author: Pratt, J. Dykman, J.

text:
    James F. Mitchell, Resp’t, v. Niagara Fire Insurance Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Insurance—Misrepresentation .
    A. statement in a policy of insurance that a "building formerly used as a factory is a dwelling house, is not a misrepresentation where it is actually so used.
    Appeal from a judgment entered on a verdict iu favor of plaintiff, and from an order denying a motion for a new trial. - DeForest Bros., for'app’lt; Taylor & Gardner, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered in favoi;of plaintiff against defendant, upon a verdict directed by thfe court, for the sum of $1,020, at the Orange county circuit, in June, 1895, and from an order denying defendant’s motion for a new trial. The action was brought to recover upon a policy insuring plaintiff’s dwelling in Newburgh, issued by defendant in December, 1895, to plaintiff, for the sum of $1,000, payable to plaintiff’s assignor as mortgagee. Plaintiff’s assignment appears in the case. While the answer se.t up several defenses, most of which were abandoned on the trial, or no evidence offered to prove the. same. The policy being offered in evidence, service of proofs of loss being admitted, fire, value of property, and assignment to plaintiff being proved, plaintiff rested. The only testimony offered by defendant was that of its agent, Robinson, who issued the policy. He testified that it was stated to him, bn application for the policy, that the building was a dwelling. Nothing else was said. The uncontradicted proof shows it was a dwelling, having been formerly a factory. The rooms not lived in by the family were used for washing, drying clothes, putting in wood and coal, ' etc., so that the whole house was occupied. ■ Robinson also testified that a dwelling that has a" storeroom in it of the size of this building should be insured at the rate of $10 per thousand. No evidence was offered that the stories of a house make any difference as to rates, "or that any statement was made as to stories of dwelling in question. The rate charged was for a dwelling house. Defendant then rested. Both parties moved for the direction of a verdict, and the court directed a verdict for the plaintiff. The defendant claims upon the facts proved that there was concealment or misrepresentation by the agent of the insured which avoided-the policy, in which the risk is.described as a dwelling house. The proof shows it was a dwelling house, and used as such, and nothing else. It was, therefore, no misrepresentation to call it a dwelling house, and no concealment was practiced by not saying that every room in the house was not continually used as a living room all the time it was occupied by the assured. In fact it was all occupied within the meaning of the law. The attic was used to dry clothes, part was used as a laundry, and other parts to store furniture not in continual use= It is plain no fraud was practiced or intended by the insured, and no misrepresentation made. There seems to be no alternative to an affirmance of the judgment, as there' is no exception by defendant in the record. The defendant took no exception to the direction by the court to the jury to find a verdict for the plaintiff nor has any order been entered denying any motion for a new trial.

Judgment affirmed, with costs.

Dykman, J.

This is an appeal by-the defendant from a judgment and order denying a motion for a new trial upon the minutes of the court. The action was based upon a policy of fire insurance, and upon the trial at the circuit a verdict was directed in favor of 'the plaintiff against the defendant for $1,020. For a defense to the action the defendant set up misrepresentation and concealment, which was based upon the following facts : Prior to 1889 the building was used as a carpet factory, and insured as such at a premium of $15 a year, and in that year the policy was-renewed at the same rates. Thereafter the agent of the plaintiff returned the policy to the company, and stated that the building had been changed from a factory into a dwelling house, and that the factory rates no longer applied. From-that statement a new policy was issued under dwelling-house rates. The statement of the agent was-true. The building never was used as a factory subsequent to the issuance of the last policy, and it was occupied as a dwelling. There was no misrepresentation, and no concealment of any fáct. At the close of the testimony each' party moved for the direction of a verdict, and so it was assumed by both that' there was no question of fact for the jury, and there was none. The facts -are undisputed. While' principle and authority condemn a policy procured by false representation or fraudulent concealment, the rule has no application to this case, because there was no proof of eitner therein.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., concurs.


source: Caselaw Access Project

author: Dykman, J. Pratt, J.

license: Public Domain

text:
    Rachel E. Odell, Resp’t, v. Nyack Waterworks Company, App’lt.

      (Supreme Court, General Term, Second Department.

      Filed December 2, 1895.)
    1. Tbespass—Flooding- well.
    Though the owner has a legal right to maintain a reservoir upon its premises, it is bound to so use and guard the same that it will not become a, source of annoyance or damage to the adjacent owners. So held, in the case of the owner of a reservoir, who shut up the overflow pipe, thereby causing the water to overflow, and, by means of a subterranean channel, run into the well of another party.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from" an order denying a motion for a new trial, fnade on the minutes.

      Lexow & Wyre, for app’lt;

      A. S. Tompkins, for resp’t.
   Dykman, J.

This is an appeal by the defendant from a judgment, upon a an denying a motion for a new trial on the minutes of the court. The-facts in this case as found by the trial judge after the.rendition of the verdict of the jury at the circuit in favor of the plaintiff for $1,346 are as follows: The defendant is a domestic corpoartion. On the 31st day of October, 1894, the plaintiff was the lessee and in possession of certain real property in the village of Nyack, upon which there was a well of water, about thirty-two feet deep. The defendant, on the 31st day of October, 1894, was the owner of certain real property adjoining the premises of the plaintiff in the village of Nyack, upon which premises there was a large reservoir of water, and also a well of water, which well is located between the plaintiff’s well and the defendant’s said reservoir. On the 31st day of October, 1894 and some time prior thereto, there was a natural subterranean channel or passage extending from the plaintiff’s well, through which there had been accustomed to flow in a northwesterly direction a natural stream of water. On the 31st day of October, 1894, the defendant closed and stopped up * the overflow pipe on the north side of its reservoir, thereby preventing,the water from flowing out of the reservoir in the usual and ordinary manner, and filled said reservoir beyond its usual quantity and condition, and caused the water from the reservoir to overflow its bank, at the southwest corner thereof, and thereby caused the waters to overflow the well upon the defendant’s premises, and in that manner unlawfully and wrongfully forcing waters from said reservoir through said subterranean water course into and upon the plaintiff's premises in large quantities, and into the plaintiff’s said well, causing the wall and arch of the plaintiff’s well to loosen, cave in,, and break, injuring the plaintiff’s premises. The defendant, by its acts, caused water from its reservoir to flow in large quantities through the seams in the rock, and through the subterranean course in a southwesterly direction, and in an unnatural and unusual manner, and from its said reservior and well to and into the plaintiffs well, causing the injuries aforesaid, and in the manner and to the extent found by the jury as aforesaid. That a continuance of the defendant’s acts, or repetition thereof, would interfere with the plaintiff’s use and enjoyment of her said premises, and cause irreparable damages to her. As a conclusion of law the trial judge found that the acts of the defendant were wrongful and unlawful, and constituted a trespass. That the plaintiff was entitled to judgment against the defendant for the amount of the verdict of the jury, to wit, $1,346, and forever restraining and enjoining the defendant, its officers and servants, from causing or permitting the waters from its said reservoir to flow back or upon the plaintiff’s premises or into o.r against her said well, and from in any manner interfering with her use and enjoyment of her said premises, or any part thereof, together with the costs of the action and an allowance of five per cent, on the verdict. These findings, as well as the verdict of the jury, are well sustained by the evidence, and they must constitute the basis of our decision. They show the plaintiff in the lawful possession of a well of water supplied by subterranean sources, and her right to the same cannot be invaded with impunity. The case does not require the examination or determination of the rights of contiguous landowners in subterranean waters, for the wrong of the defendant consisted in destroying the well of water of the plaintiff, by overflowing it with water. The liabilities are imposed by the principles of law which require persons so to use their property as not necessarily to injure their neighbor. While the right of user of property is unlimited in point of duration, it is not in point of enjoyment; on the contrary, the right of user is limited by the rights of all other persons. The maxim, “ Sic viere tuo vtalienum nonlcedasholds a prominent place in the law of property. When the defendant had the legal right to maintain a reservoir upon its premises, it was' bound to so use and guard the same that it would not become a source of annoyance or damage to the plaintiff and others. The law of the case was correctly given to the jury by the trial judge, and the exceptions to the charge present no error. The same may be said respecting the findings of the trial judge subsequently to the rendition of the verdict.

The judgment and order denying the motion fora new trial should be affirmed, with costs.

Brown, P. J., concurs.

Pratt, J.

