These views lead us to the conclusion that a new trial should be ordered.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

MARTIN and MERWIN, JJ., concur.

JENNIE J. HOLCOMB, Resp't, v. THE TOWN OF CHAMPION, App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. HIGHWAYS-NEGLIGENCE-ABSENCE OF GUARD TO EMBANKMENT.

In an action to recover for injuries sustained by being precipitated down an unguarded embankment on a highway, where the evidence showed that plaintiff's horse shied suddenly and overturned the buggy, Held, that the court properly submitted the questions of negligence to the jury, and limited the question of the negligence of the highway commissioners to the failure to have a guard or barrier at that place.

2. SAME CONTRIBUTORY NEGLIGENCE-CHARGE.

A witness having testified that plaintiff's husband had several times told her that the horse was not safe for her to drive, the husband denied that he had ever done so. Held, that the court properly refused to charge, at defendant's request, that the jury were at liberty to find the horse was unsafe for plaintiff to drive and that she knew it, if they believed the evidence of the first witness, and submitted that question to the jury to determine as a question of fact.

VERDICT at the Jefferson circuit for $2,200 in favor of the plaintiff Motion for a new trial made on the minutes and denied. Judgment entered on the verdict. Appeal from the judgment and the order. Plaintiff received injuries on the 27th day of June, 1887, while driving a horse and wagon with her two daughters, one fourteen and the other nine, from her home towards her brother's residence. She came to a gulf or ravine about a half a mile from the village of Champion. Deer Lick Creek runs through the gulf. There is an embankment raised some distance above retaining walls, and the traveled track was about twelve feet in width, and gradually sloped off to the retaining walls. The distance from the top of the walls down to the adjacent ground. was some ten feet. Plaintiff when she came in sight of the embankment where the injuries occurred had the reins in her hand, and the horse turned suddenly to the right, tipping over the buggy, and the occupants were precipitated, and plaintiff received the injuries of which she complains. The facts and circumstances attending the accident are detailed by the plaintiff and her daughter, Julia. Some stone had been left by the highway commissioners, and apparently the horse discovering them pricked up his ears and quickened his motion and "sheered right out of the road." Julia testifies, viz.: "After the horse commenced to move to the right he didn't move ahead any at the same time. He turned right straight off. He turned right straight to the right, short off, jumped right off. It was done suddenly. He jumped toward the side I was sitting on." Considerable evidence was given on the trial as to whether the horse was blind or not, and as to his character and disposition. Some of the testimony given upon the trial has been omitted from the evidence, "for the reason that the appellant stipulates that all grounds for a reversal

of a judgment and order are waived, excepting: 1st. Whether the negligence of the defendant proven caused the injury? 2d. Whether the plaintiff herself was guilty of contributory negligence? 3d. Whether the court improperly refused to instruct the jury concerning the testimony of Henry Ingraham." It was "conceded by the appellant that the court properly submitted to the jury the question, whether the highway was in an unsafe and dangerous condition for public travel at the place where the accident occurred and that the court also properly submitted to the jury the question, whether the commissioners of highways of the defendant negligently allowed the highway to remain in an unsafe and dangerous condition for public travel; and it being further conceded by the appellant that the finding of the jury adverse to the defendant upon these two questions is conclusive upon the appeal." That it was "conceded by the appellant that the court properly submitted to the jury to determine the extent of her injuries, and that the finding of the jury upon this branch of the case, and the amount of damages awarded the respondent, if it is legally liable therefor, is conclusive upon this appeal."

Mullin & Griffin, for app'lt; Porter & Walts, for resp't.

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HARDIN, P. J.-When the trial judge delivered his charge to the jury he stated, viz.: "A recovery is to be had here, if at all, not by reason of the negligence of the town, but by reason of the negligence of the commissioners of highways with reference to the road.. So that there is to be a finding on your part, in order to enable the plaintiff here to recover in the first place, that the commissioners of highways in the town of Champion were guilty of negligence in not keeping this highway in a reasonably safe condition for public travel, which negligence caused this accident and these injuries. * * If you find they were negligent, and that negligence caused the injuries, then the plaintiff may recover for those injuries against the town, unless the plaintiff was herself guilty of some negligence which contributed to produce the injuries." Later on in the course of the charge, the judge observed: "The single thing which the court permits you in this case to determine was negligence, if anything was negligence, was the failure to have on either side of this embankment, on either side of the road, a guard or fence or rail, so that if horses should become partially unmanageable and shy, that they would be, travelers would be protected from going off the embankment by the railing or fence. You may not charge the commissioners with negligence for anything else in this case, if you do for that, except the failure to have some guard or rail or fence on either side of this embankment.' We think the evidence warranted the charge given in the language which we have quoted.

