author: Haight, J.

text:
    Norman M. Allen, App’lt, v. Hiram F. Henry, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Principal and agent—Proof.
    The evidence considered and held sufficient to establish agency to procure discount of the note.
    Appeal from a judgment entered on a nonsuit, and from an order denying a motion for a new trial, made on the minutes of the court.

      William Henderson, for app’lt; Sherman S. Rogers, for resp’t.
   Haight, J.

This action was brought to recover the amount of two promissory notes,—one for $3,000, dated July 30, 1889, and the other for $1,000, dated September 25, 1889. Inasmuch as the allegations of the complaint and the evidence given upon the trial are substantially the same in reference to each note, we shall consider that only which pertains to the first note. The instrument is as follows:

“ Gowanba, July 30, 1889.

“ On demand, I promise to pay to F. Munson three thousand dollars, with interest, for value received.

“$3,000.00. H. F. Henry.”

The complaint, in substance, alleges in reference thereto that, at the time of the making of the note, Munson was the agent of the defendant, and had been such agent for some time theretofore, and continued to be such agent for some time thereafter, in the financial affairs and business of the defendant; that the defendant, at the time of making the note, desired Munson to procure for him the sum of $3,000, and to enable him to do so he made, executed , and delivered to Munson the note in question; that he delivered the note to Munson, who received it as such agent, for the purpose and with the authority to sell and transfer it to whosoever would pay him for it the sum of $3,000. The complaint further alleges that Munson on the same day did sell, transfer and assign the note to the banking firm of N. M. Allen & Son, who were co-partners, and doing business as bankers; that N. M. Allen & Son drew their draft for the sum of $3,000 upon the • Seaboard National Bank of New York, payable to the order of Munson, and delivered the same to him for such note, and Munson thereupon indorsed the said draft, and delivered it to the defendant, who subsequently indorsed the same, and drew the money thereon. The answer admits that from time to time, before and after the making of the note, Munson had been authorized to do and perform certain acts for the defendant, but denies that Munson was ever the general agent in the financial affairs of the defendant, or that he was the agent of the defendant in the transaction pertaining to the note. The answer alleges a counterclaim consisting of checks drawn by N. M. Allen & Son upon themselves amounting in the aggregate to the sum of $28,000. Upon the trial the making of the note was admitted, and evidence was given showing its assignment to N. M. Allen & Son, that it was paid for in the manner alleged in tbe complaint, and that tbe plaintiff has succeeded to the interest of N. M. Allen & Son.

The nonsuit appears to have been ordered upon the ground that the plaintiff had failed to establish that Munson was the agent of the defendant It is now contended that the court erred, and that the plaintiff was,entitled to judgment. If the allegations of the complaint, of agency, can be treated as surplusage, the plaintiff’s claim must be sustained. But this question we do not at this time determine. As to whether Munson was an agent, it appears that a former action had been tried between the parties, based upon the check set forth in the counterclaim, in which it appeared that the defendant transmitted money and drafts to Mun-son, to take and deposit the same with Allen & Son.; that he did so, procuring checks therefor, which he indorsed over to the defendant. And upon that trial he testified that he had consulted lawyers in reference to them, and was finally convinced that they were safe and certain, and then remarked: “ But I suppose that Mr. Munson, from the first to the last, was a middleman between us. He received my money, and sent it on.” It is claimed on behalf of the appellant that this admission shows that'the defendant regarded Munson as his agent, and that the note was transmitted to him in the same way that he had transmitted money and drafts for deposit. On behalf of the respondent, it is contended that the admission only had reference to the cheeks, and did not include the notes. But to our mind the transaction itself speaks louder than words. The facts are undisputed. The defendant drew the note, and delivered it to Munson. There is no pretense that Munson paid anything therefor. Munson took the note to N. M. Allen & Son, and transferred it to the firm by an assignment upon the back thereof. He did not in any manner indorse it so as to become liable thereon. N. M. Allen & Son drew their draft for the amount upon their correspondent in New York, and delivered it to Munson. Munson took the draft, and delivered it to the defendant, who drew the money thereon. The facts are very similar to those of Commercial Bank v. Cameron (recently considered by this court) 61 St. Rep. 402; 29 N. Y. Supp. 505, in which it was held that the person so procuring the money for another was an agent, or at least that the trial court would be justified in so finding. It does not appear to us that the letter from Munson to Henry, dated September 23, 1889, contradicts or impairs the inferences to be drawn from the facts alluded to. In this letter he makes a statement of the defendant’s account up to October 1st. In it he charges interest on $3,000 from July 30th, and on $1,000 from September 23rd, from which it is contended that the charge was made in his own behalf, as if he was the holder of the notes. But, if such is the purport of his letter, then why does he credit the defendant with three months’ interest on $28,000 and deduct the amount of interest accrued upon these notes therefrom ? The $28,000 was on deposit with N. M. Allen & Son. The defendant held the firm’s checks therefor, and why should Munson deduct the interest belonging to him upon the notes from interest that had accrued and was owing from Allen & Son ?

