text:
    Frederick F. Hoyer, Resp’t, v. Village of North Tonawanda, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Municipal corporation—Streets—Excavations.
    A village is liable under its grant, for injuries caused by an excava- . tian in its street, left without signal lights or guards, though made on the day of the injury.
    8. Same.
    It is chargeable with notice of an excavation in street made under a license to construct a street railway.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial. ■

      Root, Orton & Baldwin, for app’lt; George W. Cothran, for resp’t.
   Bradley, J.

In the evening of December 9, 1892, the plaintiff's buggy in which he was ridiug, on Yandervoort street, in the village of North Tonawanda, was overturned, and he was thrown out and injured. He charges that his injury was caused by the negligence of the defendant. Tlie occasion of the accident was an excavation made in the street by the Tonawanda Street-Railroad Company, which was proceeding to construct its road in that street. For that purpose the company, on the day of the injury, had excavated a place for its location there. The plaintiff, not being aware or advised of the situation, drove into the excavation, causing the injury. It was dark, and the evidence on the part of the plaintiff tends to prove that there were no barriers or lights, other than the electric lights at some distance from the place in question to warn him of the danger. Upon the subject of lights, there was a conflict in the evidence. Witnesses on the part of the defendant testified that there was a red light at the intersection of Thompson.and Vandervoort streets, where the plaintiff turned from the former into the latter, and another south on Vandervoort street. The question whether or not such lights were there was one of fact for the jury.

The village authorities had, in the spring before, granted to the company the franchise to construct its railroad in various streets of the village, including that in question, and thereafter the company had been engaged in the work of construction of its road; but nothing for that purpose had before that day been done in that particular locality. The jury were, by the evidence, permitted to find that the condition in which it was left at the close of that day was dangerous to the public travel, and that no suitable guards or means were provided to warn persons driving in the streets of the danger. It is, however, urged that notice of the unsafe condition of the street at the place in question was not imputable to the defendant, and for that reason the exception to the denial of the motion for a nonsuit was well taken. The trustees knew that the company had been during the summer engaged in tearing up streets in places, preparatory to the construction of its railroad ; and, in the grant of the permit to construct it, some provision was made for supervision of the street committee of the board of trustees; and, as to the public, the duty was with the latter to ex ercise care for the protection of the travel upon the streets. The trustees were advised that the work which the company was doing for the purpose of the construction of its road rendered the portions of the streets where they were so engaged unsafe, and that it was essential that some means should be provided as a warning of the danger which otherwise might be encountered by the persons passing over the streets in vehicles; and with a view to that, it would not be unreasonable to suppose that they may have deemed it their duty to observe where the company was doing it work, and to take precautionary measures for the safety of travel within the village. The trustee may have supposed and assumed that the company would do all that was essential to that purpose; but this did not necessarily excuse them from that reasonable care and vigilance which their duty to the public imposed upon them. Pettengill v. City of Yonkers, 116 N. Y. 558; 27 St. Rep. 531; Masterton v. Village of Mt. Vernon, 58 N. Y. 391. Inasmuch as the excavation was not the act of the defendant through any of its officers or employes, notice of it, expressed or implied, was requisite to charge the defendant with negligence. When a defective condition of a street is produced by some sudden cause, or by the act of a trespasser, or by some means not anticipated, a reasonable time is requisite to raise the implication of notice to the municipal authorities. This, after such time, could be implied from the fact that the supervision and care of the streets are within the duties which they are required to observe and exercise, and then it may be supposed that those charged with such duty have become cognizant of the situation which requires their attention. What is the time requisite to charge the municipal corporation with such notice is dependent upon circumstances. In the present case, excavation in the streets, in the manner and for the purpose which it was done by the railroad company, was made pursuant to the permission given by the defendant. The latter, therefore, was chargeable with knowledge of what was being done by the company in the streets, where its franchise, so granted to it, permitted the construction of the railroad, and was advised of the necessity of providing some means for warning people to avoid the danger of entering the portions of the street thus, for the time being, rendered unsafe for travel; and whether the defendant was chargeable with a want of reasonable diligence in not having seen to it that safeguards were provided for the purpose at the time and place in question, and whether the plaintiff’s injury was attributable to the negligence of the defendant, were questions for the jury. Wendell v. Mayor, 4 Keyes, 261; 4 Abb. Dec. 563 ; Hume v. Mayor, 74 N. Y. 264. While the plaintiff, if nothing appeared to indicate to the contrary, was permitted to assume that he could safely proceed, he, nevertheless, was required to exercise care to avoid any danger which, under the circumstances, he had any reason to apprehend may have existed. He knew that the company was proceeding with the work of construction of its railroad in the streets, but had not been advised that it was so engaged at the place in question. He went over the street the day before. It was then in good condition. If, as the evidence on his part tended to prove, no suitable precautionary means were provided to warn persons not to proceed into the place of the accident, the jury were permitted to find that the plaintiff was free from contributory negligence, and that his injury was attributable to the negligence of the defendant. These facts were properly submitted to the jury.

The judgment should be affirmed. All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    In the Matter of the Estate of Samuel Lawrence, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Executobs, etc.—Sale oe land—Rights oe devisees.
    The sale of land by one devisee does not charge the land, remaining in the hands of the other devisees, primarily with the entire debts of the decedent.
    Appeal from a. decree directing a sale.

      E. K. Burnham, for app’lts; H. R. Durfee, for resp’ts Werne and Tuttle; Charles McLouth, for resp’t Saxton.
   Bradley, J.

The appeal is from so much of the surrogate’s decree as directs that the farm in Ontario county be first charged with the payment of the debt due to the petitioner, and on the part of the appellants it is insisted that such direction is in violation of the statute, which provides :

“ Where the decree directs the sale of two or more parcels of real property, of which the decedent died seized, * * * the decree may direct the sale to be made in the order which the surrogate deems just, unless it appears that one or more distinct parcels, of which the decedent died seized, have been devised by him or sold by his heirs; in which case the several distinct parcels must be sold in the following order: (1) Property which descended to the decedent’s heirs, and has not been sold by them. (2) Property so descended which has been sold by them. (3) Property which has been devised, and has not been sold by the devisee. (4) Property so devised which has been sold by the devisee.” Code Civ. ¡Pro., § 2763.

The testator died seized of two parcels only of real property. As neither of them descended to his heirs, the first and second clauses of that section have no application to the present case. The farm in Ontario county was devised to his son, Isaac J. Lawrence. He, by mortgage, conveyed it to the appellant William Mott. For that reason it is urged that it is taken from the operation of the third clause, and comes within the fourth, and that it is not chargeable with the payment of the debts of the decedent until after the Wayne county premises have been sold, and the proceeds of the sale found to be insufficient to pay the debts. By the will the testator intended to give his daughter, Mrs. Werne, and her next of kin, the benefit of the Wayne property: and, for that purpose, he directed that it and all his estate other than the Ontario farm, be sold, and the proceeds, to the amount of $4,000, be held by his executor, in trust as there directed, for his daughter and her next of kin. And although this direction to sell the Wayne property for the purposes of the trust, was an equitable conversion of it into personalty, the daughter and her next of kin were made the beneficiaries of the will as to that property as-effectually as if it had been devised to them. The grant of the house and lot by the executor to secure the payment of his debt was not within the power of sale given to him. The Ontario county farm, devised to the son, was conveyed by him, within the meaning of the statute; and the question arises whether it is entitled to such construction as to primarily charge the Wayne premises with the payment of the debts of the decedent. Such effect given to the statute w.ould seem to work injustice, and, as the consequence, might charge the burden upon one of the several devisees, if he alone had not conveyed property devised to him, as he could then have only the personal liability of the other devisees for indemnity, and such remedy might be of no value for that purpose. The section referred to of the Code is a substitute for the previous statute, which provided that the order should specify the lands to be sold; and the surrogate might direct the order in which several tracts should be sold, and should order that the part descending to heirs be sold before that devised; “ and, if it appear that any lands devised or descended have been sold by the heirs of devisees, then the lands remaining in their hands unsold shall be ordered to be first sold.” 2 Rev. St. p. 103, §20. ' While the language of § 2763 of the Code may be susceptible of a construction somewhat different from that of the ■ provisions of the Revised Statutes, it may be supposed that the intent was that it should, in its purpose and effect, be substantially the same. The fair and equitable construction of the statute would seem to be such as to import that the property referred to as devised, and no't sold, is that remaining unsold of the particular devisee, who may have conveyed a portion only of the estate devised to him, and not that of the other devisees, who have not conveyed the property devised to them. This is a reasonable view of the construction of the statute, and was that taken of such provision of the Revised Statutes in Re Clark, 2 Redf. Sur. 225. Any other construction of the present statute might, as has been observed, have the effect to primarily charge the entire debts of a decedent upon the property devised to one of several devisees. This it cannot be assumed was in the contemplation of the statute, nor does its language necessarily require a construction which may be promotive of such injustice in its practical operation.

There is a further consideration which equity will recognize as between the beneficiaries of the two properties. The debt upon which the petition is founded is that of Issac J. Lawrence, the devisee of the Ontario county farm. The liability of the decedent arose from his relation as accommodation indorser of the note by which the debt is evidenced. Upon equitable principles applicable to such relation, the property devised to Isaac J. Lawrence should be primarily charged with the debt in this proceeding; and in the view taken of the statute, it was within the power of the surrogate to determine that the sale of the lands be made in the order directed by the decree. The decree of the surrogate should therefore be affirmed.