Our views upon these questions were expressed in Maxim v. Town of Champion, 50 Hun, 88; 23 N. Y. State Rep., 949; affirmed 119 N. Y., 626; 28 N. Y. State Rep., 978. The damages sustained by the plaintiff in the case just cited arose "from walking off from a high unguarded bridge or embankment in one of the public highways of the defendant," and being the same high

way upon which the plaintiff in this case was injured. We think the learned counsel for the appellant was warranted in stating in their points that, "In view of the decisions upon this subject it undoubtedly may be assumed the court properly submitted to the jury to decide whether such omission under the circumstances constituted actionable negligence. And it may be assumed also that the finding of the jury adversely to the defendant upon this branch of the case will not be disturbed on the appeal." We think it was a question of fact on all the evidence for the jury to determine whether or no the negligence of the highway commissioners, to which we have referred, was the proximate cause of the injuries received by the plaintiff.

In Kennedy v. The Mayor, 73 N. Y., 367, it seems to be laid down that the duty of protecting animals by a guard or barrier is not restricted alone "to animals which, at the time of their loss, are docile and obedient and under absolute control of the owner." In the opinion it is said: "The shying of a horse, his backing or turning in consequence of a sudden fright or other cause, so as to be for a moment beyond the control of the one having him in charge, are among the most common occurrences. That a horse may on a particular occasion do this neither shows that the animal is vicious or generally unsafe, or that the owner is careless. It is against accidents which may happen from these common incidents in the use of horses upon docks that a barrier is especially needed." We suppose no less stringent rule or reasonable requirement obtains in respect to highways.

(2) Whether the plaintiff was free from contributory negligence or not was a question of fact for the jury. Her testimony and the testimony of her daughter Julia bearing upon that question, fairly presented a question for the jury to determine; and that question was carefully, cautiously submitted by the trial judge to the jury, and we see no occasion to disturb their verdict upon that question.

(3) When Henry Ingraham was upon the stand he gave evidence tending to show that the husband of the plaintiff had “told her lots of times that the horse was not safe for her to drive." Later on the husband of the plaintiff was called as a witness, and testified that he never told his wife "not to drive the horse, stating that he was not safe for her to drive." The counsel for the defendant requested the court to charge the jury that they were "at liberty to find the horse was unsafe for the plaintiff to drive, and that she knew it," if the jury believed the evidence of the witness Ingraham as to the interview detailed by him. To that request the judge observed, in his refusal, that it was for the jury to determine as a question of fact whether or no the horse was unsafe for the plaintiff to drive, and that she knew it. We think the exception taken to the position assumed by the judge in that aspect of the case presents no error. The practice of seizing upon detached portions of evidence which are the subject of contradiction and requiring the trial judge to charge conditionally in respect thereto that if a certain portion of the evidence thus N. Y. STATE REP., VOL. XXXVI. 96

brought into dispute is believed by the jury then that the verdict should be in accordance therewith, is not to be commended. In this case the trial judge had very fairly and fully called the attention of the jury to the leading questions of fact involved in the case, and we think he was not called upon to yield to a request which required him to make fractional representations.

Having discovered no error in the course of the trial we must allow the verdict to stand.

Judgment and order affirmed, with costs.

MARTIN and MERWIN, JJ., concur.

CONRAD SIPFLE, JR., et al., Resp'ts, v. ALFRED ISHAM, Impl'd,

App❜lt.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) PARTNERSHIP-PROOF OF-FINDINGS OF REFEREE.