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

Dwight, P. J., and Lewis, J., concur; Bradley, J,, concurs in the result.


source: Caselaw Access Project

license: Public Domain

text:
    Theresa Maria Lund, App’lt, v. Masonic Association of Western New York, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

      1. Evidence—Opinion—Expert.
    A hospital nurse of twenty-one years’ experience, who attended surgical operations, is competent to testify for what disease an operation, which he attended, was performed.

      2. Same—Insurance.
    The physician’s certificate of death, filed hy the beneficiary with proofs of death, is an admission hy her as to the cause of the member’s death.
    Motion for a new trial on exceptions, ordered to be heard in the first instance at the general term.

      George W. Cothran, for pi’if;' Daniel H. McMillan, for def’t.
   Haight, J.

This action was brought upon two certificates issued by the defendant to Henning D. Lund in his lifetime, in which the defendant undertook to pay the plaintiff, as the wife of Lund, the sum of $2,000 upon the certificate issued in Class B, and the sum of $3,000 upon the certificate issued in Class C, upon satisfactory proofs of his death; payments to be made by the association by an assessment upon its members, levied in accordance with its by-laws. The certificates were dated June 23, 1890. Upon the trial it was conceded that an assessment under the first certificate would have realized the amount thereof, and that an assessment under the second certificate would have realized $1,734.90. Lund died at the Buffalo General Hospital, in the city of Buffalo, on the 11th day of May, 1891. The defense interposed was false and fraudulent statements of the assured in his application, by which the association was misled, and induced to issue to him certificates. In his application he stated: “I am correct and temperate in my habits, and, to the best pf my knowledge and-belief, have no injury or disease, constitutional or otherwise, that will tend to shorten my life. Am now in good health, and able to gain a livelihood ; and I promise, if accepted, to conform in all respects to the by-laws, rules, and regulations now in force, or which may hereafter be adopted by the association or its board of directors.” In answer to the question whether he had ever had stricture, he answered, “No.” To the question, “Haveyou ever had any serious personal injury, or undergone any surgical operation ? ” he answered : “Yes ; ” that he was shot in the knee, and the shell lodged there; that lie was in the hospital seven weeks, but that it does not trouble him now. The plaintiff, in her proofs of death, states that he “ had operation at hospital about three years ago. Was there one week. Had operation for something about his water. He was well when he went to the hospital, except what he told me was a rupture.” And in answer to the question of “What was the immediate cause of death ?” answered: “I think he died from the operation. Was at the hospital from Friday until Monday, the 11th of May.” As a part of the proofs of death, she furnished a certificate of the attending physician at the time of his death, who states that the deceased' was -afflicted with a chronic disease of the urinary organs; that on the 9th day of Ma_y, 1891, he “dilated an old cicatrix made about two years before in an external urethrotomy.- He became comatose, following convulsions, and died on the 11th. Post mortem showed extensive disease of the bladder, urethra, kidneys, and brain.”

