text:
    The People ex rel. Joseph E. McNutt, Resp’t, v. Charles H. Mills et al., as Commissioners, etc., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1895.)

    Excise—Licenses—Discretion. -
    Commissioners of excise have power to refuse a license upon the ground that the person seeking it is not of a good moral character or that the place kept by him is frequented by lewd women or used as a resort for immoral purposes, aud a refusal to grant a license upon such ground is not arbitrary, or an abuse of the discretion vested in him.
    Appeal from an order directing the granting of a license.

      Richard O. Bassett, for app’lts;

      Mark Cohn, for resp’t.
   Per Curiam.

The relator, on the 13th of May, 1895, made application to the defendants, as excise commissioners of the city of Albany, for an hotel license for the premises No. 667 Broadway, in the city of Albany, he having occupied and had an hotel license for the same during the previous year. The petition of the relator for such license appears to have been in proper form, and accompanied with a bond, and a deposit of the prescribed license fee. On the 15th of May, the defendants, without giving any hearing of the relator, denied his application for a license, on the grounds — First, that the relator was not a person of good moral character; and second, that considering the rights and interests of the property owners and the residents in the neighborhood, and the existing licensed places in the vicinity, they were satisfied that there was no immediate public necessity to be served in granting such license. That thereafter the relator requested a rehearing upon his application, and upon such rehearing witnesses were sworn, and a petition signed by a number of citizens was presented to the board, and after such hearing the defendants, as such board of excise commissioners, passed the following resolution:

“Resolved, that the application of Joseph E. McNutt for an hotel license at the premises 667 Broadway be, and the same hereby is, rejected and a license refused, for the reason that, considering the rights and interest of the property, owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sought, the commissioners of excise are satisfied that there is no immediate public necessity or convenience to be served in granting such application at this time.”

If, in determining this appeal, we were confided to this resolution, as containing the sole reasons for the defendant’s action, we would feel constrained to uphold the decision appealed from, and .adjudge the action of the commissioners as arbitrary, and an abuse of the discretion confided in them; for it appears, in the papers accompanying their return, and in the return itself, that after refusing to grant the relator an hotel license because of the number of licensed places within the territory specified in the return, they subsequently granted a number of saloon licenses to others, and renewed existing licenses within such territory, and granted leave for the transfer of licenses from places without such territory to places within. But the return of the defendants to the writ of certiorari, herein issued asserts that in the judgment of each of the defendants—

“ The Commercial Hotel, the premises for which relator seeks a license, is and has been kept by the relator in such a manner as warrants this board in holding, in reference to this, application, that the relator is not a person of good moral character; * * * that this hotel for which relator seeks a license was very carelessly run, and people were permitted to frequent it who ought not to do so, and that it was run as place for lewd women to visit for illicit' .sexual intercourse.”

There was evidence from which the commissioners might reach these conclusions, taken upon the hearing before them, and we do not feel that the conclusions arrived at by them were wholly unwarranted by the evidence. Under the discretion that is vested in the commissioners of excise, as to whom and what places they will license, we think that they have power to refuse a license upon the grounds that the person seeking it is not of good moral character, or that the place kept by him is frequented by lewd women, or used as a resort for immoral purposes, and that a refusal to grant a license upon such grounds is not arbitrary, or an abuse of the discretion vested in them.

For these reasons, we think that the order of the county court should be reversed, and the decision of the commissioners affirmed, with $50 costs and disbursements.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Ellis R. Williams, App’lt, v. Delaware, Lackawanna and Western Railroad Company, Resp’t

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    2. Witness—Cbedibility—Former testimony. ,
    Where, upon a retrial, the evidence of the plaintiff’s witnesses is essentially changed for the apparent purpose of avoiding a former decision, the court may take as the fact the evidence given by the witnesses on the-former trial.

      3. Appeal—Evidence—Former trial.
    The judgment will not be disturbed upon the ground that the court erred in not permitting the plaintiff to read in evidence the testimony of witnesses sworn upon a former trial, to the effect that three brakemen were not a sufficient number to properly manage the train, where such omission was not the proximate cause of the plaintiff's injury and did not contribute to produce it.
    Appeal from a judgment of nonsuit.

      W. T. Dunmore, for app’lt;

      W. & N. F. Kernan, for resp’t.
   Per Curiam.

This action was to recover for personal injuries ■sustained by the plaintiff. It was based upon the alleged negligence of the defendant in mainfaining a low bridge over its track .■at Norwich, N. Y., without notice to the plaintiff of its condition or other protection against injury therefrom. The plaintiff at the time of bis injury was a brakeman in the employ of the defendant. The accident occurred July 8, 1882. This action was commenced December 30, 1882. It was first tried in February, 1884, when a verdict was rendered for the plaintiff. The defendant thereupon moved for a new trial, which was denied. It then appealed from the judgment and order to the general term. The appeal was twice argued, and in January, 1886, a decision was handed down reversing the judgment and granting a new trial. The case was .again tried at the Oneida circuit in May, 1886, and the plaintiff ■again recovered a judgment. From that judgment, and from an order denying the defendant’s motion for a new trial, the defendant appealed to this general term; and in January, 1887, a decision was handed down affirming the judgment and order, with costs. From the judgment and order of affirmance the defendant appealed to the court of appeals, where the case was argued before^ the second division of that court. In December, 1889, a decision was rendered reversing the judgment and granting a new trial, with ■costs to abide the event. The case was again tried at the Oneida circuit in May, 1890, and at the close of the evidence the plaintiff was nonsuited. From this history of the case it will be seen that it has become somewhat familiar to this court. This is the third time it has been before us. On the first appeal, this court held that the question whether the defendant was negligent in maintaining a bridge at the height of that in question, without notice to its employes or otherwise protecting them against injury from it, and whether the plaintiff was guilty of contributory negligence, were questions of fact, and properly submitted to the jury. The judgment was, however, reversed upon the ground that the trial court erred in submitting the case to the jury on the theory that the defendant was negligent in not furnishing four brakemen, instead of three, as there was no evidence that the plaintiff’s injury was the natural or probable result of that omission, or that the .accident would not have occurred without them; or, in othei; words, because the evidence failed to show that such omission was the proximate cause of the plaintiff’s injurjL After a retrial of "the case, and upon the second appeal, the court followed its decision upon the former appeal, and affirmed the judgment and order •denting a motion for a new trial. On the appeal to the court of appeals the judgment was reversed, that court holding that as the. accident occurred in the daytime, as the" bridge was in plain sight, and as the plaintiff knew the train was about to pass under it, and turned his back to it, and passed to the rear of the train when he-was struck, a refusal to nonsuit was error, and that, if the plaintiff had exercised ordinary care and observation, he must have known that the bridge was not of sufficient height to permit a person to pass under it standing on the top of the car. It was, in effect,, further held that the rule the plaintiff assumed the usual risks and perils of the service, and of the open, visible structures known to him, or which he must have known had he exercised ordinary care and observation, was applicable, and he was guilty of such contributory negligence as to bar a recovery in-the action.