(concuring).—This This was an equity suit to enjoin the defendant from permitting certain waters from the reservoir owned by the defendant to overflow back upon or against the plaintiff’s premises, or into a well belonging to-the plaintiff, and from in any manner interfering with the plaintiff’s use and enjoyment of her premises, or any part thereof, and from continuing the stopping of the usual overflow from said reservoir in a northerly direction, and also for damages for injury caused by the overflow of the defendant’s reservoir upon the premises and into the well of the plaintiff. Certain questions of fact were submitted to a jury, and also the question of damages. The jnry found a verdict' for the plaintiff, and assessed the damages at the sum of $1,346. After the rendition of the verdict, the trial was continued- and finished before the justice who tried the cause, and findings of fact and conclusions of law were made by him, and a judgment entered thereon. A motion was made fora new trial upon the minutes upon all the grounds mentioned in section 999 of the Code of Civil Procedure, which motion was denied. We were not favored in this case with any argument or brief by the appellant, but, notwithstanding that, we', have examined the case,'and are satisfied that the findings of fact made by the trial judge are supported by the evidence, and that the conclusions^of law are justified by those findings. We. have also examined the exceptions in the case, and find no error sufficient to reverse the judgment. We think the case was decided upon its merits, and that the judgment must be affirmed.


author: Dykman, J.

text:
    People ex rel. Philip E. Miller, App’lt, v. Frederick W. Wurster, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Certiorari—Procedure.
    Where the return fails to meet all the facts contained in the writ of certiorari and the papers upon which it was granted, the hearing and decision, under section 2138 of the Code, are to be upon the return, and the writ and the papers upon which it was granted.
    2. Same.
    A statement, in the return of facts, not responsive to the petition and of which no proof was given, will not be considered.
    3. Municipal corporations—Removal op fireman.
    An involuntary absence of a fireman, necessitated by an injury or a sudden attack of sickness, is excusable and does not constitute neglect of duty on his part.

      Certiorari to review the proceeding of the commissioner of the fire department of the city of Brooklyn, in removing the relator • from membership of the fire department of said city.

      Edward F. O'Dwyer, for relator;

      Albert G. McDonald, for resp’t.
   Dykman, J.

Under section 2138 of the Code of Civil Procedure, the hearing and decision of this case are to be upon the return, and the writ and the papers upon which it is granted, because the return fails to meet all the facts contained in the writ and the papers upon which it is granted. The facts which appear from such papers are these : On the 9th day of December, 1890, the relator was appointed a fireman in the fire department in the city of Brooklyn, and was employed on the force for the extin.guishment of fires. . He continued to hold that office until the 8th day of January, 1895. On the 3d day of Jauuary, 1895, he was charged with intoxication on the evening of January 2,1895. He was also charged with absence without leave on December 30 And 31. 1894, and January 2 and 3, 1895. On the hearing, before the respondent, the relator admitted his absence from his company’s quarters at the times alleged, but he says in his petition, and the statement is recited in the. writ, that he stated to the respondent that his absences were caused by reason of his sickness and inability to perform duty during the time specified in the charges. The facts constituting the cause of such involuntary absences are fully set forth in the petition of the relator upon which the writ was obtained, and they are sudden and severe .sicknesses.

The respondent has added to his return the record of the relator as a member of the fire department from the time of bis appointment, in December, 1890, but it was not given in evidence upon the trial, and the relator has been offered no opportunity to explain it. It will not therefore be considered on this hearing, except as it has a tendency to show that matters other than the charges against the relator and the proceedings on his trial were permitted to influence the respondent in forming his judgment. It is alleged in the petition upon which the writ was granted that the relator was not intoxicated on the night of January 2, 1895, as charged, and that the several absences without leave were involuntary, and eaused solely by the sickness of the relator. The return is silent as to these allegations, and, on this hearing, they must be considered and taken as a correct and truthful statement of the facts. The nature of the complaint with which the relator was afflicted, and his several attempts to procure necessary medical aid from the surgeon in the department, to which he was entitled as a member, are fully set forth in the petition, and, if not true, it was within the power of the respondent to prove their falsity. An examination of the testimony shows that the relator was not guilty of the charge of intoxication, and that question will require no further consideration.

The return of the record of the relator suggests its possible use against him, and that was erroneous. No opportunity'was afforded him to explain or answer the record, which was made up without his knowledge, and its use against him was palpably un-' just. Under the statute, as it was amended by section 2 of chapter 371 of the Laws of 1889, absénce without leave is not an offense for which a member of the department employed on the force for extinguishing fires can be removed. They can only be removed after having been found guilty of misconduct or neglect of duty or having been adjudged incapable of performing their duties. Moreover, the'plea of guilty of being absent without leave, accompanied with an explanation of the cause which necessitated the same, was insufficient to justify the removal- of the relator. While a voluntary, intentional absence might be deemed a neglect of duty, and sufficient as a specification under such a general charge, an involuntary absence, necessitated by an injury or a sudden attack of sickness, is excusable, and merits no punishment.

These proceedings are criminal in their nature. The penalties are severe, and it would contravene the humanity of our laws to inflict punishment for the involuntary act mentioned. If the conviction of this relator is legal and valid, then a fireman who receives a severe injury in the performance of his duty, which incapacitates him physically, and confines him to his house, may be removed for such absence; bus the law will not tolerate such a result. The offenses must be voluntary and intentional. The conviction of the relator was illegal and unjust, and the proceedings should be reversed, and he should be reinstated in his position and pay, with $50 costs.


author: Mayham, P. J.

text:
    James W. Bender, Resp’t, v. John L. Blessing, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Limitations—Payment.
    Payments endorsed on a note, which are relied upon to prevent the bar of the statute of limitations, must be shown to have been made or authorized by the defendant.
    2. Same.
    When, in such case, the plaintiff has failed to establish against defendant a legal cause of action, no presumption can be indulged in as against him for not introducing affirmative evidence of his defense of the statute.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      George H. Stevens, for app’lt;

      Stanwix & Murray (Galen R. Hitt, of counsel), for resp’t.
   Mayham, P. J.

The only substantial difference that we have discovered between the evidence on this trial and that which was taken on the former trial is that on this trial it does not appear by whom the interest, which was indorsed upon the note was paid if paid at all, whereas on the former trial the evidence tended to show that the interest, payments of which were indorsed on the note, had been paid by Martin J. Blessing, one of the joint and several makers o£ the note.

When the case was 'before this court on a former appeal (82 Hun, 820; 64 St. Rep. 79), this court held that as the statute of limitations was pleaded by the defendant, John L. Blessing, and there was no evidence proving, or tending to prove, that any interest had been paid by him, or by any other person under his direction or authority, the note as to him was barred by the statute of limitations, and that judgment against him was accordingly reversed. On this trial, the note and the indorsements on the same were offered by the plaintiff in evidence, and received by the court, under the objection of the defendant that the indorsements were immaterial and improper, and not evidence against the defendant, John L. Blessing; that there was no evidence by whom the payments were made, and they are not themselves evidence against the defendant, John L. Blessing. The learned trial court held and decided on this trial, from the evidence offered, that the legal presumption is that either one or all of the makers of the note paid the interest, as it was their duty to do, at the end of each year, and held and charged that as the evidence stood, the proof shows that each one of the makers may have paid.

If this court was right in its determination on the former appeal, there is nothing in the case aS it now stands to change its determination made at that time. We see nothing, either in the law or the evidence, which calls upon us to change the conclusion reached by us on the former appeal, and the judgment must be reversed, for reasons stated in the opinion on that appeal, without reiterating an opinion here.

If the plaintiff, by his own proof, failed to make out a legal cause of action against the defendant, it was certainly not incumbent on the defendant to give proof of his affirmative defense. He could safely stand upon the plaintiff’s failure of proof, and no presumption can be indulged in as against him for hot introducing affirmative evidence of his defense when the plaintiff had failed to establish against him a legal cause of action.

It is insisted by the learned counsel for the appellant that this court should, on this hearing, render judgment absolute in favor of the defendant, with costs, — a power which, doubtless, rests with this court in a proper case. Price v. Price, 33 Hun, 432. But if, on another trial, the plaintiff can establish payment of interest by this defendant, either upon the defendant’s testimony or that of any other witness, we think he should have the privilege of doing so.

Judgment reversed, and a new trial ordered; costs to the* event.

All concur.


text:
    Agnes E. Coloney et al., App’lts, v. Edwin Farrow, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 3, 1895.)

    1. Appeal—Withdrawing case erom jury.
    Where there is, on a trial, a well-defined and sharp conflict of fact between the testimony on the part of the plaintiff and that on the part of the defendant, the case should not be taken from the jury.
    2. Water course—Riparian rights.
    The owners of a dam across a stream who, by raising the same, causes the water of the stream to overflow the lands of other owners, is liable for the damage caused.
    Appeal from a judgment entered on a verdict directed by the court in favor of defendant.

      T. F. Hamilton, for app’lts;

      Oscar Warner (J. W. Houghton, of counsel), for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiffs to recover damages for an alleged flooding of plaintiffs’ land, and to have the raising of a dam on defendants premises, by which the alleged flooding was produced, adjudged and declared a nuisance. The complaint alleged that the plaintiffs were the owners of certain lands, situated in Saratoga county, through and along which flowed a stream of water, known as “Anthony’s Killthat below the premises of the plaintiffs the defendant owned and occupied land on either side of said stream, and erected or maintained a dam across sajd stream, by and in consequence of which the water of the stream was obt-ructed in its natural flow, and set back upon the lands of the plaintiffs, and thereby flooded and drowned out ten acres of plaintiffs’ land to such an extent that it became and wholly valueless, and by reason of which the plaintiffs sustained large damages.

The answer admits plaintiffs’ title to their premises and the existence of the stream of water that the defendant owned land located below that of the plaintiffs on said stream, and the existence and maintenance of a dam across said stream, but denies that in the the year 1884, or at any other time, he raised the dam so as to flood or drown out the ten acres of plaintiffs’ land, or any portion of the same, or that he unlawfully, or otherwise, flooded the plaintiffs’ land. For a separate answer the defendant alleges that be purchased and became the owner in fee simple of the land and premises occupied by him on- both sides of Anthony’s Kill, December 30, 1881, and that, thirty years prior thereto, the dam in question had been built across said stream, and had been maintained during all that time at the height at which it was at the time of the alleged injury to the plaintiffs, and alleges and avers-that the said cause of action did not accrue within twenty years next before the commencement of the action.