Upon the trial the application was introduced in evidence by the defendant; and exception was entered by the plaintiff to its reception. We think that the evidence establishes that it was his application. Tiffany, the general agent and secretary of the defendant, identified the application as the one upon which the certificates were issued. Leonard, his clerk, testified that the application was filled out in his handwriting, and that he saw Lund sign his name thereto, but that he had never seen him but at that time, and had no knowledge that h'e was the Lund now in controversy. But Brown, the physician and surgeon who examined him for his insurance, testified that Lund brought the application to him with his name subscribed thereto, and that he added thereon his examination, and certified his approval thereto; thus conclusively identifying the individual and his application. Joseph Winters was sworn as a witness for the defendant, and testified that he resided in Buffalo, and had for .9-J-. years, and that during all 'of that time he had been connected with the Buffalo General Hospital as an attending orderly; that he attended the surgical operations on the men that were carried on there during that time, and that he had hospital experience in Germany for over 12 years before coming here; that in February, 1888, Henning D. Lund was a patient in the hospital, and was operated upon surgically by Dr. Park; thgt he was present at the operation ; that there was a suppurating abscess in the perineal section; that Dr. Park made three incisions, and cut the abscess and the urethra down to the bladder; that the incisions were made in the perineal region; that he had a talk with the patient, and he said that he was operated upon two years before in the old country ; that he prepared the patient for the operation, and that at that time Lund said to him he had an abscess and a stricture; that the patient subsequently left the hospital, and again returned in 1891, and was again operated upon for contraction or constriction of the urethra; and that in a few days thereafter he died at the hospital. Objections and exceptions were taken by the plaintiff to much of the evidence of this witness upon the ground that he was not competent to testify as an expert, But it will be observed most of his testimony pertains to what was done in his presence. It is true, he speaks of a suppurating abscess, and tells where it was located, but this any witness could describe as well as a physician. It does not require an expert to describe a boil or a wound, and tell where it was located, or whether suppuration had taken place. In the last operation he states it was for contraction or constriction of the urethra. It possibly may be said that this answer could have been made only by .an expert. We do not regard it as very material, for it has reference to the last operation, just preceding his death, and it does not necessarily tend to show that he had stricture or a surgical operation before the application for insurance was made. But, assuming it to be material, we are inclined to the view that a new trial ought not to be granted because of the admission of this evidence ; for we think that the witness’ experience of 12 years in Germany,, and 9£ in this country, as a nurse in the general hospital, in which he-attended upon the surgical operations performed upon the men in the hospital during that time, sufficiently qualified him to give the testimony objected to.

Again, it is contended that the proofs of death, including the physician’s certificate, ought not to have been received in evidence. But the plaintiff was of full age, acting for herself, and the proofs were such as were made out by her or by her direction, and forwarded to the association. No claim is made that any of the statements made in the proofs of death are false or incorrect, or that they were unauthorized. We think, therefore, that they must be regarded as her admissions, and competent as evidence against her. This question has been recently fully considered in the case of Buffalo Loan, Trust & Safe Deposit Co. v. Knight Templar & Masonic Mut. Aid Ass’n, 126 N. Y. 450-455; 38 St. Rep. 247, in which Andrews, X, in delivering the opinion of the court, says that: “The presentation of the physician’s certificate that the deceased died from the cause stated operated as an admission by the guardian that the fact was as stated. It derived its force from the fact that the claimant communicated to the defendant a statement of the cause of death which, if true, vitiated the policy. The statement was embodied in the physician’s certificate. If it had been contained in the guardian’s own statement, or that of any nonprofessional person, it would equally have been an admission of the fact stated. The certificate was a part of the proofs furnished.”