It is contended by the respondent that this decision is controling, and that the action of the trial court in nonsuiting the plaintiff should be sustained. This contention must- be upheld, unless the evidence upon the last trial is essentially different from that given upon the former one. We have examined the evidence, contained in the record before us, and also that contained in the appeal book upon which the former appeal was decided. While 'it must be admitted that the evidence of the plaintiff is somewhat different from that given by him upon the former trial, yet most, of the material facts relied upon by the conrt on the former appeal as a basis for reversing the judgment were established upon the-last trial, and most of them were undisputed. Under these circumstances, we áre reluctant to disturb the decision of the trial court, as it is manifest that it sought to follow the rule established by the court of appeals in this case, as especially in view of the-apparent disingennousness of the plaintiff in giving his testimony upon' the last trial, and his obvious effort to so change his evidence as to avoid the former decision in this case. In the case of. Hunter v. Cooperstown, etc. R. R. Co., 126 N Y. 18; 36 St. Rep. 367, where upon a retrial, the evidence of the plaintiff’s witnesses-was essentially changed for the apparent purpose of avoiding a former decision, the'court intimated that, in view of the doubt, resting upon the character and correctness of the evidence as thus-changed, it might take as the fact the evidence given by the witnesses on the former trial. In that case the judgment was again reversed, although the general term was of the opinion that under' the evidence, as changed, it was not within the former decision, and was sufficient to present a question of fact-for the ]ury. While-the question of credibility of the plaintiff’s evidence was doubtless a question for the jury, still, under the circumstances, and in view of the former decision of -the court of appeals in this case, we are not disposed to interfere with the judgment appealed from, or to-follow or distinguish the other decisions of that court which the appellant contends are not in harmony with its decision in this case. We are of the opinion that that decision was broad enough to cover the decision of the trial court, and that, if it is to be-modified or overruled, it should be by that court, and not by this.

Nor do we think that we should disturb the judgment upon the-ground that the court erred in not permitting the plaintiff to read in evidence the testimony of witnesses sworn upon a former trial, to the effect that three brakeman were not a sufficient number to properly manage the train. Upon a former appeal, where all this evidence was before us, this court held that it was insufficient to justify the trial court in submitting to the jury the question of the defendant’s negligence, based upon an omission to furnish four bralcemen, instead of three, as such omission was not the proximate cause of the plaintiff’s injury, and did not contribute to produce it. 39 Hun, 430.

Judgement affirmed with costs.


author: Mayham, P. J.

text:
    Catharine Roach, as Administratrix, etc., Resp’t, v. City of Ogdensburg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Negligence—Burden oe prooe.
    The burden of satisfying the jury of the existence of negligence on the part of the defendant rests with the plaintiff.
    3. Same.
    If there is any evidence of negligence, it is equally the duty of the court to submit the question to the jury for their determination.
    Appeal from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Louis Hasbrouck, for app’lt;

      Malby & Lucey (John M. Kellogg, of counsel), for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiff against the defendant to recover for the alleged negligence of the defendant in the maintenance of a public street, in allowing it to be so far out of repair as to cause plaintiff’s intestate, while driving on such street, to be thrown from his wagon, and so injured as to cause his death. The action is prosecuted by the mother of the intestate, as administratrix of his estate. The case discloses that intestate was eighteen years of age and engaged in driving a team drawing loads in the city of Ogdensburg, and, while passing over one of its principal streets, was thrown from his wagon upon the concrete roadbed, the wagon passing over some portion of his body, and so injured him that he soon thereafter died from such injury.

The principal contention on the part of the appellant is that there. was a failure on the part of the plaintiff to establish, by proof, any negligence of the defendant which would justify a recovery against the city for the injury complained of. On the part of the plaintiff, it was shown that, at about the place where this injury occurred, Ford street was intersected by the track of a street railroad ; that across said street, and also across the track of the railroad, a cross walk had been constructed by the defendant, raised several inches above the even grade of the street, and so graded on either side as to make passage over it easy; and that through said cross walk the railroad track had a depression of two or three inches; and that on one side of this cross walk there had been an excavation, or rut, formed by the wheels of vehicles passing over it, which made a depression below the surface of the concrete of from five to seven inchies; and that into this depression the wheels of intestate’s wagon fell, which so jostled the wagon as to throw intestate from his seat, upon the-roadbed. Evidence was offered by the plaintiff tending to prove that this depression in the surface of the street had been there, at. least, from the 22d of April, until the 8th of the succeeding May, when the injury occurred, and that its existence was known to the-street commissioner at the time of cleaning the street on the 22cL of April; and no steps are shown to have been taken on the part of the defendant, or any of its agents, to repair the same; and there is some evidence tending to show that during that interval other persons driving on the street had driven into this depression, and a hack driver was thrown off his hack by reason of driving into» the same. On the part of the defendant it was contended that this depression was not greater than many others in the city; and that, in consequence of the large amount of public streets to be cared for by the city authorities, the street was in a reasonably good state of repair; and that the defendant could not be held responsible for injuries growing out of the condition óf the street shown to exist at this point.

These contested questions of fact were properly, we think, submitted to the jury by the trial judge. Whether the street at .this-point was in a reasonably safe condition, and, if unsafe, whether the city authorities had notice of its condition, or, by reason of its-long continuance, were chargeable with notice, was a question properly submitted to the jury, and their verdict upon those questions cannot be disturbed on appeal. It is true, as contended by the learned counsel "for the defendant, that the burden of satisfying; the jury of the existence of negligence on the part of the defendant rests with the plaintiff; and while, as claimed by the pi an tiffr in every case there is always a preliminary question for the court,, as to whether there is any evidence upon which the jury can properly find a verdict for the party producing it, and upon which the burden of proof is imposed, yet, if there be any evidence of negligence, it is equally the duty of the court to submit the question to the jury for their determination. This has long been the well-established rule, and we do not think it has been disturbed or overruled by the case of Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112. In that case the court had under consideration the question of negligence as applied to a country road in a sparsely-settled community, on which there was "but . a small amount of public travel. In the case at bar the question arises on the principal thoroughfare of a large and populous city; and in the recent case of Wood v. Town of Gilboa, (N. Y. App.; not officially reported), the court seemed to have recognized a clear distinction between the streets of a populous city or village and a country road, in determining the question of negligence of a town or city.

We think the question of negligence in this case was properly-submitted to the jury as a question of fact, and we see no errors in the rulings of the learned trial j udge which call for a reversal of the judgment entered upon the verdict in this case.

Judgment must be affirmed, with costs.

All concur.


author: Herrick, J.

text:
    Emma Van Wert, Resp’t, v. St. Paul Fire and Marine Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Appeal—Direction op verdict. " r
    In refusing a direction of the court to a jury to find a verdict upon the-evidence in favor of the plaintiff against the defendant, that view of the evidence should be taken which is most favorable to the defendant.
    2. Same.
    In an action on a policy of insurance, where the defendant gives evidence that the policy was canceled before the fire, it is error to direct a verdict for the plaintiff. -
    3. Insurance-Payment oe premium.
    A transaction between a company and its agent, without the knowledge, consent or subsequent ratification of the insured, whereby the agent is charged with the premium due on the policy and on its cancellation is credited with the unearned portion thereof, is not a payment of the premium which will inure to the benefit of the insured.
    Appeal from a judgment, entered on a verdict for plaintiff by the direction of the court.

      William D. Murray, for app’lt;

      P, & C. F. Cantine (Charles F. Cantine, of counsel), for resp’t.
   Herrick, J.

This is an appeal by the defendant from a judgment rendered upon the verdict of a jury rendered by direction of the court, in favor of the plaintiff and against the defendant. The action is upon a policy of fire insurance. In reviewing a. direction of the court to a jury to find a verdict upon the evidence in favor of the plaintiff and against the defendant, that view of the evidence should be taken which is most favorable to the defendant. The policy in question was issued to the plaintiff. No premium was paid at the time; no premium was ever paid by the-plaintiff; and the contention of the defendant is that such policy was surrendered by the plaintiff to the defendant’s agent through whom the policy was issued, and the same canceled for nonpayment of the premium. That the defendant obtained possession of the policy before the fire is unquestioned. The contention of the plaintiff is that it was not surrendered up to be canceled, but that the same was delivered to the defendant’s agent without her knowing what was to be done with it. The agent, upon the contrary, claims that he called upon her several times to procure payment of the premium, and, not succeeding, requested the return of the policy; and that subsequently he mailed the policy hack to the plaintiff, informing her that if the premium was not paid within a reasonable time, the policy would be canceled. That at a later time—on November 6th—he again procured the policy from the plaintiff, and told her that if it was not paid by the last day of the month it would be canceled; and, no payment being made thereon by her before that time, it was canceled. The policy provided that it might be canceled upon five days’ notice. If this story is true,—and under the evidence the jury would have a right to find that it was true,—this, beyond all questions, terminated the policy, .and I think the defendant had a right to have the question submitted to the jury as to whether the policy had been canceled before the fire.

