeavored to collect the money without avail, and had O. arrested, but released him on his wife's promise to have him at plaintiff's office the next day. The next day O., his wife and wife's mother came to plaintiff's office, where a note was made by the wife and indorsed by her mother. The note was protested and this action brought thereon against the indorser. On the trial the defendant testified that plaintiff threatened to send O. to the State's prison unless she indorsed the note. Plaintiff denied this, but a letter written by him after the protest contained said threat. The judge charged the jury that there was no evidence of duress or undue influence, and submitted to them: 1st, whether the note was given for compounding of a felony; 2d, if not given for the compounding of a felony, did plaintiff make false representations in regard to his right to send O. to State's prison, and that, for the purpose of avoiding that supposed right of plaintiff, defendant indorsed this note and for no other purpose? On appeal from judgment in favor of plaintiff:

Legal tender acts: when subsequent adjudications do not disturb payments made under previous ones.— Defendants held a mortgage for $8,000 on premises in New York city executed September 27, 1860, and payable with interest September 27, 1863. On April 14, 1870, plaintiff, having previously become the owner of the premises, offered to pay the mortgage in legal tender currency, but defendants demanded gold, whereupon the parties made a written agreement that plaintiff should deposit with the Union Trust Co. the difference between the value of the mortgage in legal tender currency and that in gold, and that the question whether the mortgage was payable in gold or paper currency should be submitted to the supreme court of the State of New York. Thereafter the parties agreed to delay the submission to the supreme court of New York, until after the decision by the supreme court of the United States of the so-called legal tender cases, and that in case such decision should reverse the case of Hepburn v. Griswold, plaintiff should be entitled to the sum so deposited. The United States supreme court followed the decision in Hepburn v. Griswold, and on plaintiff's order the deposit was paid to defendants. Subsequently the United States supreme court held that the legal tender act was constitutional, and that it applied to contracts made before as well as after its passage (12 Wall. 457). Plaintiff brings this action to recover back the money thus paid to defendants.

Held, that since, when the payment was made, both the New York and the United States supreme courts

Review of evidence of agency for undisclosed principal. Defendant was a civil engineer, and plaintiff's evidence was, that as such, he had often given orders for work to plaintiff, who allowed him commissions on such orders, and never knew him to be engaged in building boats on his own account. Defendant having ordered from plaintiff the boilers for which this action was brought, plaintiff received from defendant a payment on account of said boilers, gave a receipt purporting to be on account of one W., and the account was entered in the ledger in the name of W., and the boilers were delivered to vessels which W. was building; that defendant did not disclose W.'s name when he ordered the boilers in question, and that the bill to W. was rendered at defendant's request. There was testimony from defendant that he told plaintiff he wanted the boilers for vessels building by W., that the work was furnished to W., that plaintiff allowed him a commission on these boilers, that they told him they had presented a bill to W., and said they wished they could hold him for them. W. testified that the boilers were delivered at his shipyard. Plaintiff had a verdict.

Held, that the verdict was against the clear weight of the testimony, and a new trial should be ordered. In such cases a new trial is granted only on payment of costs. Murphy v. Haswell. Ingraham, P. J.

PUBLIC OFFICERS.

Opinion by

Police court clerks in New York city: construction of statutes. Plaintiff was appointed police court clerk in pursuance of the Laws of 1858, chapter 264, section 6, by one of the police justices, and the latter notified the board of supervisors of such appointment, requesting them to fix his salary; said board passed a resolution

which was approved by the mayor, fixing plaintiff's salary "at the same amount as is now allowed police court clerks, to date from his appointment May 1, 1870." In an action for unpaid salary, defendants insisted that the appointment of plaintiff was void as in violation of section 3, chapter 382, of Laws of 1870, prohibiting the board of supervisors from "creating any new office or department."

Held, that the office was created by the police justice, and the action of the board of supervisors was merely an expression of opinion on their part, that the "additional clerical help" appointed by the justice was necessary, which was not within the prohibition of the act of 1870. The resolution of the board of aldermen passed December 20, 1869, which fixed the salary of police court clerk at $4,000, was in violation of section 11, chapter 876, Laws of 1869, and void; and plaintiff's salary must be determined with reference to the ordinance of December 31, 1864, fixing the amount at $2,500 per annum. Plaintiff's failure to have his salary accruing in 1871 audited by the board