The issues came on to be tried at the Saratoga October circuit, 1894, and at the opening of the case the defendant objected that the action was not one in which the plaintiffs had a right to trial by jury ; that the same was solely and purely an equitable action. The court overruled the objection, and the case was tried before the court and a jury. The main contention on the trial was as to whether the defendant in 1884, or at any time since that time, had raised the dam so as to flood the plaintiffs’ land or any portion of it. On this branch of the case the plaintiffs introduced the testimony of several witnesses, proving or tending to prove the raising of the darn by the defendant and the consequent set-tin back or damming of the water, so as to cause the same to overflow the surface of the plaintiffs’ land, and to percolate the soil of the sqme as to destroy its productive qualities, and render it untillable and of little or no value. In supjjort of that theory, the plaintiff Agnes E. Ooloney testified that nine acres oi, plaintiffs’ land had once been productive and under cultivation, but after raising the dam the land was useless. Water was upon the land ankle deep, and crops were flooded. She also testified to conversations with the defendant, informing him that raising the dam had flooded the plaintiffs’ land, and that defendant admitted the raising of the dam, and told her he was going to raise it still higher; that he wanted more power to run his knitting mill and the electric plant of Meehanicsville ; that he wanted to buy the right to raise the dam; that the .defendant also insisted' that he had a right to raise the dam, and should go on and raise it; also, that the dam was raised by the defendant fifteen inches," and that, in addition to this, defendant used two twelve-inch flush boards. It was also proved that defendant said to one Ooloney that he wanted to raise his dam eight inches, and wanted to get the right of plaintiffs to do so; that he needed the power; that he could buy an engine, but that the water power was cheaper. There was also proved, by Ooloney, that he heard defendant tell one Stiles that he had raised the dam, and that he had acquired the right of the Delaware & Hudson people to raise it. Thomas H. Laisdell testified that he had known the land for a number of years; had cultivated it, and purchased the nine acres at one time; there was no water there when he last saw the land ; since the alleged raising of the dam it was covered with water. Benjamin Freeman testified to his familiarity with the property before the alleged raising.of the dam, and after; that the land, before flooding, was worth $200 rental value per annum, and after the flooding was worthless. George M. Moore testified that-he had known the dam upon the premises for over twelve years ; that the dam had been raised during that time; thinks over two feet; knows the dam was raised fifteen inches on the 16th of June, 1893, by flush boards, and that he took them off against the defendant’s will, at the instance of the plaintiffs. Several other witnesses on the part of the plaintiffs testified, in substance, that the dam had been raised since the defendant’s occupancy of it, and to the damage occasioned to plaintiffs’ land by it being flooded. At the conclusion of the plaintiffs’ testimony, defendant moved, on various grounds, to dismiss 'the complaint, and the motion was denied by the court.

On the part of the defendant, Charles E. Hicks, a civil engineer, was sworn, who testified to taking the elevation of defendant’s dam,,and the level from it to the land of the plaintiffs, and said that the lowest point of Ooloney’s ground would be 77-100 of a foot higher than the. top of a flush board of nine and one-fourth inches in height; that the level of the top of the ‘flush board would run out at a point about 400 feet north of Farrow’s line in the ereok. He also testified that, when he made the survey in April, the water did not run over plaintiffs’ land. Daniel A. Baker, another witness sworn in behalf of the defendant, testified that he remembers the dam from forty-five to fifty years; that he repaired it in 1873, and built it at the height of the same timbers as were in the old dam, and did not build it any higher; that years ago &it was a log dam ; when he assisted in building it, he put sleepers in on plank, and some of the old dam was there yet, and that the uew dam was about the same in height as the old one; that he observed the dam from year to year from 1872 ; that there had always been flush boards used in dry times; that he put them on two feet high ; that the ' average height was about fifteen or sixteen inches; that he knew the piece of Coloney’s land claimed to have been injured; that there was not any improvement or cultivation on his land twelve or fifteen years ago. On the cross-examination he said he lived in a house on the thirteen acres; that he cultivated some of the thirteen acres, and what he did not cultivate he pastured ; that he had seen the creek come over the thirteen acres in times of high water ; that between 1870 and 1876 he had seen flush 'boards on the dam, nailed on with brackets. Gfeorge W. Ostrander, another witness for the defendant, remembers the dam- at least forty years; was away from there from 1862 to 1863 or 1864, except when he was in the army ; he has known the dam ever since ; thinks there was two-thirds of the old dam there ye't; the creek years ago upon the Coloney land was about as now; saw the land a few days ago, and noticed more water on it than he was in the habit of seeing years ago; the flush boards were on defendant's dam. John Baker, another witness sworn for defendant, remembers the dam since 1838; part of the dam that is there now was there when he was a boy; examined it recently, and did not observe anything of the present dam being higher or lower than the old dam. Several other witnesses, familiar with this dam 'for many years, were sworn on behalf of the defendant, and gave evidence similar to that to which we ha-ve been referred.

It will be observed, from reading this evidence, that there was, on the trial, a well-defined and sharp conflict of fact between the testimony on the part of the plaintiffs and that on the part of the defendant. There seems to have been abundant evidence on the part of the plaintiffs, standing alone, from which, the jury would have been clearly authorized to find iu favor of the plaintiffs, upon “the two important questions: (1) As to the raising of the dam ; (2) as to the injurious effect to plaintiffs’ land of the water set back by the dam. And that seemed to have been the view entertained by the learned judge at the conclusion of the plaintiffs’ testimony, when he refused the defendant’s motion to dismiss the complaint. It may also be addéd that, taking the evidence on the part of the defendant alone, the jury would have been clearly authorized to have found that there had been no interference with, or raising of the dam by, the defendant within the last twenty years, so as to cause the water to set back in the creek and overflow the plaintiffs’ land. Whether the plaintiffs’ theory, established by their evidence, or the defendant’s theory, established by his countervailing evidence, was correct, was clearly a disputed question of fact, which, ordinarily, under our system of jurisprudence, should be determined by a jury. It is true that, where there is such an overwhelming prepónderence of evidence on the part of the defendant as to leave no reasonable doubt of the correctness of his theory, if there had been but a scintalla on the part of the plaintiffs in support of their theory, it would .have been the duty of the court to take the case from the jury. Linkauf v. Lombard, 137 N. Y. 417 ; 51 St. Rep. 63; Hemmens v. Nelson, 138 N. Y. 517; 53 St. Rep. 94. But it can hardly be said, in this case, that the plaintiffs furnished but a scintalla of evidence in support of their theory, and the case therefore comes more nearly within the rule laid down by the court in Pratt v. Dwelling House M. F. Insurance Co., 130 N. Y. 206; 41 St. Rep. 303, where the court says :

“If, in any view of the evidence, a verdict might have been rendered for the plaintiff, or if there were questions of fact which might have been determined for the plaintiff, aud which, if determined in his favor, would have entitled him to recovsr, the case should not have been taken from the jury.” Citing Sheridan v. Railroad Co., 36 N. Y. 39; Coll v. Railroad Co., 49 id. 671; Train v. Insurance Co., 62 id. 598.

Applying that -rule to this case, it follows that if the jury had found, in accordance with plaintiff’a testimony, that defendant had raised the dam, and that by so raising it the water was forced back upon it, or percolated the soil of the plaintiffs, so as to produce injury to their lands, then the plaintiffs would have been entitled to a judgment for such injury, and for the other relief demanded in the complaint.

It is insisted by the learned counsel for the respondent, in his brief, that the rule of the common law has some application to this case, as laid down in Rice, Ev. p. 1120, from which he quotes as follows:

“ It is a maxim of the common law that the owner of the soil has absolute dominion over the same, indefinitely, above and below the surface, and that whatever damages to others he may occasion by his rightful command over his own soil is damnum absque injuria.”

But it is difficult to see how that maxim can be applied to this case, so long as the word “rightful” constitutes a part of the maxim. For it cannot be contended, with any support of law or reason, that a man owning land through which a stream runs may obstruct the natural flow of that stream, or divert it, to the injury of riparian owners, either above or below such owner on the line of the "stream; and the rule has been too long and too well settled to admit of a doubt that the riparian owner upon whose land water is set back by a dam constructed by a riparian owner further down upon the stream is without remedy. In Hammond v. Fuller, 1 Paige, 197, it was held, where a party, by erecting a dam, raises the stream of water above its natural level, so as materially to injure mills above on the same stream, a court of chancery will decree that the dam be lowered, and the party erecting the same pay all damage occasioned by raising water above its natural level. And in this cáse there appeared to be great conflict of evidence, and the court declined to pass upon that conflict without the intervention of a jury, and the case was submitted to a jury. In Stiles v. Hooker, 7 Cow. 268, it was held that:

“A grant is presumed from twenty years’ uninterrupted use of water at a certain height, and if for twenty years the defendants have raised their water but five feet, and afterwards raised it six feet by the same dam, and the additional foot injures the plaintiffs, they are entitled to damages.”