The other question in the case is this: In making up the accounts between the defendant and the agent of the company who issued the policy in question, the amount of this policy was charged to such agent, and upon it being canceled the unearned portion thereof was credited to such agent. It does not appear that this was done either at the request of or with the knowledge of the plaintiff, for after the fire occurred, and before the commencement of this action, she tendered the full amount of the premium to the defendant. The claim is made that this payment, if it can be called such, by the agent to the company, in'ured to the benefit of the plaintiff, and was in law a payment by her, so far as the insurance company was concerned, of the premium. Without citing any authorities upon that question, it seems to me that, even if it should be considered payment by the agent, instead of a mere regulation of the accounts between the company and the agent, it is not one that inures to the benefit of the plaintiff. She did not request it. It does not even appear that she knew that it had been done. So far as the evidence shows, the only communication that was made to her was in. asking her to pay the premium, and to inform her that the policy would be canceled if it was not. As a matter of fact she did not pay one dollar, and •did not. offer to pay the premium until after her property had been destroyed by fire. There was neither prior authority nor subsequent notification. The agent was not her agent, but the .agent of the company. She never ratified his act before the fire, •because she did not know that it had been done. She did not ratify it after the fire, and before the commencement of this action, but, on the contrary, tendered the amount of the premium, assuming it to be unpaid.. It seems to me that the transaction was a mere matter of accounts between the defendant and its agent, of which the plaintiff cannot take advantage.

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

All concur.


text:
    Thomas B. Belch, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Negligence—Contributory. '
    In an action for personal injuries through negligence, it is incumbent upon the plaintiff to establish affirmatively the absence of contributory negligence on his part; and where he knows that he is in a place of danger, it is incumbent upon him to get out of it as soon as possible.
    S. Same—Question por jury.
    The evidence in this case was held insufficient to show absence of contributory negligence.
    Appeal from, a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Ashbel Green (F. L. Westbrook, of counsel), for app’lt;

      Carroll Whitaker (E. Countryman, of counsel), for resp’t.
   Herrick, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant, and from an order denying a motion for a new trial. The .action is one for alleged negligence, whereby the plaintiff lost one of his hands. The accident happened on the 14th of August, 1893, at a place where a highway called People’s Road ” crosses the tracks of the defendant, at a point about one mile north of the village of Saugerties. The People’s highway runs east and west, and the defendant’s tracks north and south. The ‘westerly track is known as the “south-bound track,” — that is, the track trains run on that are going southward; and the easterly track is known as the “north-bound track,”—that is, the track trains run on going to the north. The plaintiff approached these tracks from the west and testifies that, when he was within fifteen or twenty feet of the westerly track, he stopped his horse, and looked and listened for approaching trains, but neither saw nor heard any. He then drove on, and as he was crossing the westerly track, the right forward wheel of his carriage slipped off its axle, and his carriage tipped, and threw him out. The plaintiff was familiar with the crossing. He knew that there was a train that left Saugerties about 8:28 in the evening, and it was then in the neighborhood of half past eight. He says he realize the necessity of getting his horse and wagon off of .the tracks. He says that he went to his horse’s head and looked and listened for approaching trains, but neither heard nor saw any. He attempted to lead his horse off the track, but found that the carriage was in some way fastened. He then went to the axle, where the wheel was off, and found that it had fallen between the planking of the crossing and the west rail of the south track. He lifted it up out of its place, and then groped around for the wheel, which he finally succeeded in finding. He had some difficulty in placing the wheel on the axle, but finally, succeeded in getting it on. He then groped on the ground, hunting for the nut, stooping over, with his hands on the ground. lie did not succeed in finding it. He then returned to his horse’s head He says:

“I went to my horse’s head and reached out. Whether I caught the bridle or the rein, I can’t say which, but,.in my attempt to reach, I saw a flash of light, heard a roar and a wh-r-r-r, something in that style. I was whirled around, with my right hand in under me, and thrown down on my stomach, and the breath was knocked out of me, and my left arm and hand extended in that position. [Ind.]" 1 was in a dazed or semidazed condition. I saw the receding lights of a disappearing train in the distance. I mean the rear light of the train,— some colored lights. I saw them going away from me, towards the north.’’

He states that the interval of time between the flash of light and the roar heard by him until he went down was imperceptible. When he got up, his hand was hanging from his arm by a shred of skin, and was subsequently cut off. The night was dark, but not a stormy one. From the crossing the tracks of the defendant run straight south, for a distance of 2,800 feet, to a curve in the road, beyond which the tracks cannot be seen. From the crossing where the accident happened to such curve' the view is clear and unobstructed. No whistle was blown by the locomotive, and there is a conflict of testimony as to whether any bell was rung. The testimony is practically undisputed that the headlight of the locomotive can be seen from the crossing to the curve, and that the noise of an approaching train can be heard for more than that distance; one witness testifying that it could be heard when it started to leave the station at Saugerties, about one mile away. That there was a light in the headlight of the locomotive is undisputed.

I will not discuss the matter as to whether there was negligence on the part of the defendant, but.for the purposes of this appeal, assume that there was sufficient evidence of negligence to warrant the verdict of the jury. It is incumbent upon the plaintiff to establish affirmatively the absence of contributory negligence on his part. Has he done so ? He knew that he was in a place of danger He knew it was incumbent upon him to get out of it as soon as-possible. To this he testifies. Did he make sufficient effort? Dili he take sufficient precaution ? His first effort to remove his horse and carriage from the track was futile, because the axle had become firmly fixed between the planking and the rail, but when he had removed it from that position, there was no longer any obstacle to removing them from the track, either by promptly driving over both tracks, or backing them out of danger. He did neither. He first went in pursuit of the wheel, to put it on the axle. This took some little time. Again he consumed some time as he testifies, in putting it on the axle after he had found it.

Then, again, he could have driven across the.tracks, or backed from them, but he did neither. He then consumed some time groping upon the ground, in endeavoring to find the nut to place upon the axle. On each or these occasions he is particular to say that he looked to the north and the south, and listened to see if he could hear anything of an approaching train or trains, but neither saw nor heard anything. He was then on the west-bound track. He then went to his horse’s head, which he testifies “ was on the third rail from the west,” which would be the westerly rail of the north-bound track, and was instantly struck. It has been held to be the duty of a person approaching railroad tracks to look and listen for approaching trains. It may be perhaps assumed that, if one performs that duty, and sees or hears nothing, and goes on that he has discharged every duty that is incumbent upon him to' relieve himself from the charge of contributory negligence; and it is possible, that, if the plaintiff’s story as to what he did is absolutely true, he performed every duty that devolved upon him, under the circumstances, to protect, himself against danger. But, after carefully considering the evidence, I cannot persuade myself that the story is true. It seems to be inconceivable that, if he had done what he says he did do, he should have neither seen nor heard the approach of the train which injured him. It needs no evidence to satisfy me that the approach of a railway train can be heard for a considerable distance; particulerly when there appears to be no other noise mingling with it, to distract attention. ■ There is testimony in this case that the approach of a train could be heard for over three-quarters of a mile. It needs no evidence to satisfy me that the light from a locomotive headlight can be seen a long distance, when there is nothing to intercept the view. There is evidence in this case, which is undisputed, that such headlight could be seen for a distance of two thousand eight hundred feet. The ability to hear the noise and see the light of an approaching train are undisputed facts, with which the testimony of the plaintiff that he looked and listened, and neither saw nor heard anything, comes in conflict. From our own knowledge, as well as the testimony of the witnesses in this case, we know that a person on the tracks of a railroad can hear the noise of an approaching" train if he listens. From our own knowledge we know" that a person upon the tracks of a railroad, with his view unobstructed, can see the light of a locomotive headlight, if he looks, and there is one there to be seen; and yet we are asked to believe that the' plaintiff looked and listened, and heard and saw nothing of the approach of the train,' although it could be seen for a distance of 2,800 feet; that he walked from a position of security on.the west to the east track, neither seeing nor hearing this approaching train, until it struck him, only seeing the light and hearing the noise almost the instant that it was upon him. The approaching train could be seen when at a sufficient distance away for him to avoid it if he had looked; and, if he looked, he must have seen it. If, when he placed the wheel on his carriage, or when he ceased hunting for the nut, and before he went to his horse’s head, he had looked, he must necessarily have seen the light, and, when he says he did look both ways, and ,did not see or hear the train until it struck him, I do not believe his story, and consequently cannot see that he took reasonable precaution to avoid the accident. Stopp v. Fitchburg Railroad Co., 80 Hun, 178 ; 61 St. Rep. 629, and cases cit$d.