All concur.


author: Bradley,—

text:
    Martin D. Chace, Resp’t, v. Warsaw Waterworks Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Injunction—Diversion of stream.
    The diversion of a stream will be enjoined.
    2. Estoppel—Riparian owner.
    A riparian owner is not estopped from maintaining an action for the diversion of a stream from the fact that he is receiving his supply of water for domestic purposes from the defendant water company.
    Appeal from a judgment in favor of plaintiff.

      E. M. Bartlett, for app’lt; Charles D. Newton, for resp’t.
   Bradley,—

The action was commenced in March 1890, to re-stain the defendant from diversion of the waters of Gibson creek from its natural channel. The plaintiff had for upwards of 20 years been the owner of a grist mill and premises adjacent to Oatka creek, in the town of Warsaw, county of Wyoming, of which latter creek the Gibson creek is a tributary, intersecting it about one mile above the plaintiff’s mill. In 1889 the defendant constructed ' a dam, 10 feet high and about 60 feet in length, across the Gibson creek, about 2 miles above its intersection with Oatka creek, for the purpose of there holding the water, and making a reservoir to supply water to the village of Warsaw, and for such purposes as the defendant should desire to appropriate it. The plaintiff, deeming this an invasion to the prejudice of his rights to have the water of Gibson creek flow into and along Oatka creek, as contribution to the power for the operation of his mill, seeks by this action to enjoin the defendant from thus diverting the waters of the creek. The plaintiff’s mill has three run of stone used for grinding flour and. feed, and is operated by the power of water taken by means of a race from Oatka creek. Both of those creeks have well-defined natural channels, wherein the water has flowed from time immemorial; and, on well-settled principles, the right of riparian owners is to have the waters of natural surface streams flow in their channels, subject only to such reasonable use by those above as does not operate as a diversion of the waters to the prejudice of the usufruct of those below; and, as a rule, the latter may be entitled to injunctive relief when requisite to protection against such diversion. Corning v. Troy I. & N. Factory, 39 Barb. 311 ; 40 N. Y. 191; Garwood v. N. Y. C. Railroad Co., 17 Hun, 356; 83 N. Y. 400; Smith v. City of Rochester, 38 Hun, 612; 104 N. Y. 674; 7 St. Rep. 867. The plaintiff was during the period before mentioned, and is, a riparian owner, where he makes use of the water to operate his mill; and the defendant is a riparian proprietor on Gibson creek, where its dam and reservoir are located. But the latter, by means of a pipe leading from it, diverts water from that creek; and the plaintiff alleges that such diversion is essentially injurious to him. This is a controverted question of fact. While the evidence on the part of the plaintiff is to the effect that the water power for his mill is essentially impaired by the defendant’s dam, and the taking of water from the reservoir produced by it, and that, as the consequence, the value of his mill property is depreciated, the evidence on the part of the defendant tends to prove that there is no appreciable diminution of water in Oatka creek occasioned by the dam and diversion, and that the plaintiff’s mill property is not thereby rendered of any less value than it otherwise would have. The referee found the fact against the defendant, and his finding in that respect is fairly supported by evidence. Since the land adjacent to the head waters of those creeks has been cleared up, and for about 12 years before the commencement of the action, there has not been a constant supply of water in them to operate the plaintiff’s mill during the dry season from June to September, inclusive. The scarcity of water has been such that the mill could be run only a small portion of the time during that period. At times of heavy rains, during such time, the water flows in great abundance, and soon thereafter the streams become nearly dry. Although the mill may not be very valuable for practical purposes, the plaintiff’s right to the full benefit of his water privilege cannot for that reason be lawfully invaded or impaired by diversion of the water which would otherwise reach his premises, and contribute to the motive power of his mill. The diversion is made through a 12-inch júpe at the dam, extending 1,800 feet; then 10-inch pipe, 1,000 feet; then 8-inch pipe, 600 feet; and then 3^-inch pipe, to the lower reservoir. From the 12-inch pipe there is a take off, by a 6-inch pipe, to certain salt company’s works. The discharging capacity of these pipes as they are located is estimated at upwards of 600,000 gallons, or upwards of 89,000 cubic feet, in 24 hours. This is the quantity of water which, by the means applied, may be diverted by the defendant from the creek in the season of the year when the use of all the water available to the parpóse may be desirable for the plaintiff to propel his wheel; and in view of the facts found by the referee and supported by the evidence, it cannot here be otherwise assumed.

It is urged that the plaintiff is estopped from maintaining this action by participation in the diversion of the water of the creek in the manner it is done. The defendant was incorporated in 1869, and then constructed its waterworks, taking water from sources other than Gibson creek. In that year, by means of two pipes, of size half inch, connected with defendant’s main, water was, and since has been, taken to the plaintiff’s dwelling houses, in the village of Warsaw, for domestic purposes. This, it is contended, has been and is such a participation in the diversion complained of as to deny to the plaintiff the right to assert that as against him it is unlawful or prejudicial.. The cause so sought for the charge of such acquiescence on his part as to estop him from seeking relief seems quite too remote for such purpose. When the plaintiff became the patron of the defendant, in 1869, by taking water at his houses by the means so provided, none of the supply was taken from Gibson creek; and the fact that he did not refuse to take any water from his connecting pipes, after water taken by the defendant from that creek was mingled with water from other sources, has no necessary signifianceby way of acquiescence in the diversion of the water in question. Galway v. Met. El. Railway Co., 128 N. Y. 132 ; 40 St. Rep. 145. He did nothing in aid of the' act of diversion, or in applying the means to consummate it; nor is there any evidence of consent on his part. The cases cited by the learned counsel for the defendant do not support his proposition of participation or acquiescence in the diversion by the plaintiff.

It is contended that the case is not one for injunctive relief, because the damages sustained by the plaintiff are trivial, and that he should be left to his remedy at law. A well-recognized reason for granting injunctions is in the fact that it will save the necessity of multiplicity of suits which might and very likely would be the consequence of the denial of equitable relief; and to so qualify the injunction as to permit the diversion of the water from the creek to be continued by the defendant in such manner and to such extent as not to injure the plaintiff in the operation of his mill would still leave open for controversy the question whether to any and to what extent he may, from time to time, in the future, suffer damages by the diversion of water from the creek. This would very likely, and perhaps necessarily, be the consequence of such modified relief, since there apparently cannot, from the nature of the case, be declared any defined extent or measure of water which or any designated time or times when it can be diverted by the defendant’s works from the creek without prejudice to the plaintiffs right to the use of-the water flowing in the stream. It is therefore impracticable to adjudge any qualified permission of the defendant to do so. Nor can it well be held, in view of the facts found by the referee, and which the evidence permitted him to find, that the diversion of the water from Gibson creek, by the means provided for that purpose by the defendant, has not been, and may not substantially be, prejudicial to 'such right of the plaintiff as a riparian owner. The judgment should therefore be affirmed; but to enable the defendant without prejudice, if so advised, to take proceedings to acquire the right to thus take the water from the creek, the operation of the injunctive provision of the judgment appealed from is suspended six months from the time of the entry and notice of the judgment upon the decision of affirmance herein. All concur.


author: Bradley, J.—

text:
    William H. Muckle, Resp’t, v. Rochester Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Railroads—Street—Transfer ticket.
    A street railway company is liable, where its conductor makes a mistake in giving a transfer ticket, in consequence of which the passenger is ejected by the conductor of the connecting line.
    2. Same—Damages.
    The company is not liable for exemplary damages, in such case, for the act of its servant unless it authorized or ratified the act.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles J. Bissell, for app’lt; Charles Van Voorhis, for resp’t.
   Bradley, J.—

The action is to recover damages for an alleged assault upon the plaintiff while a passenger in one of the defendant’s cars. • In the afternoon of March 17, 1892, the plaintiff took passage upon an Exchange street car, going to what is known as the “Eour Corners,” where he desired.to take a West avenue car; paid his fare; asked for and received a transfer for that car. The plaintiff, at the Corners boarded a West avenue car, and when he presented the transfer ticket to the conductor the latter refused to receive it, for the reason that it was past the time within which it was available, and asked the plaintiff to pay his fare; and on his refusal to do so or leave the car the conductor took hold of the plaintiff, to remove him from it, but before it was accomplished he paid his fare, and was permitted to continue in his seat.