In Russell v. Scott, 9 Cow. 279, it was held that:

“ The erection of a milldam on one’s own land, and flowing a neighbor’s land for more than twenty years uninterruptedly, bars all right of action in the neighbor, but only for the darn as it stood. If it be raised,' and the flow increased, the action lies.”

We are inclined to think that it was also a question of. fact for the jury, under the evidence in this case, to determine whether or not there was a prescriptive right to flush boards on this dam. The evidence upon the subject does not show such a continuance and uninterrupted use of flush boards as would raise, by implication, a prescriptive right in law, unless it be found that that right was acquired by constant and uninterrupted use of flush boards. Whether it was or not, it seems to us, is a q uestion of fact for the jury.

It is insisted by the learned counsel for the appellants that the court erred in rejecting the testimony offered by witness Abel,. who owned land on this stream next above the land of the defendant. The defendant had proved the use of flush boards under former owners, Hicks and Stevenson. The plaintiffs called Abel to prove that, when Hicks and Stevenson used flush boards, they paid for the right. That evidence, we think, was competent to be submitted to the jury, as bearing upon the uninterrupted prescriptive right of the defendant to use flush boards on his dam, and it was error for the learned judge to exclude it.

At the conclusion of the trial, the plaintiff asked to go to the jury upon the disputed question of fact as to the prescriptive right to use flush boards on the dam, and as to the question whether the defendant had raised the dam to the plaintiff’s injury. This the court refused, and directed a verdict for the defendant. We think this was error, for which the judgment should be reversed.

Judgment reversed, and a new trial ordered, costs to abide the event.

All concur.


text:
    John Perry, Resp’t, v. John C. Rogers, App’lt.

      (Supreme Court, General Term, Second, Department,

      Filed December 2, 1895.)

    1. Master and servant—Safe place.
    It is the duty of the master to use reasonable care to provide a safe and proper place for the prosecution of his labor.
    2. Same. . •
    He is negligent if he fails to discover insecurities and dangers which could be determined by the exercise of reasonable care.
    3. Same—Right of presumption.
    The servant may assume that the master has performed his duty and used all reasonable diligence to make the place where he labors safe and secure.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      William A. Jones, Jr., for app’lt;

      Catlin & Nekarda (F. W. Catlin, of counsel), for resp’t.
   Dykman, J.

The municipal authorities of the city of New York were constructing a road called a “ speedway ” along the side of the Harlem river, and the defendant was the contractor who was doing the work. On the banks of the river were high and precipitous rocks, which extended nearly to the river’s brink, and it became .necessary to rend these rocks by the explosion of gunpowder or dynamite. That was done by commencing at the top of the cliff, and boring large holes in the rock, and throwing off a section of the face by exploding powder in the drill holes. That explosion would leave what was called a “ bench,” lower down, which would be covered with broken fragments of rocks. Such fragments were removed after each explosion to make a clean surface for new drill holes. The plaintiff was in the employ of the defendant upon this work as a common laborer, and on the 19th day of July, 1894, he was ordered to go, with two other laborers, upon one of the benches, which was about forty feet above the place where he was at work, and clear off the bench. While in the performance of that duty, a large rock fell upon him, and so crushed his foot that it became necessary to amputate the same above his ankle, aud this suit is for the recovery of the damages he has' sustained from that injury. The evidence of the plaintiff and witnesses was that the place from which the rock fell was about seven or eight feet above the bench where the plaintiff was working. While there was testimony on the part of the defendant tending to show that the rock slid upon the plaintiff while he was attempting to remove the same with his bar, both theories were submitted to the jury, as wc shall hereafter see. The case was tried at the circuit before a jury, and a verdict rendered in favor of the plaintiff for $5,000. The defendant has appealed from the judgment and from the' order denying the motion for a new trial on the minutes of the court.

A fair opportunity to avoid harm is sufficient to impose a person the peril of his conduct, if, when judged by common experience, he is blameful for his act. It may now be assumed that the stone which fell upon plaintiff had been detached and loosened by a blast two or three days prior to the injury. Ordinary knowledge and experience teach us that the inspection and examination of the rock would have detected the insecurity and danger of the place where the plaintiff was set at work. The evidence adduced by the plaintiff tended to show that there were the marks of a drill on the stone, and that the same broke off from a drill hole; that there was a hole drilled down by the stone; that half the hole was left on the stone, which was burned by the powder. The menacing position of the stone was, therefore, easy of discovery. Turning now, to the rules of law'applicable to persons who sustain the relation of master and servant, we find it to be the duty of the former to use reasonable care to provide adequate and suitable implements for the use of the latter, and a safe and proper place for the prosecution of his labor. He was bound to give the reasonable inspection that a man of ordinary prudence would give. He was bound to foresee whatever a prudent, intelligent man would have foreseen. “ A prudent man foreseeth evil, and hideth himself.” Negligence arises from imputed or presumed foresight. In fact, negligence may be said to be the want of foresight. The circumstances which make men liable for their acts or omissions must be determined by experience; that is, whether the circumstances under which an act is committed are sufficient to sustain a charge of negligence must be determined by the common experience of mankind. The care which the law demands from the master cannot be delegated to a servant, so as to exonerate the mastpr from responsibility to a servant who has sustained injury by reason of its nonperformance. Pantzar v. Mining Co., 99 N. Y. 372; Corcoran v. Holbrook, 59 id. 517. Very different are the duties which the law imposes upon the servant, while he accepts the risks and hazards of the service in which he voluntarily engages, and must contribute the exercise of his faculties. He may assume that the master has performed his duty and used all reasonable diligence to make the place where he labors safe and secure. He assumes only the risks which are ordinarily incident to'the employment, from causes which are open and obvious, or which are announced to him in advance. He does not assume the risk of the master’s negligence, and the master is negligent if he fails to discover insecurities and dangers which could be determined by the exercise of reasonable care.

The theory of the defendant was met by the charge of the trial judge in this way:

“ If this stone had been detached, so that it fell upon the bench, and if this plaintiff, in prying stones that were supporting it, became injured, he cannot recover, because it is an accident, then, which resulted from the nature of the employment itself. If the plaintiff, in removing stone from the bench, so conducts his work that the stone that supports another falls upon his foot and crushes it, that is his lookout; ,but if it falls six or eight feet, from the side of the hill above, and if a careful and prudent examination by the master would have revealed that danger, and he did not make the examination, or have it made, then that is another question. It is a question between the master and the servant as to whether the master did what he ought to have done for the protection of the servant. * * * Because the plaintiff owes vigilance, he owes the exercise of his faculties to, prevent the injury; and if an ordinarily prudent man should have seen and anticipated this injury, the plaintiff was bound to anticipate it, and even if you find that the defendant was guilty of negligence, if you find the plaintiff was guilty of negligence, the action is gone. No action will lie in a case where the plaintiff contributes in any degree to the injury resulting.”

The verdict of the jury made under that charge closes all the avenues of escape against'the defendant, and renders interference by the appellate court impossible. It follows, from the foregoing, that the motion to dismiss the complaint was properly denied, and if the exception to the charge is to be considered after the explanation of the judge, it presents no error.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

All concur.


author: Pratt, J.

text:
    Elizabeth G. Stanton, App’lt, v. New Rochelle Water Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Watercourses—Diversion.
    The storage and sale by a riparian owner of water from a running stream is a wrongful diversion from which a lower riparian owner may have redress.
    3. Same—Extent of right.
    The relative amount of watershed owned by adjoining riparian owners will not affect their individual rights to a proper use of the stream.
    3. Same.
    The lower riparian owner is not limited in his use of the water as he has been accustomed to use it, but has a right .to bring an action for the impairment of such prospective use as he might reasonably make of the water.
    Appeal from a judgment dismissing the complaint.

      Grove M. Harwood, for app’lt;

      Martin J. Keogh, for resp’t.
   Pratt, J.

This is an appeal from a judgment at a special term of this court entered in the office of the clerk of Westchester county on March 5, 1895. The action was commenced om August 22, 1894, and was brought for the purpose of enjoining and restraining the-defendant from obstructing the natural flow of a nonnavigable stream of fresh water, known as “Hutchinson Creek,” which runs in a southerly direction through portions of New Rochelle, Pelham, and Bastchester, and from diverting the water from the channel of the stream, except for such uses on defendant’s premises as are usual and proper for upper riparian owners. The plaintiff also asks judgment for such damages as she can prove were sustained by reason of such alleged obstruction and diversion. The plaintiff and defendant are riparian owners on said river, the defendant being the -upper riparian owner. The defendant owns over 14,000 feet on both sides of the stream, while the plaintiffs owns 1,000 feet. The plaintiff claims that, in consequence of the erection of these dams, she has been deprived of the use and enjoyment of the natural flow of water in the stream; and she seeks by this action to enjoin the defendant from further interfering with such use and enjoyment, and to recover damages for the loss occasioned thereby. Judgment was rendered for the defendant, dismissing the complaint upon the merits, with costs.