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

All concur.


text:
    People ex rel. Charles S. Nisbet, App’lt, v. Common Council of the City of Amsterdam et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Municipal corporations—Claims—Audit.
    Where, by a special law, it is provided that an act or thing shall be done by the city authorities, and the specified method is not prescribed, and in the charter of the city there is a specified method prescribed for the doing of similar acts or things, the act authorized to be done by the special law is to be done in the manner pointed out in the charter for the doing of such similar acts or things.

      % Same.
    The common council of the city of Amsterdam has no power to allow a claim against the city without first referring it to the auditing committee.
    3. Same—Expenditure op money—Resolution.
    A resolution of the common council, allowing claims for expenditures under a prior resolution, is a resolution “for the expenditure of money,” which the mayor may veto.
    4. Same—Committee of council.
    The refusal of a committee, to which a claim against the city is referred, / to allow the claimant to appear, invalidates action on such claim.
    Certiorari to review the proceedings of the common council of the city of Amsterdam in auditing the claim of relator against it for legal services.

      Edward P. White (Nisbet & Hanson, of counsel), for relator;

      Louis H. Reynolds, for resp’t.
   Herrick, J.

This is a proceeding by certiorari, to review'the proceedings of the common council of the city of in auditing the claim of the relator against the said city for legal services. By chapter 53 of the Laws of 1892, entitled “ An act to provide for the improvement of Bridge street, in the city of Amsterdam,” the city of Amsterdam was authorized to make certain public improvements, and for that purpose was empowered to take proceedings to acquire such real property as might be necessary to be used, and to assess and award the damages therefor. The city authorities determined to act under the authority given them by such act, and took proceedings to condemn property anB award damages; and it appears to be conceded that the relator was employed, and legally employed, to conduct such proceedings on behalf of the city. The proceedings were conducted to a conclusion by the relator. On the 9th day of March, in the afternoon, he presented his bills for the services rendered; and, on the 11th day of March a resolution was passed allowing such bill, at the sum of $4,823.54. On the 15th day of March, the resolution auditing the relator’s bill was vetoed by the mayor. The veto was sustained. The relator re filed his bill, and resubmitted it to the common council, by whom it was referred to the law committee. The law committee was discharged from its further consideration, and the common council passed a resolution allowing or auditing such bill at the sum of $2,523.54. This is a very general statement of the proceedings sought to be reviewed. They will be examined more in detail in determining the questions of law involved.

Section 2 of chapter 53 of the Laws of 1892 provides that the commissioners’ fees, “ and other necessary costs and expenses (all of which shall be audited and the amounts therefor fixed by the common council), shall be considered a part of the expense of said improvements.” Special statutes in relation to a city are to be read in connection with the charter of such city, and made to harmonize with it, if possible, so as to make such laws a complete whole, the same as if such special law were an amendment to the charter. And where, by a special law, it is provided that an act or thing shall be done by the city authorities, and the specific method is not prescribed, and in the charter of the city there is a prescribed method for the doing of similar acts or things, then the act authorized to be done by the special act is to be done in the manner pointed out in the charter for the doing of such similar acts or things.

Section 131 of chapter 31 of the Laws of 1885, being the charter of the city of Amsterdam, provides that:

“All accounts and claims against the said city, and all accounts and claims for services rendered or moneys expended by any officers within said city, which would be charges and accounts against a town, if they were rendered or expended by the officers thereof, shall be presented to the common council, and the same shall be referred to a standing committee of said board, to be composed of one member from each ward, to be called ‘committee on auditing accounts.’ It shall be the duty of said committee to inquire or examine into said accounts and they may send for persons and papers, and may examine the claimant on oath in relation thereto. The said committee" shall report the matters referred to them to the common council either favorably or adversely, with their reasons, and the said common council shall then hear, examine and determine the same as a board of town auditors, and for that purpose shall possess the powers and be subject to the duties of town auditors.”

The process, then, of auditing claims against the city of Amsterdam, of which the bill of the relator is one, is that it shall be presented to the common council, and then referred to the “ committee on auditing accounts,” to be examined by it, and the result of its examination reported to the common council. There is no evidence that any such course was taken in this case, and, so far as can be inferred from the proceedings, it was not referred to the auditing committee. I have heretofore stated that the claim was presented on the 9th day of March, in the afternoon, and- audited on the 11th. The 9th day of March was Saturday. The election for city officers and members of the common council had taken place on the preceding Tuesday, being March oth. It was the duty of the common council to meet on the following Monday, at ten o’clock in the forenoon, for the. purpose of canvassing the votes cast at such charter election ; and it was at the meeting held for such purpose that the resolution was passed allowing the relator’s bill. There was no meeting of the common council between the time when the bill was presented on the 9th, which presentation was made by filing it with the city clerk, and the meeting on the 11th, when such bill was allowed, when it could have been' referred by the common council to the auditing committee. I think the presumption arises from tnis statement of facts that the auditing committee never had the bill before it, and never in any way considered it. Indeed, the return states that the bill presented by the relator was never seen by any member of the common council until several days after March 11th. The resolution by which the relator’s bill was allowed also included the awards of the commissioners for damages, and various other items of expense of the proceedings, in addition to the bill of the relator. The allowance"of such bill was therefore illegal, and not binding upon the city, because the requirements of the law for the auditing of claims were not complied with.

There is still another objection to this allowance of the claim. The charter of the city of Amsterdam provides that the term of office of elective officers shall commence on Monday following the annual election. Laws 1885. c. 131, § 11. The mayor’s term of office is for one year. Id. § 12. Consequently, the term of the mayor who was in office when this bill was presented would expire on the 11th day'of March, and the term of the new mayor would commence on that day. Section provides that, where the term of office of the mayor shall expire within five days after a transcript of any ordinance, resolution, order or act shall have been filed with him, such ordinance, resolution, order or act shall have no force. Obviously, a resolution passed on the last day of the existence of the old common council, on the same day and at the same meeting at which the votes cast at the election for mayor were to be canvassed and the result of such election declared, and on the day when the term of office of the mayor ceases, is within the meaning of this prohibition.