The payment by the plaintiff of a single fare of five cents entitled him to one continuous passage from any one to any other point of the railroad operated by the defendant. . Laws of 1890, chap. 565, § 101. The right of the plaintiff, on the payment made by him of his fare, was to take the West avenue car to the place of his destination. To accomplish the purpose of indicating such right of passage, to he observed by the several conductors of the cars upon which continuous passage should be desired by the passengers, the company adopted regulations to the effect that a transfer ticket should be given to them by the conductor of the car upon whicli the passage was taken, and that the transfer ticket should be so punched as to indicate that the passenger has ten minutes’ time at the place of connection within which to take the other car for which the transfer is given, and to be further punched to indicate the connecting line on which the passenger desires to proceed. Such a ticket had been provided, and was in use at the time in question. . The conductior gave the-plaintiff a transfer which purported to he good until 5:40 p. M. It was more than an hour after that time when he boarded the West avenue car; and because the time for use appeared, by the ticket, to have expired, the conductor of the latter car refused to permit him to ride without payment of his fare. There is some conflict in the evidence as to the time the plaintiff got on.to the Exchange street car, but the jury were permitted to find that it was then 6:40 P. M.; and, as the passage of the car to the Four Corners occupied only two minutes, it must be assumed that the difficulty arose from the mistake of the conductor in attempting to indicate by his punch mark the time within which the plaintiff could continue his passage on the West avenue car. The conductor thus made it appear that the plaintiff was not entitled to do it upon such transfer slip; and, in the observance of his instructions, it was the duty of the conductor to whom it was offered to refuse to accept it, and to require the plaintiff to pay his fare. The question is whether or not the plaintiff is entitled to the relief which he seeks by this action. While it is conceded he may have his remedy for breach of the contract, it is urged on the part of the defendant that he has no right of action for the cause alleged, because the defendant had provided suitable regulations for the management of the business of conveying passengers, and the transfer of them from one to another line of its road, so as to give to them the continuous passage on payment of a single fare as provided by the statute. In view of the fact, as the evidence tends to prove, that cars on all the linos of the road operated by the defendant in the city of Rochester pass each way any given point within every five to eight minutes, the system provided for transfer slips and their use will work effectually to accomplish the purpose, provided no mistakes or accidents occur to defeat its operation; and the fact that unforeseen causes may sometimes intervene, to produce inconvenience, does not necessarily render the regulations unreasonable or unsuitable for the purposes in view. However perfect they may be in any case, there is a possibility of interruption of their due execution by inadvertence, or other incidental cause. For such causes, provisions should, so far as practicable, be made, if they do not exist There is a reason for limiting the time within which a transfer ticket may be effectually used for the purpose of a continuous passage, in the fact that otherwise the opportunity might be taken to use or permit it to be used for other than the contemplated continuous passage, to the prejudice of the company. Eegulations are essential to the proper conduct and management of the business of any railroad corporation; and, upon a given state of facts, the question whether or not they are reasonable is one of law, to be determined by the court. Hibbard v. New York & Erie R. R. Co., 15 N. Y. 455; Vedder v. Fellows, 20 N. Y. 126; Railroad Co. v. Page, 22 Barb. 130; Railroad Co. v. Whittemore, 43 Ill. 420; Railroad Co. v. Rhodes, 25 Fla. 40; Railway Co. v. Lyons, 123 Pa. St. 140. In some of the states, it is held to be a question of fact, or a mixed question of law and fact, to be submitted to the jury, with proper instructions. It is so held in State v. Overton, 24 N. J. Law, 435; Day v. Owen, 5 Mich. 520; Bass v. Railway Co., 36 Wis. 450. There may be cases where the disposition of the controversy about the reasonableness of certain regulations is dependent upon the determination of controverted questions of fact. It may be seen that then such facts are for the jury. But then the view of the facts which will render the regulations reasonable is a question of law, for the court.

It appears that the system adopted by the defendant for the practical operation of its road is such as to give the requisite frequency to the running of its cars, on all' parts of its lines, for the supply to its patrons of continuous passage for single fares, by the observance and execution of the regulations in question ; and, in view of the facts as they appear by the record, the conclusion is required that such regulations of the defendant are reasonable. The failure of the plaintiff to obtain the continuous passage to which he was entitled on the payment of his fare did not arise from any defect in those regulations, but solely from the mistake of the conductor in the execution of them. The question is therefore presented whether the defendant is liable in tort for the act of the conductor of the West avenue car, who was j ustified by such regulations in refusing to permit the plaintiff to ride in the car without payment of his fare. Tins question has seemingly been one of diverse views of judicial writers. In Townsend v. N. Y. C. & H. R. Railroad Co., 56 N. Y. 295, the plaintiff, having a ticket for passage from Sing Sing to Bhinebeck, took a train which went no further than Poughkeepsie. Before the train reached there, the ticket was taken up by the conductor, and no evidence of his right to proceed further on the defendant’s road was given to him. He took passage on the next train, to complete his trip to Bhinebeck ; and on his refusal to pay fare, for the reasons before mentioned, and which he stated to the conductor, the latter forcibly ejected him from the tram. The views of Judge Grover, expressed in his opinion, were to the effect that the defendant was not liable in tort for the consequences of the wrongful act of the first conductor in taking up the plaintiff’s ticket. The court did not, however, necessarily determine that question, as there was another ground for the reversal of the court below. The plaintiff recovered on the retrial, and the recovery was sustained by the general term. Townsend v. N. Y. C. & H. R. R. R. Co., 6 Thomp. & C. 495. And Mr. Justice Learned, cites, in support of his conclusion, Hamilton v. Third Ave. Railroad Co., 53 N. Y. 25, in which the opinion was also delivered by Judge Grover, who, in the latter case, refers to the Hamilton Case for the purpose of distinguishing the question presented in the two cases. Our attention is called to no other case in this state necessarily bearing upon the question. There are, how,ever, elsewhere, cases having some relation to it. Among those in which the actions founded upon principle similar to that of the plaintiff’s proposition in the present action have been sustained are the following cases : Palmer v. Railroad Co., 3 S. C. 580; Burnham v. Railway Co., 63 Me. 298; Railway Co. v. Fix, 88 Ind. 381; Murdock v. Railroad Co., 137 Mass. 295; Head v. Railway Co., 79 Ga. 358; Railroad Co. v. Riley, 68 Miss. 765. And of those tending to hold to the contrary are Yorton v. Railway Co., 54 Wis. 234; Frederick v. Railroad Co., 37 Mich. 342 ; Bradshaw v. Railroad Co., 135 Mass. 407. The latter case and that of Murdock v. Railroad Co., supra, may be distinguished by the fact that the familiarity of the plaintiff in the Bradshaw Case with the practice of the company, and the checks used by it, was such that, by inspection, he would have observed that he had not received the one suitable to his purpose, while in the other case the plaintiff was assured by the ticket seller that the ticket entitled him to passage to his place of destination. In the present case the plaintiff was advised by the transfer ticket that it permitted him to take a West avenue car, and that he must do so within 10 minutes, but he did not understand what was the meaning of the punch mark which was intended to advise the conductor of that car of the time the transfer slip was issued. It must be assumed, on the evidence, that the plaintiff took the West avenue car that left the Corners after lie reached there, and that he so informed the conductor. The plaintiff was given by the statute the right to a continuous passage to his place of destination, on payment of the single fare, and it cannot be said that it was by any fault or neglect on his part that the right was denied to him. It is a genera] rule that a carrier of passengers is answerable for all the consequences to a passenger of the willful conduct or negligence of the persons employed by it, in the execution of the duty it has assumed towards him. The defendant had, by its contract with the plaintiff, undertaken, for a consideration paid, to carry him to his place of destination, and pursuant to it he had the right of passage; and, as between him and the defendant, he was at liberty to refuse to repay his fare, and to insist upon having his continuous passage. In violation of that right, the defendant, by its conductor, proceeded to forcibly eject him from the car, in which he was rightfully seated as a passenger. Although the conductor, personally, may have been justified by his instructians to do so, the defendant was put in the wrong by the act of the other conductor, and was no more justified in the attempted act of ejection than it would have been if he had at the time had, and presented, the evidence of his right to remain as a passenger in the car without further payment. It follows, if these views are correct, that the defendant is liable to the plaintiff for the consequences of such violence upon his person as was used by the conductor for the purpose of ejecting him from the car.

The court erred in the refusal to charge, as requested, that the jury could give the plaintiff compensatory damages only, and that, in no view of the evidence, could they award to him punitive damages. This is also a question about which the judicial writers of several of the states disagree with those of others of them. The rule adopted by the courts of this state is such as not to permit the recovery of exemplary damages against the master for the act or negligence of his servant, unless he has authorized his misconduct, or ratified it, or unless the conduct complained of is that of the servant while he is in the service after his unfitness for it is known to the master. Cleghorn v. N. Y. C. & H. R. Railroad Co., 56 N. Y. 44; Hendricks v. Sixth Ave. Railroad Co., 44 N. Y. Supr. Ct. 8; Murphy v. C. P., N. & E. R. Railroad Co., 48 N. Y. Supr. Ct. 96; Fisher v. Met. El. Railway Co., 34 Hun, 433; Donivan v. Man. Railway Co., 49 St. Rep. 722; 21 N. Y. Supp. 457. And the like rule is applicable in an action against the master for the act of the servant, where the latter would not be chargeable with punitive damages if he were the party defendant. Hamilton v. Third Ave. Railroad Co., 53 N. Y. 25; Townsend v. N. Y. C. & H. R. Railroad Co., 56 N. Y. 295. It cannot well be claimed that the conductor who sought to eject the plaintiff from the car would be chargeable with punitive damages. He did what appeared to him to be his duty, and therefore it may be assumed that he acted in good faith in the matter, and not wantonly. The two cases last above cited are quite applicable to this question in the present case. The judgment and order should be reversed, and a new trial granted; costs to abide the event.