It is true in that case the court finally held that the beneficiary, being an infant, was not-bound by the admissions of its guardian, and for that reason the court sustained the recovery. But, as we. understand the case, it was distinctly held that, in case the beneficiary had been an adult, he would have been bound by the admission contained in the proofs of death.

e ’• The motion for a new trial should be denied, with costs, and judgment ordered for the defendant upon the verdict.

All concur.


text:
    Catharine B. Martineau, as Administratrix, etc., Resp’t, v. Rochester Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Municipal corporation—Ordinances
    An ordinance, authorizing the use of electricity as the motive power of street cars, was held not to supersede an existing ordinance relating to speed.
    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 minutes of the court.

      Charles J. Bissett, for app’lt; Thomas Baines, for resp’t.
   Haight, J.

This action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate. The deceased was an infant, about 2£ years of age. She had a sister, May, of the age of 5 years. On the day of the accident the mother had been out with the children, and had returned to her residence on North avenue, in the city of Rochester. While still upon the walk, the children saw their father coming home upon the same side of the street. May screamed out, “Papa is coming ! ” and asked if she could take Irene, and go and meet him. The mother gave her consent. In the meantime the father had crossed the street to a meat market, and the children, hand in hand, started to cross after him. They crossed to the opposite sidewalk, and started along the walk towards the meat market. The father purchased some meat, came out, started to recross the street, without seeing the children. The children, evidently seeing their father recrossing the street, started to return, and in doing so Irene was run over and killed by one of defendant’s electric cars. Some evidence was given tending to show that the car was running at a very-high rate of speed—from 12 to 15 miles per hour—and that the motorman did not sound the gong until the moment of the accident, from which it is contended that the motorman was not properly discharging his duty in the operation of the car by keeping it under control, and looking out for persons approaching. Our examination of the evidence leads to the conclusion that the question of the defendant’s negligence was for the jury.

As to the mother’s contributory negligence, there may be more doubt. The deceased was non sui juris, and was under the care of her mother. She was permitted to cross the street attended by her sister only, who was a child of but five years of age; but the mother tells us she looked before giving her consent, and saw no car approaching. There was nothing else in the street to harm the children. They were going to meet their father, with whom they would have been safe. Although the facts may present a case upon a border line, we are inclined to the view that the trial court properly refused to hold that the mother was guilty of contributory negligence as a matter of law, and correctly submitted the question to the jury.

Upon the trial the plaintiff introduced in evidence an ordinance of the cornmon council of the city of Rochester, passed March 9, 1887. Section 4 provides as follows: “ The cars ;to be used on such railroad shall be drawn by horses or rnules ¡only, at a speed not exceeding the rate of seven miles per hou.r, and shall run, as often as once in every fifteen minutes between .the hours -of ¡six o’clock in the morning..and twelve o’clock ¡midnight,” .etc.

The ordinance contains numerous other provisions ,in reference to the operating of the street surface railroads in the city, which are not necessary to be here considered. An exception was taken by the appellant to the reception of this evidence. It is .contended on the part of the respondent that this ordinance is still in force, so far as the provision relating to speed is concerned; while on behalf of the appellant it is claimed to have been repealed by implication, or superseded. It appears from the proceedings of the council for the years 1889 and 1890 that an ordinance was passed giving the defendant-the right to establish, construct, maintain, operate, and use the overhead trolly electric system of motive power in the operation of its cars in and on all of the streets, avenues, and -public places in the city of Rochester along, through, and upon which the company lias constructed and is maintaining and operating a street surface railroad. The ordinance contains numerous provisions pertaining to the operation of tbe system,'among which we find the following: “It is further resolved that before this grant and consent shall become operative tbe said company shall deliver to and leave with said committee a written agreement to the city to accept, and in each and every thing and particular comply with each and all tlie provisions contained in these resolutions, and to well and truly at any and all times hereafter indemnify and protect the city of Rochester in tbe particulars and maguer specified in these resolutions, and to well and truly at all times comply with all the .ordinances and resolutions of the common council of said city not in conflict herewith which have been at any time heretofore or may at any time hereafter be proposed relating to the rate of speed, manner of running cars, general government or use of tracks, removal of ice, snow or dirt, and the general repairs of the street within and for two feet outside of and adjoining said company’s trade or tracks.”