But, however that may be, the mayor whose term of office commenced on March 11th vetoed the resolution in question. By section 34 of the charter of the city of Amsterdam, heretofore referred to, the mayor is empowered to veto “all order's, resolutions or ordinances which shall have passed the common council for, the expenditure of money.” The resolution by which the relator’s bill was allowed, as I have stated, included a number of other items of expenditure which would very properly come under the head of a “ Resolution for the Expenditure of Money.” It is contended that a resolution like the one in question is not subject to the veto power of the mayor, because it is said it is not a resolution for -the expenditure of money, and it is argued that the resolution for the expenditure of the moneys in question here, within the meaning of section 34, was the resolution or ordinance that was passed which authorized and initiated the improvement; that, the ordinance having been passed authorizing the improvement, the necessary expenditures resulting therefrom were binding upon the city; and that the direction by the common council to pay them is not an act authorizing the expenditure of money, but is simply a determination of the amount to be paid under such previous authorization. E cannot accept that construction of the language in question. The power conferred is one very commonly vested in mayors of cities in this state, and is for the purpose of giving them power and authority over public expenditure, and to enable them to check needless or wasteful expenditure of the public money. To enable them to do this, and fulfill the intent of the statute, it is obvious that it must extend to a resolution or ordinance which authorizes an act to be done which calls for the expenditure of money, and, in addition, allows him to act upon the resolution or audit of the common council of the expenses incurred, to determine whether they are necessary, extravagant or wasteful. It must be apparent that an ordinance providing for a public improvement may be perfectly wise and proper; yet the manner in which it is carried out may be wasteful, extravagant and dishonest; and it is just as necessary that the mayor should have a supervision and check upon the manner in which such improvement is carried into effect, and the expense thereof, as upon the ordinance or resolution which initiates and authorizes the expenditure of inonej. The first step authorized an expenditure; the last determines the amount, and'directs its payment. Each is a resolution or ordinance “for the expenditure of money,” and each is subject to the veto power of the mayor, within the language of section 34. For these reasons, I think the audit and .allowance of relator’s bill on the 11th day of March was illegal, .and not binding upon the city.

When the mayor’s veto came to be considered by the common ■council, the relator was heard in relation thereto, and at that time presented a number of affidavits as to the value of the services he had rendered; and, upon the veto of the mayor being sustained, he refiled and resubmitted his bill for services to the common council. The common council referred it to its law committee, which proceeded to consider it, and examined witnesses in relation to such claim. The relator asked leave to appear before the committee, and take part in said investigation; but the committee refused his request, and did not allow him to come before it, or to examine any of the witnesses summoned by it. The relator thereupon procured a writ of prohibition, prohibiting the said committee from submitting to the common council the depositions or testimony taken by it relating to the value of the services of the relator, or submitting any report, finding or decision in relation to said claim. After such writ of prohibition was served, affidavits were procured by members of the common council, or by some -one acting in their behalf, as to the value of relator’s services. The law committee was discharged from the consideration of such -claim, and the common council then and there, at the same meeting at which the law committee was so discharged, passed a resolution allowing the relator’s claim at the sum of $2,523.54. This last audit and allowance was irregular and illegal. The bill was not presented to the “committee on auditing accounts,” and has not been investigated by it, and a report of its investigation made-to the common council. Submitting the claim to another committee of the council will not answer the purpose. I do not mean to say at this time that they had no right to have the matter referred to the law committee to investigate any legal question involved. Possibly that may be true, but an examination and investigation of the merits of the claim itself should be made by the “committee on auditing accounts.” When the legislature made that the tribunal for investigating claims, it excluded every other committee of the common council. Further than that, the investigation that was conducted by the law committee was illegal It was not such a hearing of the plaintiff’s claim as the law contemplates. He was given no opportunity to confront and examine the witnesses produced against him. The bill was considered by that committee in executive session, which means a secret session, when he could not be present to hear or answer arguments-against the allowance of his claim. He asked to appear before the-committee, and his request was refused. A hearing and investigation conducted in such a manner cannot be tolerated in law, and-can lay no foundation for a valid action by the city authorities. He was compelled to submit his claim to the common council That body was made the court to pass upon his rights. Before his rights could be determined, he was entitled to “ an opportunity to be'heard, and to defend, enforce and protect his rights.”' A failure to give him such opportunity to enforce his claim is depriving him of due process of law in enforcing his rights. Stuart v. Palmer, 74 N. Y. 183-191; Peoples. O'Brien, 111 id. 1-62. 19 St. Rep. 173.

For these reasons, I think the writ of certiorari must be sustained, and the audit and allowance of the relator’s claim by th& defendants vacated and set aside, with $50 costs and disbursements of these proceedings to the relator.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    People ex rel. Charles S. Nisbet, App’lt, v. Common Council of City of Amsterdam et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Appeal from special term, Montgomery county.
    Petition by Charles S. Nisbet for a writ of prohibition to the common council of the city of Amsterdam, William A. Fisheiy as mayor, and Thomas J. Hazlett, as clerk, of such city, to restrain defendants from'using, considering or taking cognizance of certain testimony taken by the law committee of the common council relating to a claim of relator against such city, and prohibiting such law committee from returning the same to the council, or taking any further testimony in the premises. From an order of the' special term granting the writ, defendants appeal.

      Louis H. Reynolds, for app’lts;

      Edward P. White (Nisbet & Hanson, of counsel), for resp’t.
   Herrick, J.

This is an appeal from an order granting a writ of prohibition. It arises out of the same proceedings that have been considered by us at this term in the case of People v. Common Council of City of Amsterdam, 36 N. Y. Supp. 59. After the claim of the relator, as allowed by the common council, had been vetoed by the mayor, it was then resubmitted to the common council, and by them referred to its law committee, as stated in the opinion in the last-named case. The law committee proceeded to take testimony as to the value of relator’s services. The relator requested leave to attend such hearing of the law committee, and take part in said investigation, but that committee refused such request, whereupon proceedings were taken, which resulted in the granting of the order which is now appealed from, which restrains and prohibits such committee from proceeding with such-investigation, and from making any report of the result of their investigation to the common council.

As I have stated in the discussion of the principal ease, the charter of the city of Amsterdam provides that claims against such city shall be referred to the “ committee on auditing accounts,” aud that such provision of the statute excludes other committees from acting. The law committee was therefore without jurisdiction. In addition, it is to be said that the law committee was proceeding to pass upon the merits of the relator’s claim, presumably with the intention of making a report thereon to the common council, without giving him an opportunity to be heard, without permitting him to confront the witnesses being examined or to cross-examine them. A claimant’s right cannot be disposed of in that way. Such a proceeding to determine a person’s rights or interests is contrary to the law of the land; it is not due process of law.

The order appealed from should be affirmed with $10 costs and disbursements.

Mayham, P. J., concurs; Putnam, J., not acting.


author: Hardin, P. J.

text:
    Christina Kuhn, as Administratrix, etc., Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General term, Fourth Department,

      Filed December 26, 1895.)

    1. Appeal—Second.
    Where, on the second trial of an action for death resulting from injuries caused by defendant’s negligence, a trial judge, in the course of his rulings and in his charge, follows the doctrine laid down by the supreme court on a prior appeal, the verdict and judgment will not be disturbed on a second appeal.
    2. Negligence—Contributory.
    The right to recover for injuries causing death by wrongful act is not affected by the negligence of the decedent, where death would have resulted even though he had not been negligent.

      3. Evidence—Opinion.
    Iti an action where the death of an employee was caused by an insufficient scaffold, a carpenter may be permitted to give his opinion of the nature and character of the material, or of its strength, and to state that a stick of timber 2x4 would exceed in strength one made of inch boards.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      William Kernan, for app’lt;

      Charles H. Searle, for resp’t.
   Hardin, P. J.