1. What is delivery of goods sold: tender: attachments.-B., H. & Co. agreed to sell to S. & Co. 100 bales of cotton. They shipped it from Savannah to B. at New York, with directions not to deliver it if the standing of S. & Co. was doubtful. B., not being satisfied with the standing of S. & Co., presented to them a draft for the price, which they accepted, but it was agreed that the cotton should not be delivered to them till the maturity and payment of the draft, and if the draft was not paid at maturity, S. & Co. were to give up their claim on the cotton. S. & Co. failed to pay at maturity, and B. sold the cotton to D. Flynn, who procured from plaintiffs an advance thereon, plaintiffs taking the cotton into their custody. On April 11th, the sheriff levied on the cotton under an attachment against the property of S. & Co. On April 3d, S. & Co. sold 93 of said bales to T. Flynn, who on April 10th tendered a check therefor; this was refused, and T. Flynn then brought an action against B. and the sheriff, by which the coroner took from plaintiffs the said 93 bales. Thereupon plaintiffs brought this action to recover the cotton from T. Flynn and the coroner, and had judgment. On appeal:

Held, that the title to the cotton was never in S. & Co., and the levy by the sheriff or sale to T. Flynn transferred no title to either. The tender of payment by T. Flynn was of no avail, because he only tendered for 93 bales, because the tender gave him no right to the property if B. refused to deliver, but left him to the action for damages, and because T. Flynn had no title to all the cotton even for S. & Co., his vendor. D. Flynn obtained a good title. The correct rule of damages was its value at the time of taking and interest. Judgment affirmed. The New York Guaranty and Indemnity Co. v. T. Flynn et al. Opinion by Ingraham, P. J.

2. Delivery does not waive mode of payment: counterclaim. Defendants bought, on joint account, of plaintiff, through the latter's broker C, 294 pounds of oil, agreeing to give therefor a note or draft at sixty days.

Defendants knew that C's business was that of broker, and that he did not have possession of the oil at the time of the contract. They refused to give their note as agreed, but tendered to C in payment, two protested notes indorsed by C, claiming to set off these notes against the oil. Plaintiff had judgment.

Held, that the unconditional delivery of the oil did not relieve defendants from the mode of payment specified at the time of purchase, the only effect of such a delivery being a waiver of any right to receive payment as a preliminary to passing the title to the property, if the defendants sold it before payment to a bona fide purchaser. Plaintiff was still entitled to demand the notes, and if refused, to claim immediate payment. The claim to set off the notes indorsed by C was properly refused. Judgment affirmed. Smith et al. v. Milliken et al. Opinion by Ingraham, P. J.

SOCIETIES. See Sunday.

STATUTE OF FRAUDS. See Contracts. STATUTES OF LIMITATION. See Insurance.

STATUTES, CONSTRUCTION OF. See Public Officers; Evidences; Wills.

STOCK. See Corporations.

SUNDAY.

Meetings of societies can act on Sunday: societies cannot expel members without proof of charges against them. Where a benevolent society held business meetings on Sunday, at which a member was expelled in pursuance of a notice to appear, which was also served on Sunday, such proceedings are not void as in violation of our statute. Making a contract or agreement on Sunday is not forbidden, nor is it illegal to hold business meetings on that day. But such a member cannot be expelled merely because he did not appear, and without proof of the charges against him. The People ex rel. Corrigan v. The Young Men's Father Matthew Benevolent Society. Opinion by Ingraham, P. J.

TAXES AND ASSESSMENTS. See New York City.
TENDER. See Sales.

TRANSFERS. See Corporations.

TRUSTEES. See Wills.

UNDUE INFLUENCE.

WAIVER.

See Notes and Bills. See Corporations.

WILLS.

1. Construction of powers given in trust to executors. Where a testator directed in his will that "at and after the decease of my wife all the remainder of my real estate shall then be sold and conveyed," authorizing his executors to sell and convey the same, and divide the proceeds as specially directed:

Held, that the words "at and after the decease of my wife" simply fix the point of time when the power shall vest in the executors, and the words "shall then be sold and conveyed," leave no room to doubt that the power was to be presently executed: its immediate execution can be enforced by any or either of the beneficiaries, although a large majority of them desire its postponement, and the latter would be most beneficial to the estate. See 1 R. S. 734. § 96. Van Boskerck v. Merrick. Opinion by Davis, J.