In our examination of the new ordinance we find nothing that is in conflict with the provisions of the earlier ordinance relating to the speed at which cars should be run, and we think that it was not intended that the new ordinance should affect the provisipu of the old ordinance in this regard; for here, in the provision to which we have referred, we find certain things enumerated, such as the rate of speed, the manner of running cars, general government or use of tracks, the removal of ice, snow, or dirt, etc., as to which the company is required to agree with the city that it will at all times comply with the ordinances in reference, thereto “ which have been at any time heretofore or may at any time hereafter be passed.” We are aware that tbe earlier ordinance provides that tbe cars shall be drawn by horses or mules at a speed not exceeding tbe rate of seven miles per hour; and it is claimed on behalf of the appellant that the new ordinance permitting them to substitute the trolly motive power in place of horses and mules supersedes this provision of the old ordinance, including the rate of speed, but we do not so construe the provisions. The trolley motive power was permitted to be substituted in place' of the horses or mules. The speed at which the cars were to be moved was not changed or affected. We have examined the other exceptions appearing in the case, but find none which we think requires a new trial. The judgment and order appealed from should be affirmed.

, All concur.


author: Bradley, J.

text:
    German-American Bank of Tonawanda, Resp’t, v. P. W. Scribner Lumber Company et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Chattel mortgage—Payment.
    While an attachment action, involving the title to the mortgaged property is pending, a sale thereof hy the agent of the mortgagee, does not operate as a payment of the mortgage deht.
    Appeal from a judgment entered on a verdict directed in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions, and on the ground of newly discovered evidence.

      W. B. Simson, for app’lts; Tracy 0. Becker, for resp’t.
   Bradley, J.

On October 30, 1891, the plaintiff held thirteen notes of the defendant' corporation, amounting to $18,300. A like number of its notes, amounting to $24,783.44, were held by the Lumber Exchange Bank of North Tonawanda. Twelve of its notes, amounting to $9,517.62, were held by the State Bank of Tonawanda, and George E. Rand held two of its notes, amounting to $4,000. To secure the payment of those notes, and any renewals thereof, the defendant, on that day, made to those holders of its notes a chattel mortgage, in the usual form, upon upward of' 5,000,000 feet of lumber. The promissory notes in question were made in renewal of those mentioned in the mortgage as held by the plaintiff. In December, 1891, all the mortgagees except the State Bank, joined in a power of attorney to Benjamin L. Rand, to do whatever was requisite to enforce the mortgage, aud conduct all actions and proceedings necessary to accomplish the purpose in view. In actions brought by creditors of defendant Scribner for alleged claims amounting to $59,000, attachments had - been issued to the sheriff, and by him levied upon the lumber. After the power of attorney was delivered to Rand, an action was' brought in the name of the mortgagees against the sheriff to recover the possession' of the Inmber, founding their alleged title on the mortgage; and, the requisite bond being given, the property was delivered to the plaintiffs, and the possession of it was taken by Rand in their behalf, and he sold sufficient of if to produce $56,000, which he deposited in the State Bank to his credit, as trustee; and, by his checks as trustee, he transferred $12,000 to the plaintiff bank, and took, as trustee, its certificate of deposit by which the bank promised to pay interest at the rate of four per cent, per annum if left there three months.