Plaintiff's intestate, at the time he received the injuries complained of, was at work upon a scaffold which had been erected by the defendant to use in reslating the roof upon its «engine house in the city of Utica. In September, 1891, the superintendent of repairs of the defendant directed the foreman of the -defendant’s carpenter shop to construct “some horses that would be sufficient for men to work on and slate the roof,” whicli direction was not accompanied by any specific instruction as to what - material was to be used, nor the number of men that were to "work ^"lpon the scaffold. The scaffold was constructed some sixteen feet -above the ground, and in length about twenty-five feet, supported by three horses, — one at each end, and the other in the center. Evidence was given upon the trial tending to show that the accident was occasioned by the giving way of one or more of the horses upon which the planks for the platform or scaffold were placed. While there was considerable conflict in the evidence, were are of the opinion that the jury had before it evidence suffici-ent to warrant it in finding that the injuries the plaintiff received were due to the- structural weakness of the scaffold, which originated from the use of insufficient or improper materials, and from its being constructed in an insufficient and improper manner. Defendant sought to have the court nonsuit the plaintiff, and, when the motion for that purpose was denied, took an exception. When this case was before us on former appeal (77 Hun, 389; 60 St. Rep, 406), quite a full discussion was had of the principles of law ■applicable to the general features of the case, and near the close -of the opinion it was said:

“ That the defendant owed the plaintiff’s intestate the duty to -exercise reasonable care and prudence to furnish him a safe and proper place in which to prosecute his work, and if it became dangerous, and the danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such care and adopt such precautions as would protect the intestate, is abundantly established by the authorities cited. That this duty could not be delegated by the defendant to any of its servants, so as to exonerate it from responsibility to the plaintiff or her intestate, is equally well settled.”

After a full consideration of the evidence found in the present ■appeal book, and due deference being had to the conclusion we there reached, we think the trial judge properly submitted the question to the jury whether the defendant had performed its full -duty, and, if not, whether its omission occasioned the injury to 4he plaintiff’s intestate, and whether that injury'resulted in his ■death. We think, upon the whole evidence, these were questions of fact for the jury to determine, and that the trial judge properly refused to hold in accordance witli the defendant’s contention upon them, as matters of law, and committed no error in confiding the -questions to the jury. Apparently, the trial judge, in the course of his rulings at the trial, and in the delivery of his charge to the jury, followed the doctrine laid down in the opinion of this court when the case was here upon the former appeal. The jury were carefully instructed that if the deceased in any way contributed to the injuries which lie received, especially if he “knowingly aided in placing too much weight upon the scaffold,” a recovery could not be had.

We think no error was committed by the trial judge in delivering the case to the jury upon that branch which relates to the ■conduct of the deceased after he received the injuries. The jury were told, in explicit language, that:

“ If there was negligence on the part of the deceased contributing to the death, and in the absence of which the death would not have occurred, then it could not be said that his death was the result of the accident, but was the result of his own negligence. But if death would have occurred in any event, whether he was careless or not, then I do not think the defendant is relieved.”

The principal language we have given was again repeated, and, we think, was sufficiently adhered to in all comments made by the trial judge to the jury on that branch of the case, and that the exceptions taken by the defendant to the charge in regard to that branch of the case do not present any error requiring us to interfere with the verdict.

3. We think no error was committed in receiving the testimony ■of the wife of the deceased, and that the exception taken to the questions propounded at folios 107 and 110 present no error.

4. When the question was propounded as to the custom to slate ■upon scaffolds, at folio 159, it appears by the case that the question was answered before any objection was made thereto. When the objection was heard, the court observed, “I will let it stand.” The fact had already appeared in the case that scaffolds were used in process of slating, and we think the question may have been understood to be an inquiry as to a knowledge of the witness on the subject of the use of scaffolds in slating roofs. We think the ■exception taken to the observation of the court does not require us to interfere with the verdict.

5. When Richards, a carpenter and builder, was upon the stand, he gave evidence as to his experience in having erected scaffolds for shinglers and repairers to work upon, and stated that he had erected many scaffolds upon which slaters had worked;'and, without objection, he stated that hemlock has “a loose fiber.” Thereupon he was asked, “Is it a strong wood, or a weak wood, in the form of a board?” This was objected to as incompetent, and the objection was overruled, and the defendant took an exception. The only answer to witness made was in the following language, "“Well, it is, not so strong as some wood.” Thereupon the question was propounded to him, “What wood is stronger?” This question was objected to, and the objection overruled, and defendant took an exception, and the witness answered, “Most any kind of wood.” He was then, against the defendant’s objection and exception, allowed to state the effect of nailing upon a hemlock board, and, in answer to the question, said, “Well, of course, it don’t hold as much as it would in thicker stuff.” After that answer had been given the defendant moved to strike out the answer, and the court refused, and the defendant excepted. Some-other questions were propounded, of a similar nature, relating to-the nature and character of hemlock, and the strength of inch boards. Most of the facts stated by the witness are so well understood that the court may be said to be able to take judicial notice thereof. However, under the circumstances, we think that the witness was not improperly permitted to give the facts narrated by him in respect to the nature and character of hemlock, or its strength as material to be used in scaffolding. ' Hor do we think there was any prejudice in allowing him to state—what must be quite obvious to the common sense of any individual—that a stick of timber 2x4 would exceed.in strength one “being made of inch boards.” We are of the opinion that there is nothing found in the testimony of Richards, the carpenter, which requires us to disturb the verdict of the jury.

In the course of the charge delivered by the judge, he referred to the rule laid down in Stringham v. Hilton, 111 N. Y. 195 ; 19 St. Rep. 621, and called the attention of the jury to the statement in the course of the opinion that the question is—

“ Whether, in selecting • tools and machinery for their use, he-was reasonably prudent and careful, not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied."

He followed this rule of law by observing, viz.:

“Evidently, the horses might have been made larger and stronger. As suggested by the counsel, two. by fours might have been used for the legs. They might have used immensely stronger lumber all round,-—-larger size, and all that. The defendant was not guilty of negligence because it did not furnish the very strongest horses that could have been made. That is not the test. The question is whether the one it did furnish was reasonably safe. That is the rule. Of course, it is a question of fact in each particular case."

We think the questions relating to the alleged insufficiency of the scaffold were properly and carefully submitted by the trial judge to the jury, and that their findings are adverse to the defendant, and it seems to be our duty to accept their verdict.

Judgment and order affirmed, with costs.

All concur.


text:
    William Duffus, Resp’t, v. Christopher Schwinger et al., App’lts.

      Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Appeal—Evidence.
    A new trial will not be granted, where the testimony is contradictory, and the character and credit of the witnesses are questioned, on the ground that the verdict is against the weight of evidence.
    Appeal from a judgment for plaintiff, and from an order •denying a motion for a new trial heard on the case and exceptions.
    In the plaintiff’s complaint it is alleged that the plaintiff became the owner of three several chattel mortgages upon the boat Kenyon & Newton and the appurtenances, and that default had occurred in the terms of the mortgages, and “the said defendants, at the city of New York, on the 18th day of October, 1890, and while said property was owned by or in possession of said plaintiff, wrongfully took and converted said canal boat Kenyon & Newton and appurtenances to their own use, thereby depriving plaintiff of the possession and of» the benefit thereof. The plaintiff, on that day, and for a long time before, was and has been entitled to the possession thereof. That said several mortgages were made for good and sufficient considerations, and without intent on the part •of said Eugene Cummings, or Daniel Cummings, or this plaintiff, of hindering, denying, or defrauding creditors.” It is also alleged that the plaintiff, before the commencement of this action, demanded of the defendants possession of the said property, and delivery of"the possession and that the defendants wrongfully took said property from the possession of the plaintiff, and unjustly detain the same. The defendants, in their answer, admit that a demand was made upon them for the possession of the canal boat called Kenyon & Newton. They allege, however, that at the time the demand was made they did not have- the possession of the boat, and they allege that before this action was commenced the plaintiff took possession of the boat, “and that the same was lost or destroyed through the carelessness and negligence of said plaintiff, his agents, servants, and employees. ” They also allege as a defense: “That said canal boat was sunk or destroyed by reason of a storm, while lying in the waters of New York, and without any fault or negligence of these defendants, or while the same was not in their possession or control.” At the circuit held on the 28th of January, 1892, an order was granted allowing the complaint to be amended so as to demand damages in the sum of $2,500. After a former trial, and a verdict for the plaintiff, we reversed an order refusing a new trial on the ground of a surprise, and granted a new trial “upon payment of the costs of the trial by the defendants ; ” and we then held that, “ in case the costs are not so paid, the orders and judgment are affirmed, with costs of appeal from judgment.” 23 N. Y. Supp. 1151. Upon a second trial the plaintiff again recovered a verdict, and a motion for a new trial was made at a special term, February, 1891, and denied, and the judge who presided at the trial where the motion was denied delivered am opinion, which is found reported in 7 Misc. Rep. 499; 58 St. Rep. 796. From that judgment, and the order denying the motion for a new trial, an appeal was taken to this court, and the judgment and order were reversed, and a new trial ordered, when this court held, viz.:
    “ The fact of agency cannot be proven by the declarations or acts of the alleged agent, and upon the trial of action the declarations of an alleged agent are inadmissible in evidence for that purpose;” and that the value of the chattel under such an action as this should be fixed according to the provisions of section 1726 of the Code at the time of the trial. The case is reported in 79* Hun, 541; 61 St. Rep. 549. Hear the close of the opinion in that case it was intimated that it was a question “whether, in any event, the plaintiff can recover more than the amount of his claims,” and Townsend v. Bargy, 57 N. Y. 665, was referred to.
    Upon the trial now brought in review, at the close of the evidence the plaintiff expressly stated that he was only “ entitled to-a judgment for damages for the value of this boat and for damages of detention up to the full amount ” of the claim shown to-exist upon the boat in favor of the plaintiff.„ At the close of the evidence the defendants asked the court to direct a verdict for the defendants upon several grounds mentioned, which request was-denied, and the defendants excepted.
    Thereupon the defendants’ counsel asked the court “ to define the questions which should be submitted to the jury. It may abbreviate my argument.” In response to that request the cou'rt observed: “The main question, of course, relates to the possession of the boat. That involves several subordinate questions, such as whether the boat was in existence at the time the action was commenced, as to the agency of Mr. Petrie, and as to whether there had been an assigment, so that the interest of the defendants had passed from them to Mr. Petrie; and of course, as to the present, value of the boat, and -the amount of the damages for the detention.” The court added: “ I am inclined to follow the intimation of the general term, in view of the authorities that they cite, and to instruct the jury to find what the present value of the boat is? and what the damages for detention are, with the further instruction that the aggregate of the two cannot exceed the amount of the claim” of the plaintiff.
    Ho exceptions were taken to the intimations thus made by the court.

      George W. Cothran, for app’lts;

      Waller S. McGregor, for resp’t.
   Hardin, P. J.

Upon the request of the defendants’ counsel at. the close of the evidence, the court outlined the leading questions of fact arising in the case which were for the jury to determine. Thereafter the court delivered a very lucid, clear, and elaborate charge to the jury, modestly witholding his own opinion upon the questions of fact which arose in the case, and which were delivered over to the jury to determine, applying the principles of law which have heretofore been announced in the determination of the case. We are asked to disturb the finding of the jury upon several of the questions of fact which were thus stated by the trial judge to the jury. Upon looking into the evidence, we find a sharp and stubborn conflict in the evidence detailed by the witnesses, and if we were to attempt to reconcile the conflicting statements, we should find great difficulty in doing so. If we were called upon to determine the inferences and deductions to be drawn from the evidence, we should find that it is quite a difficult task to disagree with the conclusions, upon all the evidence, reached, by the jury. If however, we, upon reading the evidence! were of opinion, ■ had we sat upon the jury, we might have reached a different conclusion from that.arrived at by the jury, still it would be our duty to accept the verdict of the jury. Beckwith v. Railroad Co., 64 Barb. 299 ; Gildersleeve v. Landon, 73 N. Y. 609 ; Koehler v. Adler, 78 id. 287; Eisenlard v. Clum, 22 N. Y. Supp. 574; Halsey v. Hart, 32 id. 666.

Appellants ask us to interfere with the verdict as against the weight of evidence. In Morss v. Sherrill, 63 Barb. 21, it was said that, to justify an appellate tribunal in setting aside a verdict, “ it must be entirely against the weight of evidence.” And in that case it was further said that a new trial would not be granted where the testimony is contradictory, and the character and credit of the wirnesses are questioned, on the ground that the verdict is against the weight of the evidence. In the case at hand we find that there is a severe conflict, and we are of the opinion that the trial judge very cautiously and carefully, upon all the critical questions, pointed out to the jury the bearing of the evidence, and invoked their attention to it in such a' way as to challenge a fair conclusion thereupon.

The jury saw the witnesses, heard them testify, observed their manner of testifying, and were called upon to determine what credit should be given to the respective witnesses in the light of all that transpired at the trial. According to well-established rules in dealing with the verdict, we think the conclusion pronounced by the jury should be allowed to remain. Chaffee v. Morss, 67 Barb. 252; Brooks Moore, id. 393. Besides the verdict of the jury we have the approval thereof made by the trial judge after reviewing the same upon a case and exceptions. We have looked with care through the argument of the learned counsel for the appellants, and we are of" the opinion that the contention of the defendants against the verdict must fail.

Judgment and order affirmed, with costs.

All concur.


author: Haight, J.

text:
    John A. Fowler et al. v. Theodore Fowler et al.

       James A. Merritt, Resp’t, v. John A. Fowler, Impleaded, etc., et al., App’lts.

      (Court of Appeals,

      Filed December 10, 1895.)

    Costs—Surplus moneys.
    In a proceeding for the distribution of moneys in the hands of a referee arising from a sale in. an action of partition, motion costs and disbursements, and not costs as in an action, are allowable.
    Appeal from order of the general term of the supreme-court in the first judicial department, which affirmed an order of special term denying a motion to vacate an order directing the payment of certain moneys in the. hands of a referee to the respondent, James A. Merritt.

      Isaac N. Miller, for app’lts;

      William H. Bean, for resp’t.

       Mod’g and afi’g 66 St. Rep. 871.

   Haight, J.

The appeal book in this case is improperly entitled : In the action of Merritt v. Fowler. The order appealed from is entitled as hove indicated in both actions. The order, however, pertains to the action of Fowler v. Fowler, which is the proper title.

That' action was for the partition of real estate in which a judgment had been entered appointing one Wilbur Larremore referee to make a sale. A sale had been made and a portion of the purchase price paid over to the referee when Merritt, the respondent, in. an action brought by him against Fowler, procured an attachment and caused the same to be levied upon Fowler’s interest in the hands of the referee or under his control, and to which he was entitled. The action of Merritt v. Fowler then proceeded to judgment, after which an execution was issued to the sheriff, who made a demand upon the referee to pay over the amount in his hands belonging to Fowler, or sufficient thereof to satisfy the execution. ’ This the referee refused to do without an order of the court. Thereupon motion was made for such order, notice thereof being given to Fowler and all persons having or claiming a lien upon the funds. The usual order of reference was had. The referee made his report and the same remained on- file in the clerk’s office for the period of eight days; it was then confirmed and the order sought to be set aside made without further notice to the appellants. Ho exceptions were filed to the referee’s report by either of the appellants. Some irregularities are complained of, but we think they were properly disposed of in the courts below. The only error discovered by us pertains to the allowance of costs as in an action. In reference to this it is urged that the order does the appellants no harm upon the ground that if a surplus should remain after payment of the respondent’s claim it would go to another lienor who has not appealed. But we think this court ought not to permit the order to stand and thus become a precedent which may be misleading in the future. This is a proceeding in an action and not a special proceeding. It is a motion to distribute moneys in court in the hands of its referee, and the practice pertaining thereto is analogous to that of the distribution of surplus funds in foreclosure actions. Costs allowable in such proceedings are motion costs and disbursements, and not costs as in an action. McDermott v. Hennesy, 9 Hun, 59; German Savings Bank v. Sherer, 25 Hun, 409.

The order appealed from should be modified as to the allowance of costs so as to conform to the views herein expressed and as so modified affirmed, without costs of this appeal to either party. If the parties are unable to agree as to the amount of the costs and disbursements that should be inserted in the order, the same may be fixed by the special term.