2. Powers in trust, by whom to be exercised: construction of statutes.-The executors under this will are grantees of a beneficial and irrevocable power in trust (1 R. S. 735, § 108; id. 738, § 135), which is vested in them jointly as devisees or grantees thereof, and not as executors; both must unite in its execution, but if one be dead the survivor may execute it (1 R. S. 735, § 112), and the execution must be by an instrument with the formalities, and sufficient in law to pass the estate as if the person executing the power were the actual owner (id. 735, 736, §§ 113, 117). The court cannot divest the executors in such a case of the power in trust devised to them by the will, because of their non-residence or poverty, or inability to agree in the settlement of their accounts. Nor can the court hamper its execution by the imposition of bonds as security for performance, and impose a forfeiture of the estate as a penalty for not executing the bonds. The most the court can do is to compel them to execute the power by selling, and in that manner only, in this case, can they be divested of the power; though while compelling the execution of the power by them the court can effectually secure the proceeds to the beneficiaries. The proper mode in cases of danger of loss is to require the money to be paid into

court for distribution, and the court can direct this to be done, either absolutely or in default of satisfactory security for the distribution. The court cannot take the power from those to whom it was given, on failure to give the prescribed bond, and vest it in a trustee of its own nomination. The provisions of the Revised Statutes relative to trusts (1 R. S. 730, 731, §§ 70, 71, 72), relate to the "Express Trusts" treated of in that article, and do not apply to this case. Ib.

FOURTH DEPARTMENT-APRIL TERM.

AGENCY.

Where the defendants employed one C as their agent to purchase cheese, generally for cash, but occasionally short intervals of time elapsed between the delivery of the cheese and the payment for it, and defendants acquiesced in that course of business, and plaintiff knew that C was the agent of the defendants, and did not give credit to him personally, on default in part payment by C for goods thus purchased as agent for the defendants, plaintiff had judgment at the circuit.

Held, that C had an implied authority to purchase on credit, and defendants were liable. Judgment affirmed. Morey v. Webb. Opinion by Smith, J.

BAR -EVIDENCE- ESTOPPEL.

1. Plaintiff brought an action in a justice's court, and among other claims presented to the jury was a note of $42. Defendant in that action insisted that for a consideration the time for the payment of said note had been extended. The jury in that action found a verdict in favor of plaintiff for a portion of the sum claimed, and in their verdict stated "that the forty-two dollar note stand over till April next," the time to which, by the proof, it had been extended. This action was brought on said forty-two dollar note, and defendant claimed that it is barred by the former recovery. On the trial of this actior a juror in the former suit was called, who testified under objection that the jury in said former suit found that the forty-two dollar note was not due when their verdict was made.

Held, that a judgment is not a bar to a second action for the same cause if at the time of the rendition of the former judgment the cause of action had not then accrued. Parol evidence is admissible to show that the demand in the second suit was not recovered for in the first, and the reason why. That the evidence of the juror in the former suit was for this purpose competent. Marcellus v. Countryman. Opinion by

Mullin, P. J.

2. That part of the verdict of the jury in the former suit in relation to the note not being due, was incompetent. The jury had no power to render any such verdict, but as the fact was established by a competent witness, defendant was not prejudiced by it. Ib.

3. That defendant having succeeded in defeating a recovery in the first action, on the ground that the note was not due, is estopped from insisting on the falsity of that proposition in this action. He is bound by his position taken in the first action. If the finding of the jury in the first action was not right, it should have been corrected by appeal. It cannot be questioned now. Judgment affirmed. Ib.

BILL OF SALE- - EVIDENCE.

Between a stranger to a sale and any of the parties to it, it is competent to show that although a bill of

sale was made to one person, the purchase was in fact made by another. Defendant is a married woman. Her husband and son made arrangements to purchase a canal boat for the son, who was a minor. Defendant gave her notes for the price, and the bill of sale was made out to the son. Plaintiff afterward purchased said notes and brings this suit to recover on one of them. The defense is that defendant is a married woman, and the notes were not given for the benefit of her separate estate. On the trial the judge charged the jury "that the contract of sale being in writing, and having been read to the parties (the vendor and purchaser), it would be the height of presumption to suppose that the vendor was so ignorant as not to know that the bill of sale conveyed the property to the defendant's son."

Held, that the charge of the judge was equivalent to an instruction to the jury, that the bill of sale was conclusive evidence that the sale was to the son and not to the mother. The court also charged the jury, "That if she (defendant) was informed that she would be the purchaser and would give the boat to her son, then she might be regarded as the beneficial pur chaser." That, as the court did not inform the jury whose duty it was to give defendant this information, it was erroneous; if she had authorized her agent to make the purchase she needed no information as to the manner she might become the purchaser. If she did not authorize her agent to make the purchase for her, she could not be liable. Judgment reversed. McArthur v. Soule. Opinion by Mullin, P. J.

