whenever a lowering temperature caused the water thus retained to congeal. Without further reciting the facts, it is sufficient to say that we agree with the learned judge at general term that this case does not come within the rule established in Muller v. City of Newburgh, 32 Hun, 24; 105 N. Y., 668; 8 N. Y. State Rep., 910, and Taylor v. City of Yonkers, 105 N. Y., 202; 7 N. Y. State Rep., 332, because the dangerous condition of the sidewalk was not due to natural causes, but rather to artificial ones, and thus the finding of the jury that the defendant was negligent comes within the protection of Todd v. City of Troy, 61 N. Y., 506.

The record presents but one exception requiring consideration. A witness sworn on behalf of the plaintiff was permitted to testify, against the objection of the defendant that the evidence was too remote, irrelevant and immaterial, that about two years prior to the happening of the accident in question he fell upon the ice at the same place. That as he was coming out of Craine & Watters' store he stepped down from the riser onto this place and fell.

He further said that there was about the same amount of ice there when he fell as when the plaintiff fell. It does not appear that the accumulation of ice at the time the witness fell was occasioned by the defects in the conductor pipe and gutter stone which are alleged by the plaintiff to have been the cause of the creation of the mound or hummock of ice upon which she fell. After the evidence had been admitted, the defendant also moved to strike out the evidence of the witness so far as it referred to his fall of two years before. The motion was denied, and the defendant excepted. It is competent to show that the sidewalk had been in an unsafe condition by reason of the accumulation of ice for a period of time previous to the happening of the accident. Indeed, it was necessary to show, in the event of a failure to prove that the defendant had actual notice of the condition of the sidewalk in this place, that it had been in that condition for such a length of time that the defendant ought to have known it, and is therefore chargeable with constructive notice of its actual condition. In the attempt to make such proof, it has been held competent to permit one who is giving testimony as to the condition of the sidewalk to testify that he had fallen himself. It tends to show how he came to know the condition of the walk Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459, 469; 5 N. Y. State Rep., 802. Proof of the happening of a prior accident in the same place has also been held to be competent, upon the ground that it tended to show that the walk, tested by actual use, had been demonstrated to be in an unsafe and improper condition, and that such was its condition at the time of the happening of the accident. Quinlan v. The City of Utica, 11 Hun, 217; 74 N. Y., 603; District of Columbia v. Armes, 107 U. S., 519.

Had the plaintiff confined her proof so far as it related to the falling of others during the continuance of this mound or hummock of ice, it would have come within the protection of the rule established by the decisions of which the cases cited are a type.

But mere proof of a fall occasioned by the existence of ice two years before was not competent for any purpose. It was not pertinent upon the question of notice to the defendant because that ice was not the occasion of this injury. It did not tend to show that, tested by actual use, this walk was in an improper condition, for the ice complained of had disappeared, and as a result the walk had been restored to its usual condition nearly two years before.

It was, therefore, the right of the defendant to have this incompetent evidence excluded. This right was denied to it, and as we cannot say that the defendant was not injured by the judgment should be reversed.

error, the Judgment reversed and new trial granted, with costs to abide the event.

All concur, except BRADLEY and HAIGHT, JJ., not sitting.

ADOLPHUS D. STRAUS et al., Resp'ts, v. THE TRADESMEN'S NATIONAL BANK OF NEW YORK, App'lt.

(Court of Appeals, Second Division, Filed October 28, 1890.)

1. BANKS AND BANKING-SPECIAL DEPOSIT.

Plaintiffs deposited their certified check with defendant, the latter having notice that the deposit was specially made to supply a fund to pay a check of ore Dixon, which had been endorsed by the plaintiffs and placed to their credit in the Hanover Bank. Held, that defendant had no right to treat the fund as a general deposit on Dixon's account, and it must be deemed to have placed it to the credit of Dixon subject to the qualified purpose or trust of which it was then advised the deposit was made 2. SAME EVIDENCE.

The transaction of making the deposit by the plaintiffs' messenger was with the teller only, and when the president first heard that it was claimed to have been made for a special purpose was immaterial.

APPEAL from judgment of the general term of the supreme court in the first judicial department, affirming judgment entered upon decision of the special term in favor of the plaintiffs.