It seems to me plain, from the evidence in this action, that the judgment should have been the other way. The defendant is á waterworks company, organized under the laws of this state for the formation of waterworks companies, for the purpose of supplying water to the village of New Rochelle; and the purpose of these dams was to make the reservoir to hold water for sale to the customers of the defendant. The general rule of law is that the owner of land through which a stream of water runs has a legal right to the usual and natural flow of the water across his premises, of which he cannot be deprived without his consent or just compensation, subject, of course, to the right of the upper riparian owner to use water for his own domestic - purposes. The right to a stream of water is as sacred as the right to the soil over which it flows. It is a part of the freehold, of which no man can be disseised but by lawful judgment of his peers, or - by dpe process of law. Gardner v. Trustees, 2 Johns. Ch. 162; Scriver v. Smith, 100 N. Y. 471-480; City of Syracuse v. Stacey, 86 Hun, 441; 67 St. Rep. 719; Washb. Easem. 276; Ang. Water Courses, § 596. “Though the legislature has power to take private property for useful and necessary purposes, it is bound to provide a fair compensation to the individual whose property is taken; and, until such indemnity is afforded to the party, that power cannot be exercised legally.” Gardner v. Trustees, supra. It is not competent for the defendant .or the court to determine yrhat amount of water was needed by the plaintiff, for she was entitled to the whole of it, except what was used by the defendant for ordinary purposes. Undoubtedly, the defendant had the right to build dams upon his own lands, and to store water, but that does not carry the right to divert the water from its natural course. It appears from the evidence that 212,000,000 gallons were annually diverted and sold by the defendant. This evidence is not disputed in the case. That was quite a large proportion of all the water that ran is said stream. It is true that at some seasons of the year the water flowed over the dams so as to supply all that was needful to the plaintiff below; but the storage of the water, and its sale at other seasons of the year, made the stream nearly or quite dry on the defendant’s land. The case of Rubber Co. Rothery, 132 N. Y. 293-296; 44 St. Rep. 557, it seems to me, is decisive of this case. In that case the court went so far as to hold . that the title of the riparian proprietor to his water rights in a stream, and his right to redress for their invasion, is not conditional upon the beneficial user of them. “Where there is a diversion of the waters of a stream, which materially dimishes in natural flow oyer the land of the proprietor below, he may maintain an action, and is entitled to recover nominal damages, although he has . as yet made no use of the water, or water enough is left in the stream for the purposes of his business as then conducted." It was not competent for the court to determine what water was necessary for the plaintiff for the purposes of her business as it had been conducted. “But the plaintiff’s title to his water rights, and his right to redress for their invasion, were not conditional upon the beneficial user of them.” Corning v. Factory, 40 N. Y. 191.

We also think the amount of watershed of the two parties to this suit was not material evidence upon the issues of this case, and that its admission was error. The plaintiff was not limited in her use of the water by the fact that the defendant owned more watershed than she did. She was entitled to the beneficial use of all the water that flowed in the stream, except such as was reasonably used by the defendant. The rights of the parties did not at all depend upon the amount of watershed owned by them. The lower riparian owner had a right to all the water that ran in the stream, except such as the defendant had a right to reasonably use for its own purposes.

There are numerous exceptions in this case; but the law seems to be well settled. The plaintiff is not limited in her use of the water as she has been accustomed to use it, but she has a right to bring an action for the impairment of such prospective use she might reasonably make of the water. It is perfectly plain that here was a material diversion of a stream of water which would naturally run through the plaintiff’s premises. The plaintiff, having established the right and shown that it was invaded, was at least entitled to nominal damages, which would have carried costs.

Judgment reversed and new trial ordered, costs to abide the event.


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    Isaac Frieberg et al., App’lts, v. James Moffett, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Accord and satisfaction—WSat is.
    In case ot a dispute, a remittance “ in°full payment of an account,” and a subsequent direction by the debtor to either return or retain it in full payment of the account, constitutes, if retained, an accord and satisfaction.
    Appeal from a judgment entered on a verdict rendered by the court in favor of defendant.

      Horatio G. Glen, for app’lts ;

      Daniel Naylon, Jr., for resp’t.
   Mayham, P. J.

The case shows that on the 15th of October, 1892, the defendant purchased a bill of-liquors from the plaintiffs, amounting to $343.55, on which the defendant made certain payments; and on the 24th of February, 1893, the defendant purchased of the plaintiffs another bill of liquors, amounting to $356.76. Several payments appear to have been made by the defendant to the plaintiffs upon these bills, and a controversy arose between plaintiffs and defendant, in which the defendant insisted that he had paid to plaintiffs’ agents $100, which left a • balance on the bill of October, 1892, of $43.55, the plaintiffs insisting that the balance remaining on the bill was $143.55, and denying that the $100 had been paid to the agent. On the 11th of March, 1893, the plaintiffs sent to the defendant a letter, of which the following is a copy:

“Cincinnati, March 11th, 1893.
“ Mr. James Moffett, Cor. Central & Union, Schenectady, N. Y. — Dear Sir: Inclosed you will find a statement of your account. Please send us the amount of $43.55, which is due on the bill of October 15th, 1892. We hope to hear from you soon, and remain, “ Respectfully,
Isaac Freiberg & Bro.”

In answer to that communication — as would seem, very soon after its receipt — the defendant forwarded to the plaintiffs his check for $45.55, in which, by his evidence, he claims to have made a mistake of two dollars against himself. On the 9th of March, 1893, plaintiffs sent to defendant a letter, of which the following is a copy:

“ Cincinnati, May 9th, 1893.
“Mr. James Moffett, Central & Union, Schenectady, N. Y.— Dear Sir: We herewith send you a statement of your account, showing that you owe us a balance of $98.00 on the bill of October 15th, ’92 ; also the last bill of February 24th, 1893, amounting to $356.76. This balance of $98.00 of October 15th, should have been paid long ago, and we expect to hear from you by return mail, with check or money order inclosed; otherwise we shall draw on you for this amount.
“Yours, truly,' Isaac Freiberg & Bro.”

Subsequently, on the 24th of June, 1893, the plaintiffs sent to defendant'a letter,'of which the following is a copy :

“ Cincinnati, June 24th, 1893.
“Mr. James Moffett, Central & Union, Schenectady, N. Y.—Dear Sir: Inclosed you will please find statement of your account, showing that you owe us a balance of $454.76. We have taken the liberty to draw on you to-day at one day after sight for $454.76, and sent our draft to Schenectady bank for collection-We trust you will honor our draft promptly, and remain,
“Yours, truly, ' Isaac Freiberg & Bro.”

This draft was presented for payment to the defendant, but does not seem to have been honored, except by the following answer, sent to plaintiffs by defendant:

“ Schenectady, N. Y., June 29th, 1893.
“ To Isaac Freiberg & Bro.—Greats : I h'erewitli inclose a Hew York draft for $354.76, in full payment of my account to you up to date. Please acknowledge receipt of same.
“ Yours, very truly, James Moffett.” .

In reply to this the plaintiffs wrote defendant as follows:

“ Cincinnati, June 30th, 1893.
“ Mr. James Moffett, Schenectady, N. Y. — Dear Sir: Your favor of June 29th to hand, with inclosed draft for $354.76, which , we have placed to the credit of your account. We cannot square your account up to date as you request us in your letter, but we herewith inclose you statement of your account showing you still owe us a balance of $100.00. By examining this statement, you will find we are correct, and we kindly ask you to remit this amount by return mail, as the amount is overdue. Hoping to> hear from you soon, we remain,
“Yours, truly, Isaac Freiberg & Bro.”

To this letter the defendant replied as follows:

“Schenectady, July 6th, 1893.
“ Messrs. Isaac Freiberg & Bro. — Gents : I am in receipt of yours of the day of 30th ult. In reply I would say that I inclosed you a draft for $354.76 on condition that you receive it in full payment of your claim up to date, for it is all I owe you. I now direct you either to retain the draft in full payment of your claim, as stated in my letter containing the draft, or to immediately return to me either draft or its equivalent.
“Yours, James Moffett.”

To this letter the plaintiffs replied - July 8th, omitting to return the draft or its equivalent, and demanding payment for the balance claimed by them to be due.

There is considerable oral evidence in the case, but we think that the rights of the parties are substantially fixed upon the written correspondence between them. At the conclusion of the evidence the learned trial judge held that there was an accord and satisfaction of the ‘plaintiffs’ claim, and directed the jury to find a verdict for the defendant. We think he was right in that determination. Whatever the real right of the controversy between the plaintiffs and the defendant may be, it is manifest that there was a dispute between them, and that the defendant, in sending his draft on Hew York in full payment' of the balance, tendered his ultimatum to the plaintiffs, which the plaintiffs were at liberty to accept or reject; and that their acceptance of the amount offered in full payment of his claim was an accord, and the receipt and appropriation to their own use of the proceeds of the draft was a satisfaction, of the claim in controversy. Jaffray v. Davis, 124 N. Y. 164; 35 St. Rep. 106. In Fuller v. Kemp, 138 N. Y. 238; 52 St. Rep. 342, the court sums up a discussion on the question of accord and satisfaction in these words:

“ Where a tender or offer is made, the party to whom it is made has no alternative but to refuse it, or to accept it upon such conditions. If he takes it, his claim is canceled, and no protest, declaration, or denial of his, so long as the condition is insisted on, can vary the result. The principle is too well settled in this • state to require either argument or the citation of authorities to support it. To make out this defense, the proof must be clear, and unequivocal that the observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered, in case he did not assent to the condition on which it was offered. ”

It is manifest within these decisions that the acceptance of the draft upon the conditions upon which is was tendered, and the receipt of the money upon it, of the information contained" in the letter in which it was forwarded, and the subsequent information and warning of the defendant contained in a letter written immediately thereafter, were, in law, a satisfaction of the plaintiffs’ demand. The judgment must therefore be affirmed.