All concur.


text:
    The People, Resp’t, v. Charles Flaherty, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

      1. Criminal law—Indictment—Rape.
    An indictment for a statutory offense is sufficient, when it charges the offense as the statute defines it, especially where it has no general name.
    2. Evidence—Rape.
    On the trial of an indictment for having sexual intercourse with a female under 16 years of age, evidence that she had such connection about the same time with others than defendant, is admissible to refute testimony corroborating her.
    Appeal from a judgment of conviction for rape.

      F. C. Peck, for app’lt; William Carter, Dist. Atty., and Edward R. Coyne, for the People.
   Bradley, J.

—The indictment contained two counts. By the first, it is charged that the defendant, on the 1st day of July, 1892, at the town of Mt. Morris, in the county of Livingston, “did wickedly and feloniously perpetrate an act of sexual intercourse with one Mary Sweeney, a female not his wife, the said Mary Sweeney being at said time a female under the age of sixteen years, contrary to the statute in such case made and provided, and against the peace of the people of the state of Mew York, and their dignity." The second count, for the purposes of any question presented, is not essentially different from the first. The defendant demurred to the indictment on the grounds (1) that the acts stated in it do not constitute a crime ; (2) that no crime is charged by it. This demurrer was overruled, and the exception taken, and defendant thereupon entered his plea of not guilty to the indictment. The trial was had, and the result was a verdict of guilty, and a judgment of conviction.

The question raised by the demurrer requires a reference to the statute, which, at the time of the commission of the alleged offense, provided that: “Bape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent. A person perpetrating such an act or an act of sexual intercourse with a female not his wife (1) when the female is under the age of sixteen years * * * or (3) when her resistance is forcibly overcome * * * is punishable by imprisonment,” etc. Pen. Code, § 278.

The objection made to the indictment was that it failed to charge the. defendant with any defined crime. It did set forth the act which was, by the statute, a criminal offense. Was anything further requisite ? The statute provides that “an indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime.” Code Or. Proe. § 254. This is the definition of a presentment by the grand jury. Then, as to its form and contents the statute further provides that “the indictment must contain (1) the title of the action, specifying the name of the court in which the indictment is presented, and the names of the parties. (2) A plain and concise statement of the act constituting the crime without unnecessary repetition” (Id. § 275); that “words used in a statute to define a crime need not be strictly pursued in the indictment; but other words conveying the same meaning, may be used” (Id. § 283.); that “no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendant upon the merits" (Id. § 285); and that “neither presumptions of law, nor matters of which judicial notice is taken need be stated in an indictment" (Id. § 286).

It is, however, urged on the part of the defendant that, although the act charged in the indictment was a crime, the definition of it was “rape,” and that the allegation in it of such definition was essential to its support. It is the general-rule that an indictment for a statutory offenses is sufficient when it charges the offense as the statute defines it. Phelps v. People, 72 N. Y. 334; Tully v. People, 67 N. Y. 15. This the indictment iu the present case does with substantial precision. When a crime has a general name, it is desirable, for certainty, that it be inserted in the indictment, as well as the act which constitutes it. Such is the form mentioned in the statute (Code Cr. Proc. § 276). But it does not, by the terms of that section, seem to be imperative in its application to all cases. It purports to give what may be substantially the form. In that respect, by its terms, it is not applicable to an offense having no general name. In People v. Maxon, 57 Hun, 367 : 32 St. Rep. 131; 33 Id. 1034, it was held that the crime charged as in the present indictment was not rape, because it did not come within the definition of that crime. By the Revised Statutes, the “carnally and unlawfully knowing any female child under the _ age of ten years” constituted the crime of rape, and was there so designated. 2 Rev. St. p. 663 § 22. The language of § 278 of the Penal Code differs from that of the prior statute on the subject, and, as it was at the time in question, is susceptible of a construction which rendered sexual intercouse against the will, or without the consent, of the female, essential to the crime of rape, as there defined, as held in People v. Maxon. In the view taken, it is unnecessary to consider the question whether or not the theory of the crime is such that a female within the designated age cannot consent to sexual intercourse, and therefore, in the legal sense, it is had against her will. However that may be, the act constituting the crime in the present case is concisely stated in the indictment, and there is no opportunity to misunderstand from it the nature of the offense charged, or is it susceptible of any other than one interpretation, and that one cannot mislead in that or any respect. In People v. Dumar, 106 N. Y. 502; 11 St. Rep. 19, and in People v. Connor, 126 N. Y. 278; 37 St. Rep. 23, the question presented here did not arise. Iu the former the indictment was held insufficient because it failed to state the act which constituted the crime. This the charge of larceny did not necessarily do. And, in the Connor Case, no question arose upon the sufficiency of the indictment There the conviction of the charge of rape upon a female upwards of 16 years of age was affirmed. As has been observed, the purpose of the statute to which reference has been made is that no indictment shall be deemed insufficient by reason of an imperfection in matter of form which does not tend to the prejudice of any substantial right of the defendant. The conclusion is that the indictment in question is sufficient, and therefore the demurrer was properly overruled.

In July, 1882, the defendant became, and thereafter, up to the time of the presentment of the charge in question against him, continued to be, the pastor in charge of St. Patrick’s Church, at Mt. Morris, FT. Y. The prosecutrix attended that church. She became 16 years of age July 4, 1892, and remained unmarried. She testified that upon eight occasions during the period commencing in February, 1892, and ending in June following, the defendant had sexual intercourse with her ; and other than by her testimony, evidence was given, tending to prove circumstances' corroborative of the charge of such intercourse by him with her within that period of time. The evidence on the part of the prosecution was sufficient to send the case to the jury. The defendant, by his testimony, fully contradicted the charge, and the evidence tending to prove it. It was for the jury to determine-what the truth was. The question of fact was submitted to them, and their verdict was supported by the evidence. After the people had given evidence tending to prove that the defendant had sexual intercourse with the prosecutrix twice in June, 1892,. and had proved that she had on March 16, 1893, given birth to a fully-developed child, the defendant offered to prove that certain other persons in the month of June, 1892, had sexual intercourse with her. This evidence, on the objection of the prosecution, was-excluded, and exception taken. The facts of pregnancy and childbirth were, of themselves, unimportant. Nor wras it important that such intercourse had been had with the prosecutrix by others. That fact would be no defense for the defendant, if he also had sexual intercourse with her while she was under the age of 16 years. But, so far as the evidence offered by the defendant may have had a bearing in refutation or contradiction of the charge made against him, it was competent When it was proven that. Miss Sweeney gave birth to a child in March, 1893, that fact, in view of her evidence that no person -other than the defendant had had sexual intercourse with her, was corroborative of the charge against him. It was evidently proved for such purpose, as it was-quite satisfactory evidence to the effect that such intercourse had been had with her by some person. The defendant, therefore, should have been permitted to prove that others, in the month of June, and thereabouts, had sexual intercourse with her, as bearing, so far as it might, against the charge of such intercourse-which that corroborative evidence tended to impute to him. The purpose of the evidence so offered by the defendant was legitimate. It cannot now be seen what may have been the effect of the evidence, if it had been received, or that the defendant may not have been prejudiced by its exclusion. The defendant’s exception was well taken, and for that reason the judgment and conviction should be reversed, and a new trial granted. All Concur.


author: Per Curiam.—

text:
    Clarence True, Resp’t, v. Richard C. Sibley, App’lt.

      (New York Superior Court, General Term,

      Filed June 11, 1894.)

    Appeal—Dismissal of.
    A special term cannot make an order declaring an appeal abandoned.
    Motion to strike the appeal from the calendar.

      A. Reymert, for pl’ff; Vanderpoel, Cuming & Goodwin, for def’t.
   Per Curiam.—

The application fails to show that the case on appeal, which confessedly was served, has been settled and ordered on file by order of the judge who tried the cause, or that the case has been declaring abandoned for failure of the appellent to procure its settlement or filing. The order obtained by the respondent at special term, declaring the appeal- abandoned for nonservice of the printed papers on the appeal within the proper time, is wholly irregular. It is, in effect, on order dismissing the entire appeal. The general term is the proper tribunal to make such an order. If the respondent had grounds which have not been disclosed for procuring an order declaring the case on appeal abandoned, he should have made the proper application and obtained the appropriate order. This would have left the appellant still at liberty to prosecute his appeal upon the judgment roll alone ; and, if thereupon he had failed to serve within the time prescribed the printed papers necessary for the prosecution of the last named appeal, the respondent might have moved at general term to have the cause stricken from the calendar, and for judgment. Upon the papers submitted, the motion, as made, must be denied, with $10 costs.


author: Herrick, J.—

text:
    Adaline Wood, as Executrix and Trustee, etc., Pl’ff, v. Albert E. Hall et al., Def’ts.

      (Supreme Court, Albany Special Term,

      Filed June 28, 1894.)

