the traveled part of the street in a village, thereby broke away from the wagon, ran about sixty rods and injured plaintiff, who was crossing the street. No special authority from the village to build the telegraph line was shown. The plaintiff did not look up or down the street when he attempted to cross. Held, that suffering the pole to be in the street was not negligence per se; that the pole (as it seems) was not the proximate cause of the injury, and that the manner in which plaintiff crossed the street established contributory negligence upon his part.

APPEAL from a judgment, entered in Jefferson county upon an order of the court directing a dismissal of the complaint. The action was tried before a jury. At the close of the evidence the order was made.

Kilby & Kellogg, for app'lt; Porter & Walts, for resp't.

MARTIN, J.-We think this appeal should not prevail. The action was for negligence. The only negligence alleged was that the defendant permitted a telegraph pole to remain standing in one of its streets, at a point not to exceed twelve feet from a railroad track that was laid upon the street. The proof was that the pole stood between the sidewalk and traveled portion of the street, and from five inches to a foot from the walk. This pole was a part of a telegraph line extending from the station at Carthage to Jayville. The line was built and operated by the Carthage & Adirondack Railway Company. A railroad track was laid along the street with the consent of the president and board of trustees of the village. If any special authority was given by the defendant or its officers to build the telegraph line, of which the pole in question formed a part, it was not proved.

At the time of the injury one Hollister, a man seventy-eight years of age, was engaged in carrying the mail from the depot to the post office in the village of Carthage. His horse was timid, nervous and somewhat afraid of the cars. At about seven o'clock P. M. on that day he was at the station, obtained the mail and started up Mechanic street, on which the pole in question stood. As the train passed along the street his horse became frightened and commenced to run. He lost control of her and she then ran against the pole in question. Hollister was thrown out and the horse broke loose from the wagon and ran about sixty rods to the place where the plaintiff was crossing the street, where she ran over him and caused the injury of which he complained.

The plaintiff's injury was sustained while he was crossing one of the principal and most generally traveled streets in the village, which had a population of several thousand inhabitants. He was on foot and there was nothing to obstruct his view or to prevent his hearing the approach of a horse or team passing over the street, except that it was in the evening. Notwithstanding this, so far as the proof shows, he attempted to cross without paying the slightest attention to his surroundings or attempting to discover if any team or horse was approaching. Indeed his own testimony was that he did not look down the street at all before he turned the corner and that he does not reco'lect that he looked either up or down the street when crossing.

To entitle the plaintiff to recover, he was bound to show that the defendant was negligent in permitting the pole in question to remain where it had been placed by those who constructed the telegraph line, that such negligence was the proximate cause of his injury, and that he was free from any negligence which contributed to such injury.

We do not find the evidence sufficient to show that the defendant omitted any duty it was required to perform which was the proximate cause of the plaintiff's injury. To allow a telegraph pole to be erected in the streets of a village or city is lawful. Hence, the erection of this pole was not negligence per se. The pole stood between the sidewalk and the traveled part of the street. This was where such poles are usually placed. The distance of the pole from the sidewalk was not unusual or shown to be improper. There was no evidence that the pole was not properly set or that it was not properly maintained where it was. it can be held that it was negligence for the defendant to permit this pole to remain at that place, it would be equal negligence to permit a hydrant or hitching post to be placed, or trees to grow between the sidewalk and the traveled portion of a street, as is frequently done.

If

Again, can it be said that this pole standing at that place was the proximate cause of the plaintiff's injury? The horse had become frightened and unmanageable. The plaintiff was injured by the horse while running away. She was beyond the control of the driver before she came in contact with the pole. Would the jury have been justified in finding that the accident would not have happened but for the pole standing at that place? If not, then clearly the plaintiff could not recover, as the defendant would not be liable unless the injury would not have occurred but for its presence there..

Moreover, it is difficult to perceive how it could be found that the plaintiff was free from contributory negligence. His own testimony shows that he attempted to cross a street upon which there was a great amount of travel without exercising any vigilance or care to protect himself from injury by approaching teams or horses.