On the part of the defendants it is insisted that the taking possession of the lumber a,nd selling it by the plaintiff’s agent operated as payment of the notes. Such is the apparent effect of the transaction, and it must be so treated unless there is some special reason why the plaintiff was not required to make the application on the notes. Case v. Boughton, 11 Wend. 106; Charter v. Stevens, 3 Denio, 33. At the time of the trial, the action brought against the sheriff had not been determined in favor of the plaintiffs therein. The question then was at least an open one whether they would succeed in supporting title under the mortgage. It is true that the mortgagor was not a party to that action, and therefore might not be concluded by its result, nor was he a party to the attachment actions. But in the former, as between the parties to it, the ques-' tion whether, as against the attaching creditors, the title, when the mortgage was made, was in the mortgagor or in Scribner, could be determined; and, if the final determination should be that the plaintiff and its associates took no title by the mortgage, none of them would have received payment of their notes from the mortgaged property, although they had sought to do so by means of their action in replevin. The defendant corporation could not, although not bound by the determination, effectually, for that reason, assert in such event payment of the plaintiffs claim, founded upon the taking and sale of the property. By virtue of the attachment levies, the sheriff *had taken it from the mortgagor, and had the custody of it. The action against the sheriff is, in effect, an attempt to follow the property taken from the mortgagor: and whether the mortgagees will succeed in reclaiming it will depend upon the result of their action. Unless they do recover in their contest with the sheriff for the possession of the property, the lumber company cannot charge them for the property or its proceeds. When .their action was instituted by Band, he procured sureties for the undertaking upon which the property was delivered to the plaintiffs in the action ; and it was then understood that he would take charge of the property and the proceeds to await the determination of the suit. In that view, he, with the assent of the plaintiffs in it, assumed the relation of trustee to hold the proceeds of the sale during the pendency of that litigation, and to dispose of them as the result of it should require. At all events, that conclusion is warranted by the evidence. If the sheriff should recover, the plaintiffs in that action would have to account to him for the property. It seems clear that in the meantime the plaintiff is not required to apply-the proceeds of the property upon the debt in question, and therefore there is no legal objection to the maintenance of this action.

There were exceptions taken to evidence relating to some of the proceedings in the action against the sheriff. They could properly be proved only by the records or papers in the action, if the question were raised by objection. But the facts that the actions were-brought by the creditors of Scribner, in which attachments were is,sued.' to and levied by the sheriff upon the property, and that the action was brought against him by the mortgagees, and its nature and purpose were proved without objection requiring the production of the papers or records; and, when the pendency of the latter action appeared, relief from it by a result favorable to the plaintiff became essential to require it to apply the proceeds of the property upon the notes. The evidence relating to the trial and verdict added to the facts, as they then appeared, nothing prejudicial to the defendant, and therefore the defendants were not in any manner prejudiced by the error of its reception. It may have been in view of the pendency of the replevin action that the defendants made and indorsed or guaranteed the notes mentioned in the complaint in renewal of those mentioned in the mortgage after that action had been commenced and the property taken into the possession of the plaintiffs in it, as before mentioned. While any judgment in that action may not preclude the lumber company from asserting title to the property, and, as against it, may constitute no evidence in that respect, the liability of the plaintiff to be charged by that company with the property or its proceeds is dependent upon the right of the mortgagees to take and retain the property, as they have sought to do by their action. It is sufficient for-the purposes of the present action that such right, at the time of the trial, was in litigation and undetermined. There were no errors in the rulings at the trial to the prejudice of the defendants ; and as the direction of a verdict was requested by each of the parties, and no request by the defendants for the submission of any question to the jury, there was no error in the direction given by the court, as there was evidence to support a verdict for the plaintiff. Kirtz v. Peck, 113 N. Y. 222; 22 St. Rep. 733. No other question arising upon the appeal from the order denying motion for a new trial requires consideration. The judgment and order should be affirmed. All concur.


author: Bradley, J.—The

text:
    George D. Woodward et al., Resp’ts, v. Herman E. Remmington, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Evidence—Documentary—Books of account.
    Vendor’s books of account and tbe fact that statements were sent to defendant, áre admissible to show that goods, delivered to a third person, were sold oii defendant’s credit.