. Judgment affirmed, with costs.

All concur.


text:
    Patrick Diamond, Resp’t, v. City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Municipal corporations—Negligence.
    The fact that a hole in a cross walk, about two feet long, nine inches wide, and eight or nine inches deep, has existed for a year or more, shows negligence on the part of the city.
    2. Same—Contributory.
    In this class of cases, the plaintiff is bound to show by a preponderance of evidence not only the negligence of the defendant, but also his own freedom therefrom as a contribution to the result.
    Appeal from a judgment -entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Albert G. McDonald, for app’lt;

      Mirabeau D. Towns, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the minutes of the court. The action is based upon negligence, and the facts are these: On the 12th day of April, 1893, the plaintiff was riding on a truck along Flat-bush avenue, in the city of Brooklyn. At the corner of Deane street the driver of the truck slackened its speed to almost a standstill, to allow the plaintiff to alight. The plaintiff stepped down upon the ground,' on his right foot, at the same time holding on the. rung of the truck with his right hand. .He had reached the ground, and, turning around, he stepped into a hole in the cross walk with his left foot, causing him to fall down and break his leg. The hole was about two feet long, nine inches wide, and eight or nine inches deep, and had been there for a year or more. As a result of these injuries, the plaintiff was confined to the hospital and to his house, and was unable to engage in his work, for a period of about four months. The injury to his leg had the effect to shorten it an indi or more, making it weak, and rendering him unable to earn the same wages that he did before he received the injury. In this class of cases, the plaintiff is bound to show by a preponderance of evidence the negligence of the "defendant, and his own freedom therefrom as a contribution to the.result. The plaintiff sustained the burden which the law cast upon him in this case, and the charge of the trial judge submitted the question involved to the jury. The verdict in favor of the plaintiff under the charge establishes the fact in favor of the plaintiff, and the record presents no error of law.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

All concur.


text:
    James Weed, App’lt, v. New York Central & Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Negligence—Contbibtjtoby.
    A person, who knows that the gates at a railroad crossing are not operated during certain hours, cannot rely on the fact that the gates are open between those hours as an assurance of safety.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial, made on the minutes.

      A. H. F. Seeger, for app’lt;

      Ashbel Green, for resp’t.
   Pratt, J.

This was an action for damages for personal injuries caused by plaintiff being run into by a south-bound train of defendants on the West Shore railroad. The action was tried before a jury, and a verdict rendered for defendants. The case was submitted to the jury under a fair and unexceptional charge, and there is no exception in the case disclosing error sufficient to warrant a reversal of the judgment

The principal point made by the plaintiff to establish his case was that the gate was not manned and worked at the plac'e where the highway crossed the track where the plaintiff was injured. The answer to this proposition, as well as to the cases cited upon this point, is made by the fact that appeared upon the trial, that defendants were not accustomed to operate the gate between seven o’clock in the morning and 7:30' p. m., and this fact was known to the plaintiff, who was accustomed to cross the railroad at this point; therefore, those cases that hold a failure to shut the gate may be considered by the jury, as mentioned, as proof of negligence and contributory negligence, are not in point upon the case here. All these latter-named cases, which" are of a similar character, have been the result of accidents taking place while gates were in operation, and the injury was inflicted upon persons not familiar with the locality.

We think the verdict was fully supported by the evidence, and ought to stand.

Judgment affirmed, with costs.

All concur.


text:
    Charles O. Dwight, Resp’t, v. Frank A Cutting, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Evidence—Custom.
    A usage, which is reasonable, uniform and well-settled, and not in opposition to fixed rules of law, not in contradiction of express terms of the contract, and so far established and known to the parties that it may be supposed that the contract was made in reference thereto, is deemed a part of the contract, and may be resorted to by the court in fixing its interpretation.
    2. Same .
    In an action for the price of tan bark, which the parties agreed should be measured into cords when shipped, and no amount of shrinkage was spoken of between the parties, the word “cord” in the contract will mean a cord with the customary shrinkage deducted.
    3. Evidence—Memorandum.
    When it does not appear that a memorandum was made by the witness at the time of the transaction to which it relates, or that it was a copy of such memorandum, or that the plaintiff testified from his recollection, unaided by it, it is error to permit him, while testifying, to refer to such memorandum.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the mimutes.

      Cantwell & Cantwell, for app’lt;

      Gordon H. Main, for resp’t.
   Mayham, P. J.

The plaintiff, in his complaint, alleged that the defendant was indebted to him in the sum óf $200, being the balance on account of hemlock bark purchased by the defendant of the plaintiff, and for services performed by the plaintiff for de-' fendant in loading bark The answer was: (1) 'A general denial. (2) That by the contract for the purchase of the bark by the defendant the plaintiff agreed to pile it in a particular way, described in the complaint; and that, in consequence of the plaintiff’s failure to pile the bark as agreed it could not be measured on the ground, and plaintiff and defendant subsequently agreed that the bark should be loaded on cars, and there measured, and that on such measurement certain allowance, agreed between the parties, should be made for shrinkage; and that the defendant was to pay therefor at the rate of five dollars per cord; and that pursuant to the measurement agreed upon the defendant accepted the bark, and paid therefor the sum of $1,310.15, which was the full purchase price, and was received by the plaintiff in full for said bark. The answer further states that -about fourteen cords of damaged broken bark was left upon the plaintiff’s premises, and which the defendant was not, by his contract, bound to take.

The principal contention on this appeal is as to whether the custom or usage for the measurment of bark loaded upon railroad cars was established by the evidence so as to bind the plaintiff to accept payment according to the measurement, as based upon such alleged custom. There seems to be no dispute that if the custom was established so as to bind the plaintiff, the quantity of bark, as contended for by the defendant, and as paid for by him, was fixed according to the alleged custom, and the amount paid by the defendant upon that theory would be a full payment and satisfaction for the amount of bark received by the defendant. The defendant established by the testimony of several witnesses the existence of a custom among bark dealers for the measurement of bark when loaded upon cars, and that the bark in question was measured and paid for according to that custom.

One of the witnesses said: “That is the universal custom.” Another witness said: “I know what the universal custom in the bark trade is in making this shrinkage in that way. The custom is to shrink an inch on a foot in height.” Another witness said: “I know what the custom is among bark dealers as to allowance for shrinkage, where bark is piled and measured in the car. The custom is to shrink one inch to the foot in height upon the cars.” Another witness says: “There is a custom among bark dealers, to my knowledge, as to the shrinkage of bark, where it is measured on the cars. The general custom is that they shrink it. The general custom is to shrink it an inch to a foot in height.”

The existence of this custom does not seem to have been controverted by the plaintiff, nor does he deny or attempt to prove any want of knowledge of the existence of such custom, and there seems to be no dispute but that the parties agreed that the bark should be measured on the cars. Upon these facts it is quite clear in the absence of any proof to the contrary, that the measurement of the bark upon the cars according to known and recognized custom was a proper method of ascertaining the amount or quantity of bark delivered, and that payment in accordance with the ascertained quantity at the agreed price per cord would be full legal payment upon the contract. It is true that the existence of the usage and the knowledge of the parties to a contract of its existence are questions of fact proper for the consideration and determination of a jury. And in a case in which the evidence was doubtful, either as to the existence of the usage or as to the fact of the knowledge of its existence to either of the parties, the verdict of the jury against its existence would be conclusive upon the parties. Walls v Bailey, 49 N. Y. 464. But where the usage is reasonable, uniform, and well settled, and not in opposition to fixed rules of law, nor in contradiction of express terms of the contract, and is so far established and known to the parties that it may be supposed the contract was made in reference thereto, it is deemed a part of the contract, and may be resorted to by the court in fixing its interpretation. Newall v. Appleton, 114 N. Y. 140; 22 St. Rep. 680.

There is a conflict in the evidence in this case upon the question as to whether or not anything was said about shrinkage, as seems to be contemplated by the usage proved. The plaintiff, Dwight, denies that anything was said. The defendant and some of his witnesses testify that shrinkage was agreed upon. But, assuming that nothing was said, as claimed by Dw.ight, the case would then be one to which the law of custom or usage would clearly apply. A pile of bark eight feet long and four feet high by four feet wide would embrace the solid contents of a cord, but, as bark is not capable of being compressed, a uniform usage, fixing the amount of shrinkage, would be peculiarly applicable to the measurement of such a commodity; and where the usage existed, and no amount of shrinkage was spoken of between the parties, the word “ cord ” in the contract would mean a cord with the customary shrinkage deducted. In the case at bar, had the jury followed the instruction of the learned trial judge as indicated in his charge, it would not only have found the existence of the custom, but that the measurement of the bark in this case was in accordance with that custom. In that view of the case, from the undisputed evidence, it would seem to follow that the plaintiff had received full compensation for the bark actually delivered to and received by him, and that a verdict against the defendant for that bark would be unsupported by the evidence.