E. Countryman, for app'lt; Edwin B. Smith, for resp'ts.

BRADLEY, J.-The action was brought against the appellant and the Hanover National Bank of New York, and its purpose originally was to restrain the former from transferring or presenting for payment and the latter from paying a check drawr. by the plaintiffs upon the Hanover Bank for $11,787.50, which had been deposited with the Tradesmen's Bank to the credit of Hiram Dixon. The claim to such relief was predicated upon the alleged ground that the check was so deposited to produce a fund to the credit of Dixon to pay a check drawn by him upon that bank for $11,775; and that the bank last mentioned sought to apply sufficient of the amount so placed to the credit of Dixon in payment of a debt or balance due from him to it of upwards of $800. The matter being partially adjusted by application upon the Dixon check of the proceeds of the plaintiffs' check in excess of the amount of such debit balance, the complaint was so amended as to reduce 1 Affirming 13 N. Y. State Rep., 407.

the controversy to the question whether the Tradesmen's Bank was entitled to retain from the fund the amount so due it from Dixon. This was dependent upon the nature of the credit to Dixon, and the character in which the bank was at liberty to assume that the deposit furnishing the credit was made. As a rule a deposit made in a bank by a person on general account becomes its fund and the relation between the depositor and the bank is that of debtor and creditor, and in the absence of any agreement to the contrary the bank is at liberty to apply the money upon a demand due to it from the depositor. Commercial Bank v. Hughes, 17 Wend., 94; Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y., 82; Nat. Bk. of Newburgh v. Smith, 66 id., 271.

This the defendant contends was the situation and the relation produced by the deposit in question. It appears that the Dixon check in the Tradesmen's Bank payable to the order of the plaintiffs was drawn by him and delivered to them at their request and for their accommodation with knowledge on their part that the drawer had no funds in the bank, and with the understanding that the plaintiffs would provide the means to meet it; and thereupon and with that view they drew their check upon the Hanover Bank payable to the order of one of them, who endorsed it, procured it to be certified by that bank and sent it to the Tradesmen's Bank. What took place there when the messenger delivered it to that bank for deposit to the credit of Dixon was the subject of conflict of evidence. But the trial court found that the plaintiffs' certified check was sent by them to the Tradesmen's Bank and there deposited for the purpose of insuring the payment of Dixon's accommodation check; that the latter bank then well knew that it was intended for such purpose; and that such bank at the time of the deposit of the check had notice that such deposit was made for that purpose and was to be applied to the payment of the Dixon accommodation check. This finding is not without some evidence for its support. The messenger by whom the plaintiffs sent the check to the Tradesmen's Bank testified that he handed the check to the teller of that bank and then told him to apply it to the payment of a check Dixon had given to the plaintiffs the day before. For the purposes of this review, in view of such evidence and finding, it must be assumed that the defendant had notice that the deposit was specially made to supply a fund to pay the Dixon check. This check had been endorsed by the plaintiffs and placed to their credit in the Hanover Bank when their check on that bank was certified. And as between them and Dixon, the latter had no right to divert the fund produced by the deposit in the Tradesmen's Bank from its purpose and subject them to liability upon the endorsement so made of his check. The plaintiffs' check represented their money, and was deposited with the bank to carry out their agreement with Dixon, and this being accomplished they would also be relieved from liability as such endorsers. When the defendant received it with notice that the deposit was made to pay a check given by Dixon to the plaintiffs, it was denied the right to treat the fund as a general deposit on Dixon's account; and it must be deemed to have been

placed to the credit of Dixon subject to the qualified purpose or trust of which the defendant was then advised the deposit was made. Van Alen v. Bank, 52 N. Y., 1; People v. City Bank of Rochester, 96 id., 32; Nat. Bank v. Insurance Co., 104 U. S., 64.

The omission in the deposit slip to make any reference to the purpose of the deposit other than that it be made to the credit of Dixon, was only a circumstance bearing upon the disputed question of fact, upon which the weight of evidence must here be treated as conclusively disposed of in the court below.

The trans

The president of the defendant, as a witness in its behalf, was asked when he first heard of any claim on the part of the plaintiffs that at the time of the deposit of their check, the receiving teller was told it was to meet a particular check and an objection being taken his answer was excluded and exception taken. There is no support for the contention that this was error. action of making the deposit by the plaintiffs' messenger was with the teller only, and when the president first heard that it was claimed to have been made for a special purpose was immaterial. It could have no legitimate bearing upon the question whether any or what communication was made to the teller at the time of the delivery to him of the check for credit, qualifying its purpose. None of the defendant's exceptions were well taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except HAIGHT, J., absent.