    Wills—Construction.
    A direction in a will that the principal might be used for the purpose of supporting testator’s wife and daughter for life in case the income of his estate should be so diminished as to be insufficient for such support “by reasons of any unexpected losses or other unforeseen contingency,” authorizes its use only in case the income should be so diminished as not to afford them a comfortable Support

      Mead & Halt, for pl’ff; Jerome & Nason, for def’ts.
   Herrick, J.—

The report of the referee in this matter is reversed, both upon the facts and upon the law, and the plaintiff is charged personally with all expenditures made by her in excess of the income of the estate. The amount allowed for legal services in these proceedings and in preparing the account therein is reduced to $250. The testator directed the investment of his estate in interest-bearing secureties, and that the income therefrom should be directed to the support of the plaintiff and his daughter, Maria Louisa, and after their death he provided for the division of his estate among certain residuary legatees named by him. The testator further provided as follows: “In case that it shall be necessary to the suitable and proper support and maintenance of either my said wife, Adaline, or my said daugther, Maria Louisa, or both, to devote or to apply any part of the principal of my said residuary estate so by me directed to be invested as aforesaid to the use, support, and maintenance of them, my said wife and daughter, or either of them, by reason of any unexpected losses, or other unforeseen contingency, by which said income might be so diminished as to be insufficient for the comfort and suitable support and maintenance of my said wife and daughter, that then and in such case my said executor and executrix, as such trustees as aforesaid, are authorized so to use and apply such portion of the said principal as shall or may so become necessary for the comfort, support, and maintenance of my said wife and daughter, or either of them.”

The testator’s meaning seems to me very plain. It was that the principal of the estate should only be resorted to to support his widow and daughter when the income from it should be diminished by “unexpected losses, or other unforeseen contingency.” He did not mean by that that the principal could be resorted to if the income proved insufficient to support them in the manner he was supporting them, when he had not only the same principal to draw from, but also the income arising from his business and business efforts and labors. "Such diminution of income is not one that would come within the definition of “unexpected losses, or other unforeseen contingency.” This matter has already been before the court, and was then returned by me to the referee for a rehearing, upon the ground that the evidence did not show that the expenditures made by the plaintiff were necessary for the support of herself and her daughter. The additional evidence taken on the rehearing is insufficient to satisfy me that the expenditures made by her were necessary. A number of highly respectable witnesses gave testimony as to what it would cost to support the plaintiff in the station in which she is living, and the testimony that was received as to her expenditures seems to have been received and considered upon what appears to me to be an entirely erroneous theory. That theory can best be illustrated by two questions propounded to the plaintiff upon the hearing, and her answers thereto: “Q. Could you have supported and maintained yourself • and daughter up®n the income from this estate each year, as it appears in your account, in that comfort and manner of living and enjoyment of life in which you and she had been accustomed during the lifetime of your husband? Ans. I could not. Q. Could you have supported and maintained yourself and daughter each year mentioned in the account, in the comfort and enjoyment and in the manner of living in which you and she had lived in the lifetime of your husband, for any less than you have expended, as shown by your account? Ans. Ho.”

The witnesses who were called were shown to be familiar with the society in which plaintiff moved, and her manner of living and entertaining, and they gave their opinion as to about what it would cost per annum to support and maintain her in that manner of living. The husband of plaintiff was a business man, who during his lifetime conducted quite a large business, and his income for the last 10 years of his life, as testified to by the plaintiff, would average at least $8,000 a year; and she says her expenditures during his lifetime for maintaining the family were about $5,000 a year. He left an estate, which, after the payment of debts, amounted to about $27,000, and which has produced on an average an annual income of about $1,400. With this estate the plaintiff seems to think that she is justified in attempting to maintain the same style of living and expenditure that she did during her husband’s lifetime, when his income was $8,000 a year; and, as a result of that effort, the estate has melted away from $27,000 to $15,000 since the year 1882. Counsel attempt to justify these expenditures as necessary to maintain her in her position in life. Courts have frequently allowed expenditures of money from trust estates, and measured those expenditures by the position in life of the parties for whose benefit they were to be made, and the manner in which they had been accustomed to live; but such allowances have been made where the income arising from the estate was such as to premit of such expenditures being made, and I know of no case where the courts have directed such expenditures to be made from the principal of an estate where the income, although abundant to furnish the necessaries and comforts of life, was not sufficient to meet the expenditures necessary to be made in supporting the beneficiary in the style and manner of living to which he or she had theretofore been accustomed. The question is, not what is necessary to maintain her in her present style of living, but whether it is necessary for her to live in the style and manner she is living, and whether, under all the circumstances, she is j ustified in such a style and manner as require her to expend more than the income of the estate. It seems to me that it should need no argument to satisfy any reasonable person that the widow of a person receiving an income of $8,000 a year during his lifetime is not justified, upon any theory of maintaining the position in which she had been accustomed to live, in keeping up the same, or approximately the same, expenditures, when she is left with an estate of only $27,000, and an income of $1,400. So far as her position in life is measured by money, she is not in the same position she was before her bus-band’s death; and, so far as her social position depends upon money, she must readjust that social position to her changed financial condition. The income of the estate is sufficient, without encroaching upon the principal, to furnish a decent and respectable living to the plaintiff and her daughter during their entire lives, leaving then the principal to the residuary legatees. In endeavoring to maintain their former position and style of living, the plaintiff has so decreased the estate that in a very few years there will be neither income nor principal of the estate left, and the plaintiff and her daughter will be a charge upon the community, or upon her friends, and the residuary legatees will be deprived of that which the testator intended they should receive. The plaintiff’s pecuniary condition has been changed by her husband’s death, and she should change her manner of life to meet such changed condition. Her present position in life is not what it was, and her expenditures are to be measured by her present position not by her former.

I have refused to allow the sum set forth in her account for counsel fee in preparing this account and conducting these proceedings for several reasons,—one, that I think it too large for the services rendered ; another, that it seems to me that the charges made by attorneys for services in trust estates are growing too burdensome, and are larger than would be paid for the same service rendered for a business man in relation to his personal affairs ; another, that the plaintiff is defeated in the only matter upon which there has been any contest, and it has not been the policy of our law to grant the defeated party in a litigation costs, and I have never seen any reason why an exception should be made to that rule where the litigation is over an estate. I have serious doubts whether the whole charge should not be disallowed, but have concluded that perhaps, under all the circumstances, and considering what it has been customary to do in relation to trustee’s accounts, it is better to allow the amount I have indicated. Let an order be entered pursuant to tnis memorandum.


author: Haight, J.

text:
    Martha Brayman, Resp’t, v. William E. Stephens et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Witness—Competency—§ 839.
    The testimony of a claimant against the estate of a decedent that his claim has not been paid, is not competent.
    Appeal from a judgment entered on an order confirming the report of a referee, and from an order denying a motion for a new trial.

      Eli Soule, for app’lts ; A. M. Burrill, for resp’t.
   Haight, J.

—David W. Langley died on the 5th day of July,. 1888, and thereafter letters testamentary were issued to the defendants. The claim presented by the plaintiff was as follows :

March 21, 1877. To a quantity of millinery goods
sold and delivered at the agreed price of......... $250 Off
And interest on the same........................ 231 36
$481 36
“Allegany County—ss.; Martha A. Brayman, being duly sworn, says she was well acquanted with David W. Langley in his lifetime; that she sold and delivered to him the goods charged in the above bill at the price charged therein, and that no part of the same has in any manner been paid or satisfied, and is not secured by judgment or mortgage. Martha A. Brayman.
“Subscribed and sworn to before me this 1st day of June, 1889.
“W. J. Sutfin, Notary Public." -

This claim was rejected by the defendants, and upon stipulation, an order of reference was entered under the statute. It appears from the findings of the referee that Mrs. Brayman and Mrs. Langley were copartners, carrying on the business of milliners and dressmakers, and were each equal owners of the stock of goods; that an the 21st day of February, ‘1877, they sold and delivered the same to David W. Langley, who was to pay the plaintiff one-half of the amount of what the same should . bring when sold by him; that thereupon Langley sold the stock of goods to one James Eoblee without making an inventory thereof, and that within a month thereafter Eoblee sold the same to Mrs. Stone; that an inventory was then made, and their cost price and value amounted to the sum of $580, and that the interest of the plaintiff was of the value of $290. It further appears from the findings that on the 21st day of November, 1878, John. W. Brayman, the husband of the plaintiff, entered into an agreement with Langley, in and by which Langley agreed to sell and Brayman agreed to purchase a certain lot of land situate in the village of Canisteo for the sum of $1,367.86, which sum was to be paid in 10 equal semiannual payments, with interest; that thereafter, and daring the year 1879, it was agreed between the parties that Langley should keep the money that was due and owing the plaintiff on the sale of the millinery goods, and apply it on the last payments on the contract between Langley and Brayman; that, at the time of the death of Langley, in 1888, the contract remained in full force and effect, but the amount due and owing the-plaintiff had not been applied thereon. The referee further found that the goods so purchased of the plaintiff had not been paid for; that the testator was at the time of his death indebted to her in the sum of $290, and interest thereon from the 21st day of February, 1877, amounting to $571.86, for which sum he reported she was entitled to judgment.