But there is another element in this case which we are called upon to consider. It is claimed by the plaintiff that the defendant purchased and agreed to take all the bark which plaintiff had at the railroad station, and that some of the plaintiff’s baijk at that point was left by the defendant, and was not included in the measurement of the bark measured in the cars. But, if that contention be correct, still the verdict would seem to be unsupported by the evidence'in amount. If we assume that the broken bark left at the railroad station was such quality of bark as was contemplated by the contract, the evidence clearly shows that the quantity so left was not more than fourteen cords. That quantity, at the agreed price of five dollars per cord, would at most amount to but seventy dollars, and a verdict for $151.29 would be clearly in excess of the value of the bark left at the railroad station, established by the proof. So that the verdict as found by the jury is not, in that view of the case, sustained by the proof.

Several exceptions were taken by the defendant to the rulings of the learned judge upon the trial, which we are also called upon to consider. While plaintiff was under examination as a witness in his own behalf, he was asked, in reference to the quantity of the bark:' “How much did he actually load and take away from that place?” and the witness, before answering, referred to a written memorandum. Defendant objected to the witness referring to the memorandum, unless it was one made by him. This objection was overruled, and the defendant excepted. On his cross-examination, this witness stated he did not measure the bark. “I think I kept a memorandum of it a little. I don’t know where the memorandum is now. I have not got it with me.” Under such circumstances it would seem to be clearly error to allow the witness to testify from the memorandum which he produced, and from which he appeared to testify. There was no evidence from this witness that the memorandum was one made by him at the time, or a copy of any such memorandum, nor can it be assumed, for the purpose of upholding this verdict, that the plaintiff testified from his recollection, unaided by the memorandum. We think, therefore, the exception to the ruling of the learned trial judge in"the admission of that evidence was well taken; and, as the testimony was on one of the material points in issue, it cannot be seen that it had no influence with the jury.

We think, also, the learned trial judge erred in refusing to charge as requested by the defendant at folio 151 of the case. That request was as follows:

“ That, independently of any specific agreement as to the amount of shrinkage, the fact that it was agreed that it should be measured in the car implied that such measurement should be according to the general custom of the bark trade.”

" The court refused to charge as requested, and the defendant duly excepted. If we are right in assuming that a custom was proved for the measurement of bark when loaded upon cars, and that custom was known to the parties, then it would seem_ to follow, as we have before intimated, that, in the absence of direct proof of an agreement as to the method of measurement, the agreement proved was a proper subject for the consideration of the jury, and the court should have charged as requested. His refusal to charge was error.

On the receipt of the verdict, the defendant moved upon the minutes to set it aside, which was refused by the court, and the defendant excepted. We think, upon the whole evidence of the case, and the exceptions taken, it was error for the learned judge to deny the motion .of the defendant to set aside the verdict For the reasons herein stated, we think the judgment should be reversed.

Judgment reversed, and a new trial granted; costs to abide the event.

Putnam, J., concurs in result; Herrick, J., concurs.


text:
    Thomas L. Hawkins, Resp’t, v. Alonzo E. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Appeal—Judgment by default.
    No appeal lies from a judgment taken by default.
    Appeal from a judgment taken by default in favor of plaintiff.

      Elliott J. Smith, for app’lt;

      George H. Furman, for resp’t.
   Pratt, J.

No principle is better settled than that no appeal lies from a judgment taken by default. Code, § 1294; Avery v. Woodin, 44 Hun, 269; 10 St. Rep. 160. The defendant’s remedy was to move to open his default. The recital that two justices of the sessions were present with the county judge, and took no part in the decision, does not invalidate the judgment. The proceeding was entitled in the county court, the county judge was present, and defendant has appealed from a judgment of the county court.

Judgment affirmed, with costs. All concur.


author: Brown, P. J.

text:
    August D. Porter, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Damages—Elevated railroads.
    Where only nominal damages are allowed for past operation of an elevated railroad for eight years, a finding of $1,500 for fee damages, is unreasonable.
    Appeal from a judgment, awarding .plaintiff six cents damages and costs, and perpetually enjoining defendants from maintaining and operating their railroad in front of plaintiff’s premises unless within thirty days they pay plaintiff the sum of $1,500 and costs.

      Henry L. Scheuerman, for app’lts;

      Francis R. Whitney, for resp’t.
   Brown, P. J.

The plaintiff is, and has been since 1854, the owner of a lot of land in the city of .Brooklyn, about thirty-four feet wide and 206 feet deep, extending from Sands street, on the north, to High street, on the south. On the Sands street side there is a two-story and attic frame dwelling house, standing some distance back from the street line; and on the High street side there are two two-story buildings, one a frame building, and the other built of brick, one used as a dwelling, and the other in part as a barber shop. The Brooklyn Elevated railroad is built and has been operated in Sands street since 1887. The Seaside & Brooklyn Bridge Elevated railroad is in process of construction in High street.

The court awarded for past damages the sum of six cents, and for damages to the fee the sum of $1,500. A similar award in the case of Sutro v. Met. E. Railway Co., 137 N. Y. 592; 50 St. Rep. 701, was characterized by the court of appeals as a “singular result;" and I am unable to see how there is any basis for the conclusion that there will be injury to the property in the future, as a result of the maintenance and operation of an elevated- road, if there has been no injury from the maintenance and operation of a road for the past eight years. The rule is now well settled that the easements of light, air and access taken or impaired by the elevated railroad structures -are of no value to the property owners separated from the land, and that the damages to the land owner are consequential merely. If the fact be as the learned trial judge has determined it, that there has been no diminution in the rental or useable value of the property as a result of the construction, maintenance or operation of the Brooklyn Elevated railroad during the, eight years it has been in operation, that fact is strong evidence that the fee value of the property has not been diminished in. the past, and there is no testimony in the case from which it can be inferred that there will be any material change in the future. The award of fee damages rests upon the testimony of a single witness, who gave his opinion that the property had depreciated in value from $50,000, in 1886, to $25,000 at the time of the trial, and that the annual rental value had fallen from $1,200 to $600. This witness, however, and the witness called by defendants, agreed that Sands street had, in the period since 1886, changed from a residential to a business street, and that the rental value of property in that street, which had been changed and altered for business purposes, had not fallen. The plaintiff’s expert also testified on cross-examination that property on Sands street had held its own since 1886, and that plaintiff’s property, for residence purposes, never was worth as much as $40,000. It is impossible to harmonize the different opinions expressed by the plaintiff’s witness; and in view of the fact that it was undisputed that there had been great depreciation of real estate values in many parts of the city within the past few years, and that the court determined that the rental value of the plaintiff’s property had not been depreciated by the operation and maintenance of the Brooklyn Elevated railroad, we are of the opinion that the evidence was wholly insufficient to sustain the award of fee damages. If the property had depreciated in value, there were many causes to which that depreciation could be attributed. The court substantially found that it was not to be attributed to the elevated railroad, and there was no evidence that the future would produce a result different from that already existing.

The judgment must be reversed, and a new trial ordered; costs to abide the event.

All concur.


author: Putnam, J.

text:
    Jeremiah Kiely et al., Resp’ts, v. Mary H. McMillan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Contract—Proof.
    In an action to recover for the construction of a hydrant and drain under a contract made by defendant’s husband, a motion for a nonsuit should be v granted where the "plaintiffs failed to show that the husband was authorized to make the contract, or that the work was actually done under it, or that defendant owned the premises on which the hydrant and drain were placed.
    Appeal from a judgment, in favor of plaintiffs.

      J. W. Ecker, for app’lt;

      George T. Kelly, for resp’ts.
   Putnam, J.

The testimony offered by the plaintiffs before the justice was clearly insufficient to sustain the judgment. It was not shown that defendant was the owner of the premises on which the plaintiffs made the drain and placed the hydrant for which they sought to recover in the action. Nor did it appear that defendant’s husband was authorized by her to enter into the contract with plaintiffs under which they claimed. It was not shown whether the account set out in the complaint was charged or the bill thereof made out to defendant or her husband, and the receipts read in evidence failed to show the liability of defendant, as one of them acknowledged the payment of $50 by defendant’s husband on account, and the other‘$12 by defendant on ac=. count. Again, the plaintiffs neglected to prove that they had laid the new drain and made the repairs entitling them to payment of $82.50 under their contract with defendant’s husband. We think an opinion in the case is unnecessary. In the absence of testimony to sustain plaintiff’s alleged cause of action, defendant's motion for a nonsuit should have been granted, and hence the judgment of the county court should be reversed, with costs of this appeal, and the judgment of the justice’s court should also be reversed, with posts of the court below.

All concur.


author: Hardin, P. J.

text:
    Elias Warn, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Master and servant—Rules. p
    A corporation, in making rules for the government of its employes, is. bound to use ordinary care and to anticipate and guard against suck accidents and casualties as may be reasonably foreseen by its managers exercising such ordinary care.
    2. Same—Risk.
    The rule that a servant takes the risk of the business is subject to the qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of co-employes ; and the negligence of one servant does not excuse the master from liability to a co-servant for an injury which would not have happened had the master performed his duty.
    3. Same—Question of fact.
    Under the facts and circumstances of this case, it was held not to be error to submit to the jury the question whether defendant was guilty of negligence in failing to promulgate and enforce a rule, in the event the jury found such á rule applicable to the train where the injuries occurred, and whether defendant failed in its performance of the duty it owed to provide for its inspectors such appliances, and a system of transacting its business regulated by a rule that would render their work reasonably safe.
    Appeal from a judgment in favor of plaintiffs.