All concur. Ordered accordingly.


author: Andrews, Ch. J.

text:
    The People ex rel. Lehigh Valley Railway Company, App’lt, v. City of Buffalo, Resp’t.

      (Court of Appeals,

      Filed December 10, 1895.)

    1. Municipal cobpobations—Buffalo—Local assessments.
    Under section 145 of the charter of the city of Buffalo, the assessors, in the absence of any other charter provision on the subject, are both to fix the district of assessment and distribute the tax.

      % Same—Cobeection of assessment.
    Where it appears that through inadvertence or an error of judgment on the part of the assessors, property of the relator not benefited by the proposed improvement has been included in the assessment with benefited property belonging to him, such inclusion is a defect which will warrant the court it sending th» assessment roll back to the common council to “amend or correct it pursuant to law” as provided by subdivision 7 of section 101 of the charter, instead of ordering it to be cancelled as illegal.
    3. Same—Local impbovement —Peupebty benefited.
    Where, above i'xc improvement along the relator’s water front on the river, thereps little if any rock, and the channel can, at a comparatively small expense, be made navigable by dredging, it cannot be said, as matter of law, that the removal of the rock below the relator’s land, which makes it impossible for the extension of the navigation of the river, at small expense, along relator’s land, will not add to its value.
    Appeal from order of the general term of the supreme court in the fifth judicial department, which affirmed an order of the special term, made in certiorari proceedings, declaring a local assessment for the dredging of Buffalo river, so far as it related to relator’s land, illegal and void, and directing that the assessment roll be returned by the comptroller to the common council of the city of Buffalo, to annul or correct the same according to law.
    The relator, appellant, contends on this appeal, in addition to its objections to the assessment roll, that, as the trial court found and decided that the assessment, in so far as it related to the relator’s lands, was illegal, the same should have been canceled and annulled on such decision, and that the order made by the court returning the assessment roll to the common council to be corrected or annulled was improperly and irregularly made and should have been reversed.

      Herbert P. Bissell, for app’lt;

      Frank C. Laughlin, for resp’t.
   Andrews, Ch. J.

We think the order in this case should be affirmed, and we shall briefly consider some of the questions not referred to in the elaborate opinion of Judge Green at special term.

(1) The claim that the district of assessment should have been fixed by the common council, and not by the assessors, depends upon the provisions of the charter. It was competent for the legislature to prescribe the public agency to which this power should be committed. It could have imposed this duty upon the common council or on a board of commissioners, or on the assessors. Spencer v. Merchant, 100 N. Y. 585. The charter does not in direct terms declare that the assessors are to determine the district of assessment. But we think this is the clear implication from its provisions. By section 405 of the charter (chap. 105, Laws of 1891) the city is authorized to dredge, deepen and .maintain the Buffalo river and to defray the expense-out of the general fund or by local assessment. Section 14S provides that the common council shall estimate and fix the amount of money to be raised by local assessment. There is no provision that the common council shall fix the assessment district. In the absence of any indication that the assessors or other body should possess this power, it might very well be that it would reside with the common council under the grant of legislative power. But section 145 declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the work, act or improvement in proportion to such benefit. The common council under the charter are to determine what local improvements shall be made and the -amount to be locally assessed therefor. But the clear implication from section 145, in the absence of any other charter provision on the subject, is that the assessors are 'both to fix the district of assessment and distribute the tax. The parties interested are authorized to file objections to the assessment when made, and are entitled to a hearing before the common council, and they have an opportunity in this way of having the common council pass upon the question whether the assessors erred in fixing the assessment district.

(2) The order directed that the assessment roll should be returned by the comptroller of the city to the common council to amend or correct the same according to law. The order sending back the assessment to the common council for amendment or correction was based on the finding of the court that the assessment of the relator’s property was unauthorized and illegal in so far as it included the portion of its land not abutting o.n Buffalo river and lying south of the Buffalo Creek railroad, which portion, consisting of more than two hundred acres of land, was separated by the roadway of the Buffalo Creek Bailroad Company from the portion of the relator’s land, comprising about thirty acres, abutting on the Buffalo river. The court reached the conclusion that the portion of relator’s land south of the Buffalo Creek railroad was so situated that it could not be benefited by the proposed improvement, and was, therefore, illegally embraced in the assessment. But the court decided that the thirty acres was properly assessable. There is in the evidence some color for the claim made in behalf of the city that the assessors in making the assessment considered only the benefit to the thirty acres, but included the whole tract in the assessment by inadvertence. It is contended in behalf of the relator that the council having decided that the assessment was illegal as to the larger portion of the land included therein, it was the duty of the court to cancel and annul the assessment, and that it had no power to send it back for correction.

This question also depends upon the provisions of the charter. Section 101 regulates the .review on certiorari of the legality of assessments for local improvements. The fifth subdivision of the section declares that if it is established in such proceeding that the assessment is illegal for any reason “ the court may order that said assessment be canceled, and the same shall, therefore, be canceled by the comptroller or other proper officer of the city,” and that “ when it is alleged or established that the said assessment is irregular or defective on account of any imperfect description of the land sought to be assessed, or any defect or irregularity which can be corrected without prejudice to any of the parties interested therein or affected thereby, the court may order the assessment roll so corrected or amended, or may order that the assessment roll be .returned to the common council to amend or correct it pursuant to law.” The illegality found by the court did not go to the jurisdiction of the assessors to assess the thirty acres abutting on the river included with the other property of the relator. The so-called illegality was at most an error in ■judgment on the part of the assessors including property of the relator in the assessment not benefited by the proposed improvement in connection with property belonging to the relator which was assessable. The absolute annullment and cancellation of the assessment by reason of this mistake would relieve the relator’s land' which was subject to assessment from bearing its proper share of the burden. This inequitable result is prevented by construing the inclusion in the assessment of non- assessable with assessable land asa defect, subject to correction under the fifth subdivision of section 101, and this construction should, we think, be given.

The court is authorized to send back an assessment roll, which is defective or irregular, to the common council to “amend or correct it pursuant to law.” The only authority of the common council on the subject of annulling or correcting an assessment roll is contained in section 154 of the charter, which relates to the ordinary jurisdiction of the common council on the hearing of objections in the first instance. The common council are to “hear the objections and confirm the roll or amend it, or refer it back to the board of assessors to make a new assessment,” and, by section 155, the board of assessors, on an assessment being sent back by the common council to make a new assessment, are required to “ forthwith proceed to make a new assessment in the same manner as is provided for original assessments.” We think these provisions by analogy regulate the action of the common council in case an assessment roll is returned by order of the court under section 101. It may annul the whole assessment, or send it back for a new assessment of the relator’s land. It does not appear what has been done, if anything, since the making of the order appeal from.

(3) The alleged irregularity in the resolution of the common council (subsequently rescinded) to let the contract for thé work at a gross sum (the aggregate of the itemized bid based upon the plans and specifications for the work) did not affect the validity of the assessment. The assessment is, under the charter, to precede the contract for the work. (Section 408.) The original resolution for letting the contract was rescinded, and a new contract was authorized for the work at a specified price per yard for rock and earth excavation in accordance with the bid.

(4) The opinion below contains an elaborate and able review of the question whether the land of the relator abutting on the river, although above the point where the improvement terminates, could be deemed benefited by the improvement. The rock in the bed of the river, below the relator’s lan^, prevented its navigation. Above the improvement along the relator’s water front on the river there was little if any rock, and at' a comparatively small expense the channel can be made navigable by dredging. It certainly cannot be said as matter of law that the removal of rock below the plaintiff’s land, which makes it possible for the extension of navigation of the river, at small expense, along the relator’s land, will not add to its value. We concur with the reasons of the court at special term on this question.

There are some minor points raised in the brief of relator’s counsel. We have examined them and are satisfied that they are without merit.

The order should be affirmed, with costs.

All concur. Order affirmed.