The referee’s report appears to have been based upon the testimony of the plaintiff’s husband. It further appears from his testimony that on the 3d day of July, 1886, he assigned all his right, title, and interest in the land contract to Langley as collateral security for indorsing a note of $100 at the bank of Porter & Davis, and subsequently Langley had to pay the note so indorsed by him; that Langley died by reason of a gunshot wound, and, after receiving such wound, Brayman was at Langley’s house, in company with the defendants, and before his death, he said to them that Brayman had no interest in the house, but he wanted the executors to sell the house and lot, and, if there was any balance after deducting what was owing him, they should pay it to Brayman. It further appears that' the executors subsequently sold the premises, Brayman uniting with them in® such sale ; that there was a balance of $250, which the executors paid to Brayman. It appears that the referee has found the plaintiff’s claim to be greater than that presented by her to the executors, but no exception is taken to the report in this regard, and we are, therefore, not called upon to consider it. The contention on the part of the executors was that the claim had been paid ; that it had been applied upon the contract, as evidenced by the indorsement thereon of $367.86 November 21, 1882; and that the same was barred by the statute of limitations. The claim was of upwards of 12 years’ standing at the time it was presented to the executors, and, in view of its long standing, it was important for the plaintiff to show that the claim had not been paid. To do this she was sworn as a witness in her own behalf, and was asked the question,.“Have you ever had your pay for those goods?" This was objected to upon the ground that the question called for a personal transaction between the witness and the deceased. The objection was overruled, and “the evidence received as to all others excejpt the decedent.” An exception was taken by the defendants, and the witness answered that she had never been paid for the goods. We do not quite understand what the referee meant by receiving the evidence as to all the others except the decedent. The decedent was not a party; the defendants were. The evidence was received. It could have no bearing except as against the defendants, and tending to establish the plaintiff’s claim. We do not understand that it was competent. In McMurray v. McMurray, 45 St. Rep. 2 ; 17 N. Y. Supp. 657, the general term in the second department held that, under § 829 of the Code of Civil Procedure, a mortgagee is incompetent to testify that payment of the mortgage was never made to him by the deceased mortgagor. In Lerche v. Brasher, 37 Hun, 385, the action was for the services rendered to the defendant’s intestate. It was held error to allow the plaintiff to testify that his claim had not been paid. In Howell v. Van Sicklen, 6 Hun, 115, the action was upon a promissory note made by the defendant’s testator. It was held that the plaintiff should not have been permitted to testify that the note had not been paid, and for that reason the judgment should be reversed. Upon appeal to the court of appeals, this judgment was affirmed. 70 N. Y. 595. This is not an appeal from a decree of a surrogate’s court, and, consequently, the cases to which the respondent has called our attention have no application. In Wheeler v. Wheeler, 18 St. Rep. 445 ; 2 N. Y. Supp. 496, there was no issue or controversy in the case upon the question to which the evidence related. It is therefore not in point, for in this case the question of payment was the main and important issue in the case. The plaintiff was also permitted to testify, under objection and exception, that Langley was a man who boasted of his property; that he boasted of having notes, mortgages, and evidences of debt. We cannot understand the purpose of this evidence. He was dead, and his character and credibility were not involved. The plaintiff had no greater rights against the estate because of the wealth of the deceased. The evidence certainly was immaterial, and, had it been given before a jury, we should not hesitate in holding that its purpose was to prejudice, and therefore harmful. Perhaps before a referee we should not so regard it. Because of the first exception discussed, the judgment should be reversed, and a new trial granted, costs to abide the final award of costs. All concur.


text:
    National Life Association of Hartford, Pl’ff, v. Harriet E. Sturtevant, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Insubance—Life—Pboof of death.
    A statement in proofs of death is not conclusive upon the party furnishing them.
    2. Evidence—Documentara—Mabbiag® becobds.
    When a paper, purporting to be a record of marriages, births and deaths, is not admissible in evidence.

      Appeal from a judgment in favor of some of the defendants.
    W. A. Sutherland, for pl’ff; Wile & Goff, for app’lt; H. Greenfield, for resp’ts, Jennie C. and John Miner.
   Haight, J.

—This action was brought by the plaintiff for the purpose of obtaining the direction of the court as to the distribution of the funds in its hands between the defendants. It appears that the Mutual Relief Society of Rochester, N. Y., was a domestic corporation organized under the statute of the state, and did business as a mutual benefit association ; that on the 15th day of June, 1892, it became embarrassed, and, under an arrangement with the plaintiff, transferred its assets and business to the plaintiff, who agreed to receive payments of assessments then outstanding, and which had been issued by the Mutual Relief Society, and distribute the same to the parties entitled thereto. It further appears that on the 1st day of June, 1892, the Mutual Relief Society had issued its assessments upon its members for the payment of six death claims, among which was one on account of the death of Mary J. Carpenter, and another on account of the death of A. G. Sturtevant, upon which assessment there was received the sum of $8.636.08; that thereafter an additional assessment was made, upon which there was received the sum of $755, which sums were not sufficient to pay the claims in full. It further appears that before the commencement of this action the defendant Harriet E. Sturtevant, who is the beneficiary named in the certificate issued to A. G. Sturtevant, served a notice upon the plaintiff to the effect that she contested the right of the beneficiaries under the certificate issued to Mary J. Carpenter to' receive any of the avails of. the assessments, or of the funds in the hands of the plaintiff, and demanded that her pro rata share thereof be paid over to her. On the other hand, the defendants Jennie C. Miner and John Miner demanded that the amount derived upon the assessment on account of the claim to Mary J. Carpenter be paid over to them, they being the beneficiaries named in the certificate. It further appears that Mary J. Carpenter applied for membership in the Mutual Relief Society on the 80th day of July, 1880, and in her application therefor stated that she was born November 17, 1820 ; that she died dn the 21st day of September, 1891, and that, in the proofs of death furnished, her birth is stated to hav.e occurred on the 17th day of November, 1818 ; that, under the by-laws-of the society, persons who had passed their sixtieth birthday were ineligible to membership,77-for which it is claimed that Mary J. Carpenter, in stating in her application that she was born on the 17th day of November, 1820,—thus making herself at the time but 59 years of age,—practiced a fraud upon the association, which rendered void the certificate issued to her.

Upon the trial it appeared that the respondents, Jennie C. and John Miner, in making their proofs of death, left blank the date of birth of Mary J. Carpenter; that, some days after the same had been signed and sworn to by them, the date was filled in, without their authority or consent, by one Putnam, who had charge of the paper. We think this evidence was competent. It may be that the proofs of death became prima facie evidence, so far as the Miners were concerned, of the facts stated therein, but we do not understand it was conclusive evidence. If a mistake had been made, it was proper that it should be corrected or explained, and this they did in their testimony given on the trial. Wood, Ins., § 427 ; McMaster v. Insurance Company of North America, 55 N. Y. 222. We are thus brought to a consideration of the paper offered as the family register. It appears from the testimony that one James Simpson, who was the son of Mrs. Cárpenter, had in his possession a paper with an old-fashioned engraving on it, with lines and blank space for names, dates of birth, marriage and death; that it had upon it a number of names, among which was that of Mary Jane Hill, which was the maiden name of Mrs. Carpenter, and in the column headed “Date of Birth” was entered opposite her name, November 17, 1818. This paper was not produced upon the trial, but it appears that it was found among the papers of Simpson and his mother, and that it had been among their papers for a good many years; that it was known who wrote the paper; that it was not in her handwriting, but it all appeared to be written in the same handwriting, at one time, and in the some ink. Was this paper evidence as to her date of birth? 1 Greenl. Ev. § 105, in speaking upon the subject of the proof of facts of birth, marriages, and death, says: “The inscriptions on tombstones and other funeral monuments, engravings on rings, inscriptions on family portraits, charts of pedigree, and the like, are also admissible as original evidence of the same facts. Those which are proved to have been made by or under the direction of the deceased are admitted as his declarations. But if they have been publicly exhibited, and were well known to the family, the publicity of them supplies the defect of proof, in not showing that they were declarations of deceased members of the family, and they are admitted on the ground of tacit and common assent.”

It will be observed that the paper does not purport to contain original entries, for, if the events were entered thereon at the time of their occurrence, they, of necessity, would have been entered at different times, with different pens and ink. The fact that the paper appears to have been written in the same handwriting, at one time, and in the same ink, would indicate that, at most, it was but a copy. It does not appear that Mrs. Carpenter ever publicly exhibited this paper as containing her family record, or that it was made by her, or a deceased relative of hers. It does not distinctly appear that it was a paper belonging to her. The only evidence upon that subject appears in the testimony of Simpson, in which he states that it was found “ among her papers and mine.” For these reasons, we are of the opinion that it does not come within the rule making it admissible as evidence; and, without this, the appellant has failed to produce any evidence impeaching the statement by Mrs. Carpenter in her application for membership.

This view renders it unnecessary to consider the other questions discussed, or as to whether the appellant would be entitled to share in the fund derived from the assessment upon the claim of Mrs. Carpenter if it had been obtained through a fraud practiced by her upon the members of the association.

The judgment appealed from should be affirmed, with costs against the appellant. All concur.


text:
    David J. Kirkpatrick, Resp’t, v. James E. Briggs, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Evidence—Declarations.
    In an action for personal injuries, the declaration of a third person, made after the accident, is inadmissible!
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Charles F. Miller, for app’lt; Eugene Van Voorhis, for resp’t.
   Haight, J.