      Hiscock, Doheny & Hiscock, for app’lt;

      Jenney & Marshall, for
    resp’t.
   Hardin, P. J.

The respondent, was in the employ of the defendant as an inspector of its cars at the Syracuse depot on the 29th of May, 1890, when he received injuries by the sudden movement of the cars, without any warning known to him of an intention to move the cars under which he'was engaged in inspecting. He seems to have been an inspector for many years, and his duties- were to inspect the cars that came into the depot. His habit was to commence at the rear end, sound the wheels if they were cast iron, and, if they were paper wheels and steel tires, he looked them over, and looked at the brakes and brake rods, brake beams, shoes, and at the air hose. This work was performed by going under the cars and in between the tracks. As the train approached the depot, the depot master informed the plaintiff that an excursion train was coming from the east, going through to Buffalo, and, when the train was pulling in, the depot master called out: “Hurry up, boys! Look over the train, so we can get it out before Ho. 10 comes in.” The plaintiff, as well as" his associates, commenced work at the rear end, and, when between the cars, he coupled the hose, and fixed the handles, and coupled the safety chains, as he went along, and while thus engaged in the performance of his work, he rose up to back out, when he “ got caught.” He received no notice or warning that the train was to be put in motion. The plaintiff offered in evidence a rule known as Ho. 36 from the printed rules of the defendant, which was "in the following language:

“ The blue flag by day, and a blue light by night, placed on the end of • a car, denote that car inspectors are at work under or about the car or train. The car or train thus protected must not be, coupled to or moved until the blue signal is removed by the car inspectors. When a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it, so that the blue signal will be obscured, without first notifying the car inspector, that he may protect himself.”

It appeared by the evidence that “the rules of the company are bound in pamphlet form, and divided under headings, and are classified; and rule 36, introduced in evidence, with several others, is under the head of ‘ Train Signals.’ ”

At the close of the plaintiff’s evidence, the defendant moved for a nonsuit, upon several grounds, which was denied, and an exception taken. Evidence was given during the trial that there had been a practice of several years’ standing to omit the observance of the rule when inspecting trains at-the Syracuse depot. Controversy was made upon the evidence as to whether the rule applied to passenger trains. We think the evidence warranted the court in submitting to the jury, “as a question of fact, whether the rule did apply to passenger trains as they arrived in the station in Syracuse or not, in view of all the circumstances.” After announcing the language we have just quoted, the judge observed: « .

“ Taking into account as one of those circumstances, the fact that no attempt was ever made, since that rule was devised, to enforce it. If you find, gentlemen, that that rule was made for the purpose of applying to railroad trains that came into the depot, and you also find that it was not promulgated, and that it was not enforced, then, gentlemen, those are important considerations for you to have in mind in deciding whether the defendant used reasonable care or not for the protection of its employees, in the dangerous position to which it had assigned them to duty.”

The judge properly instructed the jury that if they found the rule did not apply to defendant’s station and passenger trains at the station, and that it was not promulgated and not enforced, they might inquire whether the defendant “ provided in place of that rule some other reasonable protection adequate to the situation.” And he followed the instruction by an observance that the law required reasonable diligence in the premises, and what is reasonable diligence is a question for the jury, under the circumstances of this case.

This case was before us on a former appeal, and our decision •appears in 80 Hun, 71; 61 St. Rep. 585, where we held, viz.:

“ The, law imposes upon a railroad company the duty to its employees of diligence'and care, not only in furnishing propér and reasonably safe appliances and machinery, and skillful and careful employees, but also of making and promulgating rules which, if faithfully observed, will give reasonable protection to the employees ; and it Is also required to exercise such a supervision ■over its servants, and the prosecution of its business as to justify the belief that the business is being conducted in pursuance of such rules. A corporation, in making rules for the government ■of its employees, is bound to use ordinary care, and to anticipate and guard against such accidents and casualties as may be reasonably forseen by its managers exercising such ordinary care. The rule that a servant takes the risk of the business is subject to the •qualification that the master must exercise reasonable care to guard the servant, while engaged in his duties, from unnecessary hazards, including hazards from the negligence of coemployees; and the negligence of one servant does not excuse the master from liability to a coservant for an injury which would not have, happened had the master performed his duty.”

We have made a careful inspection of the evidence produced •on the trial now before us, and are of the opinion that the trial judge followed the rule of la$ laid down when we disposed of the former appeal in this ease, and that" he committed no error in submitting to the jury, as a matter of fact, to determine whether the •defendant was guilty of negligence in failing to promulgate and enforce the law whieh it had adopted, requiring the use of blue flags and blue lamps upon the cars under which inspectors were at work, .in the event the jury found the rule was applicable to the train where the injuries occurred, and whether the defendant had failed in its performance of the duty which it owed to provide for its inspectors such appliances, and a system of transacting its business, regulated by a rule that would render their work reasonably safe. Alel v. D. & H. Canal Co., 103 N. Y. 581; 4 St. Rep. 29; s. c., on subsequent appeal, 128 N.Y. 662; 40 St. Rep. 626; Whittaker v. D. & H. Canal Co., 126 N.Y. 544; 38 St. Rep. 523.

2. We are of the opinion that the trial judge properly submitted the question as to the plaintiff’s contributory negligence to the jury. Bearing upon that question was the evidence of Swan-ton, to the effect that he had directed the men to get out from under the cars; and in connection with that eyidence was the testimony that the plaintiff did not hear the direction when it was given, as he was engaged in work which absorbed his attention, ■and that fact, together with his testimony as to what transpired at the time be received his injuries, presented considerations properly left to the jury to determine whether he was guilty of negligence which contributed'to the injuries which he received.

The learned counsel for the appellant calls our attention to N. Y. C. & H. R. Railroad Co., 136 N. Y. 77; 48 St. Rep. 843. We tliinlr that case is distinguishable from the one in hand. In the course of the opinion delivered in that case, Andrews, J., said: “The evidence did not disclose any omission of duty by the defendant; ” and he added: “ Nor is it claimed that proper regulations had not been established defining the duties of employees, and for the management for the business of the yard.” And in in many other respects the case differs from the one before us.

We have looked at the exceptions taken to the charge as delivered, and to the refusals to charge as requested, and are of the opinion .that they do not require us to interfere with the verdict. The trial judge seems to have carefully regulated the course of the trial by the doctrine laid down by us upon the former appeal. Under such circumstances, we are of the opinion that it is our •duty to adhere to the decision made when the case was considered when the nonsuit was brought in review.

Judgment affirmed, with costs.

All concur.


text:
    Matilda G. Johnson, Resp’t, v. William H. Cochrane et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Receivers—Preservation or property pendente lite.
    In an action to determine the validity of the probate of a will, brought under section 2'i53a of the Code, the court cannot appoint a receiver to preserve the property pendente lite, as provided by section 713 of the Code.
    Appeal from an order appointing a receiver of the property of the testator pending the appeal from the judgment.

      Hugo Hirsh, for app’lts;

      M. L. Towns, for resp’t.
   Brown, P. J.

This action was brought under chapter 591, Laws 1892, known as section 2653a of the Code of Civil Procedure. Judgment was entered in favor of the plaintiff in the clerk’s office of Kings county on May 21, 1894. The purpose of the action was to determine the validity of the last will and testament of Joseph H. Hamilton. The statute provides that “ the issue of the pleadings in such actions shall be confined to the question whether the writing produced is or is not the last will * * * •of the testator.” The judgment entered followed the language of the statute, and decided that the writing produced and admitted to probate by the surrogate was not the last will and testament of said Joseph H. Hamilton, and adjudged said probate and proceedings had thereon to be valid, null, and void.

The order appealed from cannot be sustained. Section 713 of the Code of Civil Procedure authorizes the appointment of a receiver after final judgment to preserve the property which is the subject of the áction, during the pendency of an appeal. But the property of which the receiver was appointed, and which is described in the order as “ No. 975 Bergen Street,” was not the subject of the action. The subject of the.action was the validity of the will of Joseph H. Hamilton; and, while the judgment is conclusive as to the title of the real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the teBator died seised; and the plaintiff could not, under any process that could be issued to enforce the judgment, obtain possession of the real estate in question. The effect of the judgment upon the rights of the parties is to leave them in the same situation they would have occupied if the testator had died intestate. The title to the property passes to the heirs-at law, and possession must be recovered in the proper form of action for the recovery of the possession of real estate. Neither can the land be sold under the judgment in this action, and the proceeds distributed. The statute does not authorize such a judgment, and none has been given.

A court of equity undoubtedly possesses the power, independent of statute, to appoint a receiver to preserve property pendente lite;but such power can be exercised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property. • Probably, all cases that could arise where an appoitment of a receiver by a court of equity would be proper are now included in the provisions of the Code. This is not a proper case for such an appointment, and. the order must be reversed, with $10 costs and disbursements.

All concur. •