In Barker v. Savage (45 N. Y., 194), in referring to the duty of a person crossing a street, it is said: "To enter upon a street crossing in a city where the moving vehicles are numerous, and a collision with them likely to produce serious injury, without looking in both directions along the street to ascertain whether any are approaching and if so the rate of speed and how far from the crossing, would not only be the omission of reasonable care for his own safety, but an act of rashness. It is likewise the duty to look at street and road crossings for a like purpose, when there may be danger from approaching vehicles, although the travel may be quite trifling, for the reason that vehicles may be approaching so as to make it dangerous for footmen to proceed." See also Harnett v. Bleecker St., etc., R. R. Co., 49 Supr. Ct., 185; Smith v. Smith, 50 id., 503. While it may be that this rule has been somewhat modified by the doctrine of the case of Moebus v. Herrmann (108 N. Y., 349;

13 N. Y. State Rep. 648), which holds that the duty imposed upon a wayfarer at the crossing of a street by a railroad track to look both ways, does not, as a matter of law, attach to one about to cross a city street, still, there is nothing in that case which tends to establish the doctrine that a person may heedlessly cross a street without exercising any vigilance or care to avoid collision with passing teams and not be guilty of negligence.

We are of the opinion that the evidence in this case was insufficient to establish negligence on the part of the defendant which was the proximate cause of the plaintiff's injury or to establish the plaintiff's freedom from contributory negligence, and that the court properly dismissed the plaintiff's complaint. It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

HARDIN, P. J., concurs; MERWIN, J., concurs in the result.

In re Accounting of EDWARD S. DAWSON, JR., Assignee. L. D. V. SMITH, App'lt, v. EDWARD S. DAWSON, JR., as Assignee, Resp't

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. ASSIGNMENT FOR CREDITORS-PARTNERSHIP-DEBTS OF OLD FIRM.

S., a member of the firm of S. & A., then solvent, sold his interest in the firm to E., and the business was continued by the firm of A. & E. The new firm assumed the debts of the old, paid some of them, and failing included in their schedules of assignment the unpaid debts of the old firm. Held, that by this transaction the new firm became the principal debtors for the debts of the old firm, while S. was merely a surety. That the assignment, which directed the payment of these debts of the old firm, must control and that those creditors were entitled to share pro rata in the assets with the creditors of the new firm.

2. SAME-APPEAL.

S. was a party in interest, and was entitled to appeal from an order made in the assignment proceedings under which the creditors of the new firm were preferred over those of the old.

APPEAL by L. D. V. Smith from an order confirming the report of a referee, which held that the creditors of the firm of Ashcroft & Edwards be paid in full and that any surplus be applied on the debts of the firm of Smith & Ashcroft.

Hoyt, Beach, Hancock & Devine, for app'lt; H. E. Miller, for resp t

MARTIN, J.-On and prior to June 25, 1889, L. D. V. Smith and H. M. Ashcroft were copartners in the grocery business in the city of Syracuse, N. Y., doing business under the firm name of Smith & Ashcroft. On that day Smith, who was an equal partner, sold his interest to John B. Edwards, who became a partner of Ashcroft, and the business was continued under the firm name of Ashcroft & Edwards. At the time Smith sold to Edwards the firm of Smith & Ashcroft was solvent, and worth from six to seven thousand dollars over and above its liabilities. Edwards took Smith's interest, subject to one-half of all outstanding debts and obligations against the firm of Smith & Ashcroft, which he assumed and agreed to pay.

On the 15th of January, 1890, the firm of Ashcroft & Edwards made a general assignment for the benefit of their creditors to Edward S. Dawson, Jr., who accepted the trust, filed his bond, and entered upon the discharge of his duties. From fifty to sixty per cent of the assets that came into the hands of the assignee under that assignment was the property owned by the firm of Smith & Ashcroft at the time of the transfer of Smith's interest to Edwards. The assignee realized from the property which came into his hands the sum of about $4,000, while the debts of the assignors amounted to about $9,500, including the debts contracted by Smith & Ashcroft.