— This action was brought to recover damages for pei'sonal injuries. It is claimed that on the 6th day of January, 1892, the plaintiff was walking along the south sidewalk of Central avenue, in the city of Rochester, in front of the Brackett House; that it was storming heavily at the time, and he had his umbrella up; that the defendant’s basement extended under the sidewalk, through which there was an opening covered by trapdoors ; that at the time one of the doors was open, and lying over flat upon the sidewalk; that the plaintiff, in passing along the walk, stepped into the opening, receiving injuries for which this action was brought. Upon the trial, after the plaintiff had given evidence tending to support the allegations of the complaint, the defendant called as a witness, Thomas Burk, who was a servant in his employ, who testified that the first- thing he saw after the accident was his son picking the plaintiff up. He then asked the plaintiff, “ What did you go in there for ? ” and the plaintiff answered: “You must excuse me. I did not know where I was going.” James Burk, the son of the former witness, who was also in the employ of the defendant, testified that be helped the plaintiff out, brushed him off, and that he then walked away without assistance; that he asked him if he was hurt and the plaintiff said, “Ho; that is nothing;” that as the plaintiff walked down the street towards the opening, before the accident, he said to him, “Be careful of the opening. You may step in;” and that the plaintiff made no reply. The plaintiff was then recalled, and contradicted the testimony of the Burks as to the statements made by them to him, and his replies thereto. He further testified that a man with an ulster came up after he was helped out of the hole, and said to the man with the overalls on, which was the younger Burk, “ That is a very careless way to leave that, young fellow,” and that then the man with the overalls on put the trap-door down. Defendant’s counsel moved to strike out the testimony of the plaintiff as to the declarations of the man with the ulster. The court declined to entertain the motion. Thereupon at the close oí the charge, the defendant’s counsel requested the court to instruct the jury to disregard that evidence. The court declined toso instruct the jury, and the defendant’s counsel took an exception.

We do not understand that this evidence was competent. The negligence of the defendant appears to have been a question sharply litigated upon the trial. The declarations of third persons as to whether the act of leaving the trapdoor open was careless or not was but an expression of an opinion, and in this instance was also hearsay. It was not made until after the accident had happened, and the plaintiff had been helped out. It was no part of the res gestee. Davis v. Gallagher, 124 N. Y. 487-492; 86 St. Rep. 461. The trial court appears to have been of the opinion that the evidence was competent in rebuttal, but we do not so understand it. Undoubtedly, the plaintiff had the right to controvert the testimony given by the Burks. This he didv "But the Burks had testified to nothing in reference to the declarations of other persons than the plaintiff; and we fail to see how, or in what manner, the expression of an opinion by the man with the ulster tends in way to contradict the testimony of the Burks as to what was said on the occasion referred to.

It is now contended that the evidence did the defendant no harm; that it was negligence on the part of the defendant to leave the trapdoor open in the manner described. If we could so determine, as a matter of law, possibly this contention might have been sustained ; but whether it was negligence or not appears to have been a question of fact, which the court submitted to the jury. If the opening was guarded, or if the defendant’s servants stood by, warning persons traveling upon the walk, as they claim to have done, there might have been no negligence on the part of the defendant ; but it appears that these statements were controverted, and it thus became a question of fact, for the jury.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: Dwight, J.

text:
    Otto Kudik, App’lt, v. Lehigh Valley Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Master and servant—Negligence—Coupling and braking cars.
    Negligence of the master cannot be predicated upon error or omission in the coupling and braking of cars.
    2. Same—Rules.
    Rule and practice actually in force, -which render any other rule apparently unnecessary, avoid charge of negligence for not making rules.
    Appeal from a judgment, dismissing the complaint entered on a nonsuit, and from an order denying a motion for a new trial made on the minutes of the court.

      Philip Laing, for app’lt; Martin Carey, for resp’t.
   Dwight, J.

—The action was to recover damages for a bodily injury -sustained by the plaintiff while employed by the defendant, as a laborer, in unloading cars of coal, on its coal trestle in the city of Buffalo. The injury was the crushing of the plaintiff’s leg by the wheels of a car which- unexpectedly followed" the movement of the car in front of it, which latter the plaintiff was assisting to set in motion by pushing behind.

The first and leading specification in the complaint—of negligence on the part of the defendant causing and contributing to the accident in question—is as follows: “ That said defendant allowed one of the train of cars to. stand alone upon said trestle uncoupled, and without being braked, and that, on account of such neglect in not coupling said cars upon said trestle, said car came down upon said plaintiff, and inflicted the injuries hereinbefore set forth.”

It is very plain, we suppose, that this specifications states no cause of action against the defendant, but would, of itself, have been bad on demurrer. The necessary coupling and braking of cars are so manifestly mere details of work which must be intrusted to servants that negligence of the master cannot be predicated upon error or omission in their performance; and this, we think, is substantially all there is of the case before us. It was, as alleged in the specification quoted, precisely because the second of the two cars mentioned was not held by a brake, as it should have been, that it followed the other and injured the plaintiff.

The narrative of the occurrence is as follows: The loaded cars were, as was customary, taken up the trestle, in pairs, beyond the coal pockets where they were to be discharged, and from the place where they stood one car at a time was moved down by its own weight to the particular pocket which was to receive its load. It was not customary to couple each pair of cars to the other pairs, and to have done so would not have been useful in holding them in their place on the trestle. That part of the trestle where the cars stood and where the pockets opened was slightly inclined, so as to facilitate the movement of the single cars down to the pockets, but not so much inclined but that the cars might be held securely in place by their brakes while standing either at the pockets or above them. The evidence is undisputed that the. two cars in question were pushed up the trestle together, in the usual manner; that the brakes were set on the lowermost of the two, and a brakeman or car handler was in his place on the other car for the purpose of setting the brakes on it. Jf he did not set them, it was his error; if he did, they were loosened by some person by means unknown ; for it is conceded that the movement forward of the car would have been impossible if its brakes had been set when the other car was moved away from it. The two cars were uncoupled to enable the first one to be moved, and its brakes were loosened. It did not move at once, and the plaintiff was directed by his fore- » man to take hold at the hind end and push it. He did "so and the car started, but, as it moved away from the car behind it, the latter followed, and caught the plaintiff’s leg, with the result complained of.

There are in the complaint two other specifications of negligence on the part of the defendant. They are to the effect: (1) That the defendant neglected to make and promulgate proper rules for braking and coupling its cars while on the trestle ; (2) that the trestle itself was not properly and safely constructed, and was out of repair. In regard to the first of these charges it is to be said that no particular rule on the subject mentioned was shown to be either useful or practicable, while the evidence was undisputed that the rule which was in force and was perfectly understood by all concerned, viz. which required the bi-akes to be securely set upon all cars standing on the trestle, was entirely adequate to accomplish the purpose so for as a rule could do so, and that, if it had been observed in this case, the accident could not have occurred. The plaintiff himself testified that, if the brake had been set, the car could not have moved. The charge of negligence for not making "rules is avoided by the proof of a rule and practice actually in force which rendered any other rule apparently unnecessary. Morgan v. Hudson R. O. & Iron Co., 133 N. Y. 668; 45 St. Rep. 112; Berrigan v. N. Y., L. E. & W. Railroad Co., 131 N. Y. 584; 42 St. Rep. 858. In respect to the third specification, viz. i-of negligence in the construction and repair of the trestle,” the allegation is undoubtly sufficient; the failure is in the proof. In this respect three things were required to be shown : (1) That the trestle was improperly constructed or out of repair ; (2) that the defect so existing caused or contributed to cause the accident complained of; and (3) that the defect was one which, in the exercise of reasonable care on the part of the defendant, could have been remedied. We doubt if a case was made under either c f these requirements which warranted a submission of the question to the jury. There was, it is true, some evidence that the grade of the track was not absolutely uniform, and the fact that the first of the two cars required something more than the ordinary effort to move it may have been accounted for by the fact that the track upon which one or the other of its trucks stood was somewhat depressed ; but there was no evidence that the defect extended to the track under the second car, or that there was anything in its condition which caused that car to' move when it ought to have stood still. Indeed, the whole of this branch of the" case is answered, as we think, by the fact that the trestle was purposely constructed with a slope to enable the loaded cars to be moved to the pockets without the application of power, and that it was well understood by all engaged in the work that the brakes alone were relied upon to hold the loaded cars at rest on the trestle, as well as to control their motion and to stop them when moved to the pockets. In this case the evidence is undisputed that the accident was rendered possible by loosened brakes on the second car. There is no complaint that the brakes were not in proper order, and it is the testimony of the plaintiff himself that, if they had been set, the car could not have moved. How they came to be loosened is not shown ; but, whatever the negligence involved, it was that of a fellow servant, and not of the defendant. The case on the question of the defendant’s negligence is so clear that we do not deem it necessary to consider the counter charge of contributory negligence of the plaintiff, and we find no other question which requires discussion.

The judgment and order appealed from should be affirmed.

All concur. So ordered.


author: Dwight, P. J.

text:
    Hyman Bloom et al., Resp’ts, v. National United Benefit Savings and Loan Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Exceptions—Report of referee—Filins nunc pro tune.
    Leave to file exceptions nun e pro tune will be denied if made after confirmation of the referee’s report.
    2. Motion and order—Loches.
    The moving papers must show merits in an application for favor.
    Appeal from an order denying a motion for leave to file exceptions nunc pro tune to the report of a referee after confirmation, and for entry of final judgment thereon.