COMMISSION — MERCHANTS' COMMISSIONS.

The plaintiffs were distillers, and in the winter of 1871 shipped to defendants, who were commission merchants, four hundred and ninety-seven barrels of whisky, to be sold on a commission of two and onehalf per cent. Defendants themselves sold eighty-four barrels, and plaintiffs' traveling agents sold two hundred and twenty barrels of said whisky, which defendants forwarded as ordered, and entered the sales on their books. Defendants also paid all the taxes on all said whisky, and made advances on it from time to time, and kept the account of said sales on their books. In the fall of 1871 there remained in defendants' possession one hundred and ninety-three barrels of said whisky unsold. Plaintiffs demanded this whisky remaining, and defendants refused to deliver it until their commissions were paid. They demanded commissions not only on what they sold, but also on what was sold by the traveling agents of plaintiffs, and on the one hundred and ninety-three barrels still remaining in their (defendants) possession unsold. Plaintiffs in order to get possession of the whisky paid the amount claimed for commissions, and bring this action to recover it back.

Held, that defendants, under the agreement, were entitled to their commission of two and one-half per cent on all bona fide sales of said whisky. That it was not essential that the sale should be made by themselves, a sale by plaintiffs after a delivery of the whisky to them, which sale the defendants completed by forwarding the property, was such a sale as entitled defendants to their commissions. That the defendants were not entitled to two and one-half per cent commission on the whisky remaining unsold. But they were entitled to such a proportion of it as the trouble and risk incurred bore to the whole trouble and risk which would have been incurred had the property been actually sold by de

fendants. Defendants' demand being illegal in part, rendered the payment by plaintiff compulsory to the extent of the illegal part. Judgment reversed. Briggs v. Boyd. Opinion by Mullin, P. J.

CONTRACT EVIDENCE.

Defendant is an elevating company in Buffalo. In 1869 defendant contracted with plaintiff to elevate and store for a certain time five hundred thousand bushels of grain at a certain price. Plaintiff sold to L. & Co. the right under the contract to elevate and store one hundred thousand bushels of grain. Subsequently the elevating companies of Buffalo increased the rates for elevating grain one cent over the price fixed by plaintiff's contract. Defendant then applied to plaintiff to have the contract rescinded, and plaintiff agreed to and did rescind the contract except as to the right to elevate one hundred thousand bushels sold to L. & Co. L. & Co. after this sent an order to defendant for its acceptance to elevate and store the one hundred thousand bushels of grain according to the terms of the contract. Defendant's agents refused to accept the order, and this action is brought for damages for such refusal. It was not proved that at the time L. & Co. sent the order to defendants that they had any grain to be elevated and stored. L. & Co. assigned their interest in said contract to plaintiff. The referee found for plaintiff $1,000 damages, being the difference between the price fixed in the contract for elevating and storing and the price then fixed by the elevating companies.

Held, that plaintiff alone could sue. They could not transfer their interest to several parties and enable them to bring separate actions. Plaintiff might assign the contract to any number of persons, but only one action can be maintained for a breach of it. 2d. There being no provision in the contract forbidding it, plaintiff could accept the grain of any other persons and elevate it under the contract. 3d. The sale to L. & Co. was not the sale of any share or interest in the contract, but merely an agreement to give them the right to elevate the grain according to the contract. 4th. That the measure of damages adopted by the referee, under the case of Ogden v. Marshall, 4 Seld. 340, was correct. Evidence of the sale to L. & Co. was objected to by plaintiff's counsel, but received.

Held, not error. That proof of the sale, although not necessary, was proper by reason of the agreement to surrender plaintiff's interest in the contract except as to the one hundred thousand bushels sold to L. & Co. Judgment affirmed. Nelson v. Plimpton Elevating Co. Opinion by Mullin, P. J.

CONTRIBUTORY NEGLIGENCE.

This action was brought by plaintiff to recover for injuries sustained by him by reason of the negligence of defendant's employees. Plaintiff was driving a pair of horses attached to a lumber wagon. One of the horses was young and afraid of the cars. The road on which plaintiff was driving was nearly parallel to defendant's track, and for seven hundred feet back from the place of accident the sight of the track was obstructed by buildings, etc., nearly the entire distance. The signal post is sixty-seven feet from the crossing, and on the east of the highway there is an embankment so near the highway as to render it very difficult to climb the hill or to turn round without danger of tipping over. It was proved on the trial that plaintiff was driving on a trot, and that as he approached the crossing he did not look either to the right or to the