On June 27, 1890, the assignee made and filed an account of his proceedings, and citations were issued upon his petition. An order was subsequently made referring the matter to a referee to take and state the assignee's account, and to take proof and report as to what persons were entitled to share in the distribution of the assigned estate, and in what priority and in what proportion. Upon the hearing before the referee the assignee filed objections to the payment of certain claims for goods which were sold to the firm of Smith & Ashcroft. These debts were proved against the estate by the holders thereof. In the inventory or schedule filed by the assignee, and verified by both asssignors, the claims to which the assignee objected were included and intermingled with those of other creditors, and set out as debts of the firm of Ashcroft & Edwards.

On July 16, 1890, the referee's report was filed, wherein he found that the claims to which the assignee objected should be disallowed, and that the creditors of Ashcroft & Edwards should be paid their claims in full, and, should there be any surplus after the payment of such debts, then it should be applied to the debts of the firm of Smith & Ashcroft pro rata. On July 31st an order was entered confirming this report, and directing that the assignee pay the creditors in the order mentioned. From this order an appeal was taken by the appellant.

The proof taken in this proceeding shows quite conclusively that the transfer by Smith to Edwards was made with the consent of Ashcroft, and that the firm of Ashcroft & Edwards assumed the payment of the debts and liabilities of the firm of Smith & Ashcroft.

This seems to be very clearly established by the evidence of the witnesses Smith, Ashcroft, Watson and Pardee. Besides, the manner in which the business was conducted by the new firm, the fact that it continued paying the debts of the old, and the further fact that the debts of the old firm were included in the schedules of the debts of the new, and verified by both Ashcroft and Edwards, all lead naturally and necessarily to the conclusion that the new firm assumed the debts of the old. The evidence and the acts of the parties were wholly inconsistent with any other theory.

Assuming, as we think we must, that the debts of the old firm were assumed by the new, it follows that the new firm became the principal debtor, while Smith, the outgoing partner, was a mere

Savage v. Putnam,
This relation be

surety for the payment of the old firm debts. 32 N. Y., 501; Morss v. Gleason, 64 id., 204. tween the parties the creditors of the old firm were bound to observe. If they had notice of the transfer by Smith and the relations assumed by the new firm, upon Smith's request it would have been their duty to have collected their debts of that firm, and if, through their neglect to comply with such request, the debts became uncollectible, Smith would have been discharged. Colgrove v. Tallman, 67 N. Y., 95; Calvo v. Davies, 73 id., 211; Hunt v. Purdy, 82 id., 487; Palmer v. Purdy, 83 id., 147; Grow v. Garlock, 97 id., 81.

While it is true that the question here is not whether Smith could have compelled the creditors of the old firm to enforce their claims against the new if it had remained solvent, and hence the authorities cited by the respondent have no application, still the doctrine of the authorities cited above shows that the transactions between the parties had the effect to constitute the new firm the principal debtor to the creditors of the old, with Smith remaining liable as surety only, and that Smith had a right to insist that these debts should be paid from the assets of the principal debtors, at least so far as to share pro rata with the other general creditors of that firm.

This was both equitable and just. As we have already seen, from fifty to sixty per cent of the assets that came to the hands of the assignee consisted of property that formerly belonged to the old firm and was transferred to the new. The property transferred to the new firm was held by it charged with a trust for the payment of the debts of the old. Morss v. Gleason, 64 N. Y., 205, 207.

Moreover, the assignors by their assignment dedicated their property to the payment of the debts in question as well as the debts subsequently contracted. The debts of the old firm were recognized by the assignors as the debts of the new, and were included in their verified schedule as such. The direction to the assignee contained in the assignment was that he should, after paying the costs and expenses of executing his trust and the preferred creditors, pay all the debts and liabilities of the firm in full, if the assets were sufficient; if not, the unpreferred creditors were to be paid pro rata. The debts in question were included within that provision. Chapin v. Thompson, 89 N. Y., 271.

It may be observed in passing that the objections to the payment of the debts in question were not made by the other creditors, but by the assignee alone. He seems to have deemed it his duty to object to these debts, notwithstanding the fact that the assignors were liable therefor and had included them in the schedule of debts which were to be paid by him. In the Matter of Lewis (81 N. Y., 424), the court in discussing the question of the effect of an assignment upon the duties of an assignee and the power of a court to direct the assets in the hands of an assignee to be distributed otherwise than in accordance with the provision of the assignment, said: "The assignee derives all his N. Y. STATE REP., VOL. XXXVI.

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