Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1895.

man that it was so treated. And although the right to declare it forfeited may have existed after the transfer to Grover, by reason of some default on the part of Cushman, she was not chargeable with knowledge that the company would avail itself of the power to forfeit it, and may have supposed from the non-action of the company in that respect that it would not, without which her right to proceed in its performance would remain operative, and, therefore, she was not chargeable with fraud in that respect. But by the existence of such right and its subsequent exercise by the company there was a failure of consideration to that extent for the notes available to Grover as for breach of the contract in not receiving what Cushman undertook he should have by means of the transfer to him of the agency contract of the company. The main inducement to Grover in making the purchase was in the company's contract and his supposed right acquired to proceed under and pursuant to it.

At some time, after Grover had proceeded under the contract, but how long after does not appear, he learned that the company had asserted that it had no agency in the territory in question. He testifies that he then called upon Mr. Cushman, who it seems conducted the business for Mrs. Cushman, and told him what he had so learned, and that Cushman said, "There was some mistake about it; that the company had written him, as he told me before, the contract could be turned over to me; they would allow it to be turned over to me, give me the same terms he had." If it had appeared that Cushman had said to Grover before the agreement with him was perfected that the company had written him that the contract could be turned over to him, there would, in view of the evidence that no such consent was given, have been some proof to permit the jury to determine that Cushman was chargeable with fraud in obtaining the notes, and, therefore, the burden of showing that the plaintiff was a bona fide holder of the notes for value would be cast upon it. But the evidence fails to show that such statement was made by Cushman before the transfer and notes were made. And if the jury had by the evidence been permitted to do so, and nad found that the notes were obtained by fraud, the question whether the plaintiff was a bona fide holder for value would have been one of fact for the jury since the relation of the cashier to the plaintiff was such as to present the question of his credibility for

FIFTH DEPARTMENT, JUNE TERM, 1895.

[Vol. 88. consideration. (Joy v. Diefendorf, 130 N. Y. 6.) The burden, however, was with the defendants to prove that the notes were fraudulently obtained by Cushman. In an action at law fraud must be clearly proved. It will not be presumed, nor, on mere probabilities, be assumed. The defendant E. D. Grover, when he made the agreement with Cushman, undoubtedly understood and believed that he would be permitted to proceed under the contract which was transferred to him. It may be assumed that he was so advised by Cushman, and the latter may have supposed that he could and would have the benefit of it. And his promise or statement that Grover would be allowed to go forward with it was not fraudulent unless he had been advised to the contrary, which does not appear. It was a mere promise or undertaking about a matter executory in character and not the misrepresentation as to an existing fact.

As nothing appears in the evidence of the transaction between Cushman and Grover to repel the presumption that the plaintiff was a bona fide holder and owner of the notes for value, the question arises whether any other reason appears in the evidence tending to impeach such relation of the plaintiff to them.

The defendant E. D. Grover testified that after this action was commenced he called upon Mr. Hathaway, the president of the plaintiff, and in the conversation had, amongst other things, said to him that Mr. Cushman had told him that the bank did not own the notes, and that Hathaway did not deny the statement. It is urged that this want of denial is some evidence of `an admission on the part of the plaintiff that it was not the owner of the notes. That rule is applicable against a party to an action in whose presence and hearing something pertinent to the matters in question is stated, and which it is for his interest to controvert. Then the fact that he does not do so is evidence for the consideration of the jury, and it may treat his silence as an implied admission of the fact as stated. Hathaway was not a party to the action, and although he was president of plaintiff, his declarations cannot bind the bank, nor are they admissible as evidence against it unless they are made in regard to, at the time of, and as a part of, a transaction within the scope of his agency. (Packet Co. v. Clough, 20 Wall. 528; Baptist Church v. Brooklyn F. Ins. Co., 28 N. Y. 153; Luby v. Hudson R. R. R. Co., 17 id. 131.) It does not appear that Hathaway was then

Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1895.

engaged in the performance of any official duty of which the conversation referred to was a part. His declarations, therefore, if any had been made about the title of the bank to the notes, would not have been admissible. It was a mere conversation between Grover and him on the subject of the suit upon the notes, and whether the bank had taken title to them was dependent upon a past transaction, of which Hathaway may or may not have been advised. The cashier testified that he was discount officer of the bank; that the notes passed through his hands, as such, and were discounted.

The circumstances of the interview between Grover and Hathaway were not such as to render the failure of the latter to speak on the subject referred to any evidence of an implied admission on the part of the bank that it did not own the notes.

It seems that the bank held some bonds and mortgages as general collateral security for the liabilities of Cushman to it, which liabilities arose mainly upon paper discounted by it. Whether or not the security thus taken was adequate does not appear. The evidence upon that subject does not deny to the plaintiff the character of bona fide holder for value of the notes.