      J. H. Hopkins, for app’lts; J. B. M. Stevens, for resp’ts.
   Dwight, P. J.

—There seem to have been several good reasons for denying the defendants’ motion in this case. The action was in behalf of the plaintiffs named, and all others of the shareholders of the defendant company who might elect to come in as parties, to recover of the other defendants—certain directors of the company—for loss of .assets though the negligence and misfeasance of such defendants. The principal issues joined in the action had been tried, and determined in favor of the plaintiffs ; and an interlocutory judgment had been entered, which directed, among other things, that an account be stated of debts and liabilities of the company, for which the shareholders were or might be personally liable. A reference was accordingly had, to take and state such account. The referee made his report, which was duly filed, and notice of the filing was given to the defendants. A motion was duly noticed and made for the confirmation of the report, and for final judgment. The defendants were represented on the hearing of the motion, and opposed the confirmation of the report, although they had filed no exceptions thereto ; and they made, at that time, no request for leave to file exceptions, nor for time—before the confirmation of the report—in which to apply for such leave. The report was accordingly confirmed, and final judgment was directed and entered thereon; and it was only after the entry of such final judgment that notice was given on behalf of the defendants for leave to file exceptions nunc pro tune, on the ground of inadvertence. The motion was clearly too late. The attorney and the counsel for the defendants must have discovered on the hearing of the motion to confirm, if they did not know it before, that they had no exceptions filed to the report of the referee; and then was the time, if they desired to have exceptions, to ask for leave to file them then and there, or for a postponement of the confirmation of the report pending their application for such leave. this means, if the leave should be granted, the exceptions would be before the court on the motion to confirm, and for judgment. To interject exceptions' into the record nunc pro tune would be to malee a ease on appeal which was not the case upon which the order and judgment appealed from were made and entered.

There is another ground upon which we think the court might properly have denied the motion. The motion was for a favor,— to excuse loches. The moving papers should have shown merits in the application, viz. that there was some reasonable ground for the exceptions which leave was asked to file. So far as appears by the moving affidavit, there was no ground whatever for any exception, and the motion was a purely dilatory proceeding. The order appealed from should be affirmed. All concur.

So ordered, with $10 costs, and disbursements of this appeal.


text:
    Lewis F. W. Arend, Resp’t, v. Fremont C. Laing, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Contract—Reformation.
    Vendor may sue for reformation of contract of sale on the ground of mutual mistake.
    Appeal from an interlocutory judgment overruling a demurrer to a complaint.

      Philip A. Laing, for app’lt; E. L. Parker, for resp’t.
   Dwight, P. J.

—The action was by the vendor for the reformation and specific performance of an executory contract for the sale of land. The reformation desired is in the statement of the number of acres contained in the premises to be conveyed, and in-the total price, and the installments, to be paid therefor. In the contract the premises are described (1) by four boundaries,—two of which are public highways, one is a lot line, and the other the land oE an adjoining proprietor; (2) by name,—“Known as the ‘J. Besch Farm ” and (3) as the premises intended to be conveyed by 'a certain deed, citing the book and page of its record in Brie county. They are also described as containing 50.709 acres of land. The price to be paid is stated at $875 per acre. The total price is computed, accordingly, at $44,370.37, and the contract specifies the times and mode of payment of the several installments into which that sum is divided. After setting out the contract, the complaint alleges that the statement therein that the premises contain 50.709 acres of land was by the mutual mistake of the parties, whereas, in fact, they contain only 46.713 acres; and the relief sought is that the contract be reformed so as to conform to the fact in this respect, and that the amount of the total price, and of the several installments, to be paid, be corresponding! y reduced; and that the plaintiff have judgment for the specific performance of the contract as so reformed. The complaint also alleges default on the part of the defendant, and that, upon the discovery of the mistake of fact above mentioned, the plaintiff informed the defendant thereof, and offered to reduce, proportionately, the purchase price and the several payments mentioned in the contract, and he repeats the same offer by hjs complaint. The defendant demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was no doubt properly overruled.

Equity accords the relief of specific performance to the vendor in an executory contract for the sale of land, on the principle of mutuality. The vendee in such a contract, but for that relief in equity, would be without adequate remedy in case of refusal of his vendor to convey ; _and, since he may have his suit for specific performance, the vendor must be equally entitled to it, notwithstanding his action at law for the purchase money. And so, in respect to reformation, the vendee may, undoubtedly, have a mutual mistake in respect to the number of acres to be sold at a certain price per acre—and, consequently, in the price to be paid for the whole—corrected by a reformation of the contract; and so, on the principal of mutuality, the vendor who desires to perform his contract according to its intent may have the same relief in equity upon offering at the same time to do equity by making a corresponding reduction in the price tobe paid to him. Hill v. Buckley, 17 Ves. 394; Voorhees v. De Meyer, 2 Barb. 37; Paine v. Upton, 87 N. Y. 327, 331, 333. In this case there would seem but little question, on the face of the contract, as to the intent of the parties, viz. to contract for the purchase and sale of the land contained within the four boundaries mentioned, known as the “J„ Besch Farm,” and conveyed by the recorded deed to which reference was made; and that the exact quantity of land so contained was a secondary consideration, and to be controlled by the previous descriptions. It is also to be inferred from the price per acre agreed to be paid that the land so purchased was no longer to be employed as a farm, or, for any purpose, in a single parcel, but was to be plotted and sold in city lots. And in this there is some reason, at least, for supposing that the precise number of acres was not an essential element of the transaction. We think there is no serious criticism to be made of this complaint on the ground stated. The judgment appealed from must be affirmed, with costs, but with leave to defendant to withdraw demurrer and answer over in 20 days, on payment of costs of the demurrer and of this appeal. All concur. So ordered.


author: Lewis, J.

text:
    Florence A. Smith, App’lt, v. City of Rochester, Resp’t.

      (Supreme Court, General lerm, Fifth Department,

      Filed June 20, 1894.)

    Municipal corporations—Side walks—N otice .
    To charge the city of -Rochester with negligence under its charter, the evidence must show that a city commissioner oí highways had actual knowledge of the defective sidewalk.
    Mottos' for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Walter S. Hulbell, for pl’ff; C. D. Kiehel, for def’t.
   Lewis, J.

—This is an action to recover damages for bodily injuries sustained by the plaintiff while walking upon a sidewalk in the city of Eochester. The plaintiff claims that her injuries were caused by the sidewalk being out of repair. An abutting owner, in making some repairs, had removed the stone walk in front of his premises. He excavated the earth underneath, and constructed a temporary sidewalk over the excavation of sufficient length and width, and in the manner that such walks are ordinarily constructed. The defect consisted in his not having spiked the planks down. They had by use become separated from each other at the time the plaintiff was injured, and, in attempting to cross over the walk, she stepped into the opening between the planks, and was quite seriously injured. The charter of the city provided that the city should not be liable for injuries caused by defective-sidewalks unless an actual notice of the unsafe or dangerous condition thereof had given to the city officers having charge of the highways a reasonable time before the happening of any such in j ury.

This is the second time this case had been before this court upon appeal. The material facts of the case are fully stated in the opinion of Justice Macomber on former appeal. Smith v. City of Rochester, 46 St. Rep. 727; 19 N. Y. Supp. 459. We then held that a sidewalk inspector was not a city officer having charge of the highways of the city, and that a notice to that officer was not a sufficient notice under the provisions of the charter to charge the city. The supervision of the streets of the city is, by the charter, given to an executive board of three members, elected by the electors of the city. The members of the board are the commissioners of the highways of the city. The plaintiff, upon the second trial, attempted to prove the required notice to the executive board of the defect in the sidewalk by the testimony of Mr. Armbruster. He was a member of the executive board prior to and at the time of the accident. Did the plaintiff succeed in proving the notice ? It was sufficient if the defective condition of the-walk was actually brought to the knowledge of Armbruster for a sufficient length of time prior to the accident to have enabled the city authorities by reasonable dilligence to have remedied the defect in the walk. It must not necessarily have been a written or verbal notice. McNally v. City of Cohoes, 127 N. Y. 353 ; 39 St. Rep. 578. Armbruster testified that he was at the time a member of the board, and that he had passed over the temporary walk on two or three occasions prior to the accident; he had observed that the proprietor of the premises had somewhat obstructed the driveway in the street, and had deposited dirt, barrels, and other articles between the temporary sidewalk and the curbing, and he gave him notice to remove these obstructions ; that he did observe that there was a temporary walk over the excavation in the sidewalk, but that lie did not pay any particular attention to it, and did not notice or know that the planks ball not been spiked down ; that he did not see anything unusual about the walk, and had no knowledge, information, or intelligence as to its being out. of order. The trial court held that the evidence failed to establish the notice required by the charter. It was not sufficient for the plaintiff to show that Mr. Armbruster was negligent in not discovering the defects, but, under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Armbruster had actual knowledge of the defect. This, we think, the evidence failed to establish, and, that being a condition to the plaintiff’s right to recover, she was properly nonsuited. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit. All concur.