That upon proof of these circumstances the jury were war ranted in finding the fact of eviction is hardly a disputable proposition in the jurisprudence of New York. Tallman v. Murphy, 120 N. Y. 345; Koehler -. Scheider, 15 Daly, 198. 199; Bradley -'. DeGoicouria, 12 id. 393, 397; Duff r. Hart, 40 N. Y. St. Repr. 676; Denisou v. Ford, 7 Daly, 384, Bank p. Newton, 57 How. Pr. 152; 76 N. Y. 616; Cohen 7'. Dupont, i Sandf. 260; Dyett P Pcndleton, 8 Cow 728; Edgerton v. Page, 20 N. Y. 281."
114, it was held that the agreement of a divorced husband to pay a stipulated monthly sum to his di vorced wife on consideration that she " shall conduct herself with sobriety, and in a respectable, orderly, and virtuous manner," is binding. But in White v. Bluett, 23 L. J. (Ex.) 36, a promise on the part of the son "not to bore" the father was held insufficient to support a promise by the father.
NAMING OF CHILD — CONSIDERATION. — In Diffenderfer v. Scott, 32 N. E. Rep. 87, the Appellate Court of Indiana have held that a note given by the maker to a child, in consideration that the parents should name it after him, is valid. This followed Wolford v. Powers, 85 Ind. 294; s с. 44 Am. Rep. 16, without discussion In both cases the promisor orally agreed to provide for the child's education. In the latter case, in an opinion of some fifteen pages, the court referred to no case precisely in point. The following paragraph contains the substance of the discussion on principle : —
CONTRIBUTORY NEGLIGENCE HY NOISE. — A novel question of contributory negligence lately arose in the Supreme Court of New York, in Koehler v. Ro chester, etc. Ry. Co. (to appear in Hun's reports). The court said, by Dwight, P. J. : —
"The surrender, at the intestate's request, of the right or privilege of naming the appellant's child, was the yield ing of a consideration. The right to give his child a name was one which the father possessed, and one which he could not be deprived of against his consent. If the in testate chose to bargain for the exercise of this right, he should be bound; for by his bargain he limited and re strained the father's right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the intestate's request was of no value. It is difficult, if not impossible, to invent even a plausible reason for affirm ing that such right or privilege is absolutely worthless The father is the natural guardian of his child, and entitled to its services during infancy, and within this natural right must fall the privilege of bestowing a name upon it. In yielding to the intestate's request, and in consideration of the promise accompanying it, the appellant certainly suf fered some deprivation and surrendered some right. The rule is, that ' It is sufficient if there be any damage or detriment to the plaintiff, though no actual benefit accrue to the party undertaking. ' Addison Cont., Sec. 9, Glas gow v Hobbs, 32 Ind. 440. Conceding that the intestate derived no benefit, still, as the appellant suffered some detriment and yielded л right, there is a legal considera tion."
There seems no answer to this reasoning, although the consideration was slighter than in Hamer 7>. -Sidway, 124 N. Y. 538; s. с 21 Am. St. Rep 693. where the uncle promised the nephew that if he would refrain from tippling, using tobacco, swearing, and gaming, until he came of age, he would pay him $5000. The court said : " It is sufficient that he restricted his law ful freedom of action within certain limits upon the faith of his uncle's agreement." See Lawson Con tracts. § 95. So in Dunton v. Dunton. 18 V. L. R.
"The plaintiff was hired as a musician to accompany a pleasure-party from Rochester to Irondequoit Bay, on a Sunday morning in August, 1892. There were twentyeight of the party, and they went and returned in a hired carry-all, driven by the owner. On their return, in the evening, they came into the city by Jennings Street, and it was just about nine o'clock when they reached the inter section of Jennings Street with North Avenue, on the east side of which was the track of the defendant's road. At this crossing the carry-all was struck by a locomotive en gine of the defendant, drawing a train from the north, and the plaintiff was badly injured. There was evidence strongly tending to show that as the carriage approached the crossing, and up to the moment of the collision, the company was engaged in hilarious singing and shouting, which must probably have prevented any effective listen ing for an approaching train. [The plaintiffwas acquainted with the locality, and knew a train was due about that time.] Such being the case, counsel for the defendant, at the proper time, requested the court to charge 'that if the plaintiff and his companions in the carry-all approached this railroad with music and singing, and that thereby they were prevented, or he was prevented, from hearing the bell of the train, if it was rung, he was guilty of contribu tory negligence, and cannot recover.' The court declined to vary the charge already given in this respect, and coun sel for defendant accepted But the court thereupon pro ceeded to instruct the jury further in this particular, and to the effect that only so far as the plaintiff concurred in making the noise, and was a party to it and helped it along, could he be charged with carelessness in going upon the crossing with such a noise about him. This was not what the court was requested to charge, but rather was calcu lated, we think, to convey an impression contrary to the purpose of the request. The proposition which we think was fairly presented by the request, was that it was negli gence in the plaintiff to go upon the track with the din of noise in his ears which prevented him from hearing the sound of the approaching train; and this without regard to whether he was making or helping to make the noise We think the proposition was a correct one; that it was the duty of the plaintiff — familiar as he was with the situa tion and its dangers, knowing that the train, if approach ing, could not be seen, and that the only safeguard was the sense of hearing — to refuse logo upon the crossing in