The letter of date January 16, 1893, from Cushman to Mayo, who by it was treated as in some way representing the company, offered in evidence and excluded, could have been of no benefit to the defendants if it had been received in evidence. The main. feature of the letter was that Mrs. Cushman desired to transfer the business to a person not named in it, to do which consent was requested that such person take the agency. There is nothing in the letter importing that the contract had been forfeited, or that Cushman apprehended that it would be, but, on the contrary, it is there treated by Cushman as operative. Without some answer from the company, of which there was no offer to prove, the letter had no materiality for any legitimate purpose. There was no error to the prejudice of the defendants in any of the rulings at the trial.

The conclusion upon the evidence was required that the plaintiff by transfer before their maturity became and was the bona fide owner and holder of the notes for value.

The judgment should, therefore, be affirmed.

LEWIS, WARD and WERNER, JJ., concurred.
Judgment affirmed.

Hry-Vor LXXXVIII.

FIFTH DEPARTMENT, JUNE TERM, 1895.

[Vol. 88.

MARIA DU BOISE, as Administratrix, etc., of ISAAC DU BOISE, Deceased, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

Negligence—proximate cause of an injury — contributory negligence.

In order to hold a corporation liable for injuries sustained, as alleged, by reason of its negligence, the negligence must be the proximate cause of the injuries and it must appear that the person injured was free from contributory negligence.

In such an action the evidence tended to show that the plaintiff's intestate approached the railroad of the defendant from the north; that there were four tracks numbered from south to north; that the crossing was blocked by coal cars standing on track No. 2; that after waiting some minutes the plaintiff's intestate climbed upon the coal cars, upon a platform between them, his head then being two or three feet above the boxes on the cars; that he stood there a moment looking east and west; that his view to the west was unobstructed; that he then jumped down and was killed by a train going east on track No. 1, moving at the rate of from fifty-five to sixty miles an hour. dark and the evidence was not sufficient to enable the jury to nal was given and to impute negligence for the want of it. engines near the crossing blowing off steam or smoke. Held, that it could not be said that the accident resulted from the presence of the coal cars, or that the deceased was free from contributory negligence.

The night was find that no sigThere were two

MOTION by the plaintiff, Maria Du Boise, as administratrix, etc., of Isaac Du Boise, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the granting of a nonsuit by the court after a trial at the Monroe Circuit on the 13th day of December, 1894.

P. Chamberlain, for the plaintiff.

Albert H. Harris, for the defendant. BRADLEY, J.:

On the 6th day of August, 1894, as the plaintiff's intestate was proceeding on a highway to cross the defendant's railroad, he was struck by a passing train and killed. The plaintiff charges that the disaster was occasioned solely by the negligence of the defendant. The plaintiff was nonsuited at the trial.

The occurrence was about nine o'clock in the evening, and it was

Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1895.

then quite dark. It was in the town of Gates, county of Monroe, and the highway was known as the Field road. The defendant's tracks crossing the road were four, numbered from the south to the north. The deceased, on foot, approached the tracks from the north. There was then a train of coal cars standing on track No. 2 over the crossing. After waiting some minutes, and as the coal train was not moved, he proceeded to cross by climbing over between cars, and when he jumped from the train on to the south side of it he was struck by a train going east on track No. 1. It seems that there was no engine attached to the coal train, and that it remained there for some time, and was an obstruction to the passage across the road over the railroad tracks. The defendant was chargeable with negligence for permitting the coal train to remain the length of time that it had been there at the time of the accident. And the inference is fairly justified that the decedent would have safely passed over the tracks before the train arrived if that obstruction to his passage had not been there. In that sense the negligence of the defendant was a cause of the death. But this condition there did not justify the decedent in incurring the hazard of encountering a passing train upon the south track.

The cars between which he passed were flat cars with boxes two or three feet high, and his head was two or three feet above them when he was on the platform between them, where he stood for a moment, looked west and east, and then jumped. No reason appears why his opportunity to see the approaching headlight was not as favorable as it would have been if the coal train had been absent and he had been on the ground. In that view it is difficult to see that the standing coal train contributed to the accident otherwise than in inducing delay in the passage of the decedent until the fatal moment. This did not render the fact that the coal train stood there the pertinent or proximate cause of the occurrence. He was not held back by it or required by it to go forward when he did. He voluntarily proceeded to pass over the train, and might have done so at his pleasure sooner if he had so chosen, or might have delayed doing so until later.

Unless some further reason exists to render it so, the negligence of permitting the coal train to remain there is not imputable as the cause of the unfortunate event.