HORACE B. CLAFLIN et al., App'lts, v. WILLIAM B. BOORUM et al., Resp'ts.'

(Court of Appeals, Second Division, Filed October 28, 1890.)

BILLS AND NOTES-USURY-LEGAL INCEPTION.

Notes, made by defendants to their own order, were delivered by them to one Follett, a note broker, for sale at a rate of interest not exceeding six per cent. per annum. Follett sold the notes to Seney at a discount which made the interest reserved amount to ten per cent. per annum, and afterwards failed, owing defendants the proceeds of said notes and of several others. Held, that the notes in question had no legal inception when sold to Seney and the transaction was a loan by him at a usurious rate to defendants, through Follett, and the notes were void.

APPEAL from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon the verdict of a jury, and also affirming an order denying a motion for a new trial.

This action was brought upon two promissory notes for $5,831.92 each, dated respectively August 12 and August 26, 1882, made by the defendants under their firm name of "Boorum & Pease," and payable to their own order fourm onths after date, The defenses interposed were fraudulent diversion and usury.

Upon the trial, it appeared that said notes, although bearing the dates above mentioned, were not, in fact, made until September 5, 1882, when they were delivered by the defendants to one 1 Affirming 2 N. Y. State Rep., 72.

Alonzo Follett, a note broker, for sale at a rate of interest not exceeding six per cent. per annum. Evidence was given tending to show that Follett discounted the notes himself by agreeing to lend to the defendants the amount thereof, less legal interest, and crediting the same in an account that he had with them upon his books. The jury found, however, upon a conflict of evidence, that he never owned the notes, and that his only connection therewith was as a note broker. Follett sold the notes to one Seney before they had had an inception, at a discount which made the interest reserved amount to ten per cent. per annum, and shortly afterward failed, owing the defendants not only the entire proceeds of the notes in question, but also the proceeds of several others, aggregating a large sum, that had been entrusted to him for sale under similar circumstances.

It also appeared that he had been employed for several years by the defendants, and many other firms in good credit, to sell their accommodation paper on the best terms that he could, but not to exceed the legal rate of interest. He opened accounts with his principals, in which he credited to them the proceeds of 1.btes when sold less his commissions, and charged to them the checks which they drew upon him. Before he failed he had become largely indebted to those who thus employed him, and in order to keep up his credit and induce them to let him have more notes to sell, he frequently credited the proceeds of notes as if sold at or under the legal rate, when he had been compelled to sell them at a usurious rate. He even credited paper that he had disposed of at twenty-four per cent. as sold at from three and one-half to five per cent. He paid the difference himself as long as he could, but was soon forced to make an assignment. Henry Thompson, for app'lts; John E. Parsons, for resp'ts.

VANN, J.-The sale of accommodation paper is merely a loan of money, the purchaser being the lender and the seller the borrower. Clark v. Sisson, 22 N. Y., 312, 316; Newell v. Doty, 33 id., 83, 85; Eustman v. Shaw, 65 id., 522, 530; Tiedemann v. Ackerman, 16 Hun, 307; S. C., 84 N. Y., 677; Miller v. Zeimer, 111 id., 441, 444; 19 N. Y. State Rep., 120.

The notes in question had no legal inception when sold to Seney, and the transaction, therefore, was a loan by him to the defendants, through the agency of Follett. On or about the 5th of September, 1882, Seney, the lender, delivered $5,668.30 to Follett for the defendants, the borrowers, and received therefor their promise to pay $5,831.92 on the 15th of December following, and thus the note of August 12th was disposed of. At about the same time Seney delivered $5,645.62 to the agent of defendants for them, and received therefor the note of August 26th, which was a promise to pay $5,831.92 on the 29th of December then next. Seney thus exacted a promise to pay interest at a prohibited rate, and the promise by force of the statute was void 4 R. S., 8th ed., 2513, § 5. Upon the delivery of the notes to Seney and the payment by him of said sums, the transN. Y. STATE REP., VOL. XXXIII. 81