In an action on a note made in the names of defendants but executed by defendant S., appellant denied that he was a partner or ever authorized the making of the note. On a former appeal it was held that he eould not be held liable as the referee did not find that there was a partnership. On the second trial there was evidence of a conversation with him in which he said that he and S. were going in as partners in the purchase of certain patent rights which were valuable, and the referee found that defendants were partners. Held, that as there were some evidence to sustain the findings, the appellate court would not interfere therewith.

APPEAL from a judgment entered upon the report of a referee in Onondaga county in favor of the plaintiffs.

'I

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Action on a promissory note given for $1,200. Upon the hearing the testimony of Byron E. Loomis was given in respect to a conversation between "Isham and Stimpson in reference to Burdock's Patent Refrigerator and Butter Cooler in San Francisco." Among other things the witness testified: "I said to Mr. Isham, suppose you have a real good thing;' he said: 'there aint money enough to buy it; we have an independent fortune out of it; Mr. Stimpson and I are going to have it;' I said: 'It will take plenty of money to run it; he said: 'we have plenty of money;' he said: 'we are going in as partners; we have the states of Louisiana and New York and Mr. Stimpson is going there to sell territory of the places, and we have made arrangements with Mr. Bugby to that effect." *They were in together, and in all his conversation he stated 'we'; he was the most enthusiastic of the two." This evidence was repeated in substance on cross-examination. The witness added in his direct examination: "The whole conversation was that we are going to make a fortune out of this business; in fact, I believe he told me that they had bought two states." In his cross-examination he stated: "We are going to do this; we have bought the two states; he said: 'we are going in as partners; this is the impres sion I got; the exact words it would be difficult for me to remem ber." The referee found as a matter of fact: "That the defendants were copartners as far as the plaintiffs are concerned at the time of the execution of said note of $1,200, and prior thereto, and at the time of making the contract out of which the note

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grew." As a matter of law he found: "That the plaintiffs for the purposes of this action are co-partners." Second. That the defendants Albert S. Stimpson and Alfred H. Isham, "became and were partners under the name of Stimpson & Isham in the particular venture of the purchase of the patent of the states of New York and Louisiana, and the working of the same in said states."

E. A. Nash, for app'lt; Homer Weston, for resp'ts.

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HARDIN, P. J.-When this case was before us on a former appeal, 46 Hun, 366; 12 N. Y. State Rep., 359, among other things, we said: "The referee does not find that Isham and Stimpson were copartners, nor that Stimpson, who made and signed and delivered the note to plaintiffs as a copartner or otherwise, was authorized by Isham to make the note in suit. * The plaintiffs planted themselves upon the averment that Isham was a partner. That was not proven; nor is it found by the referee." Upon the proofs given and the findings made by the referee found in the present appeal book, the case differs quite essentially from the case found in the former appeal book. It may be observed that the evidence is slight tending to sustain the conclusion of fact found. by the referee in the last trial. However, as there is some evidence to sustain the findings we are not inclined to interfere with the same. The referee has carefully considered the evidence, and weighed it in the light of the discussion of the authorities bearing upon the questions involved, and delivered an opinion reaching a conclusion upon the evidence which we are not inclined to disturb.

(2.) We have looked at the rulings made upon the trial and we are of the opinion that they do not present such prejudicial error as require us to disturb the report of the referee.

Judgment affirmed, with costs.

MARTIN and MERWIN, JJ., concur.

GILES EVERSON, Resp't, v. FRED C. EDDY, Rec'r of the Syracuse Screw Co., Impl'd, App'lt.

(Supreme Court, General Term, Fourth Department, Filed February 20, 1891.)

1. JUDGMENT-REFERENCE.

Where the reference was of all the issues to be heard and determined by the referee, it is proper to enter judgment upon filing his report. 2. CORPORATIONS-MORTGAGE-CONSENT.

It is not necessary that the requisite consents of stockholders to the making of a mortgage by a corporation should be filed before execution of the mortgage; it is sufficient that they be executed on the same day and be recorded with the mortgage.

3. SAME-VALIDITY OF MORTGAGE.

A mortgage executed by a corporation cannot be held invalid under R. S.. pt. 1, chap. 18, tit. 4, § 4, where the corporation at the time of making it was not insolvent and the mortgage was not made in contemplation of insolvency.

APPEAL from a judgment entered in Onondaga county, upon the report of a referee, by an order made at special term on the