      % Appeal—Harmless error.
    Permitting a witness to express an opinion as to a question which it is the province Of the referee to determine, is harmless error,- if it does not affect the result.
    Appeal from a judgmént ini favor of-plaintiffs.

      Carey D. Davie, for app’lt; Hudson Anslei/, for resp’.ts.
   Bradley, J.—The

action was brought to recover for goods delivered by the plaintiffs at their store at Red House, in the county óf Oattaráugus, to Frank Phillips, ánú alleged to have been sold to the defendant. There is no controversy about the fact that the goods were furnished to Phillips, but the facts upon which the plaintiffs seek to charge the defendant with liability to pay for them are controverted. The goods in question were furnished to Phillips after he had undertaken to perform a job of work for the defendant. And the evidence on the part of the plaintiffs' is to the effect that defendant called at plaintiffs’ store, ánd there, in an interview with one of them, said that Phillips was jobbing for him, and requested them to let him have what goods he wanted, and he (defendant) would pay for them at the end of each month, and requested that monthly statements be sent to him. The defendant, by his testimony, denies that' he gave any such order or made such promise or request. The question was •one of fact for the referee, and his finding in that respect is supported by evidence. The plaintiffs’ clerk who kept the books and entered the account produced the books, and one page of the ledged was offered in evidence to show that the account was charged to the defendant. This was received after objection, and exception taken. The same witness, after testifying that he mailed to the defendant statements of the account, was asked how those statements were made out, and, after exception taken to the reception of the evidence, he answered that they were made out'to the defendant. After the evidence tending to prove that the plaintiffs were authorized to furnish goods to Phillips upon the credit of the defendant, it was competent for them to prove that they did so, and this might be made to appear by the fact that the account as entered was debited to him, and that the statement were made out in like manner. The defendant testified that he never received or had any such statements, so that a notice to him to produce them would have been futile. The evidence of the book and statements was not offered to prove the account, but only to show that it was opened upon the credit of the defendant. In that view the evidence was competent, and there was no error in its reception. The plaintiff who testified that the •defendant requested them to furnish goods to Phillips, as before mentioned, was asked whether the goods were furnished to Phillips by reason of that conversation, and, after exception was taken to the ruling permitting it, the witness answered in the affirmative. This was a question for the referee to determine upon the facts, and was not properly a subject for the expression by the witness' of his conclusion. Merritt v. Briggs, 57 N. Y. 651; Pope v. Mc Gill, 58 Hun, 294; 34 St. Rep. 281. But the defendant could have beer! prejudiced by that evidence. If the referee believed the evidence on the part of the plaintiffs that the request and promise of the defendant were made as their witnesses testified, in view •of the fact that the account was entered in the book as upon the order of the défendant, the conclusion would necessarily follow that the goods were furnished pursuant to such request and promise. The referee did treat the fact as truly represented by that evidence, and found accordingly. There seems to háve been no error in the rulings at the trial to the prejudice of the defendant.

The judgment should be affirmed. All concur.


text:
    Frederick Dieboldt, Resp’t, v. United States Baking Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Master and servant—Unguarded elevator shaft.
    A recovery by an employe, who fell down an elevator shaft which was not protected in accordance with the requirements of chap. 462 of 1887, was held to be barred by his 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, made on the minutes of the court.

      0. /S. Grosser, for app’lt; Wallace Thayer, for resp’t.
   Bradley, J.

The action was brought to recover damages for personal injuries of the plaintiff alleged to have been occasioned by the negligence of the defendant. The plaintiff had for some months been in the service of the defendant at the time of his injury, which occurred on June 11, 1892.- He was then 17 years of age. At the commencement of the week ending with that day he had been put into the service of operating the elevator, which then was run between the basement and fifth floor of the building, with directions not to leave it. On that day, on coming down on the elevator from above, the plaintiff, at. about 5:30 p. m., stopped at the fourth floor, left it to get his lunch basket, which was ip the front room there, and on his return to take the elevator, supposing it remained there, he stepped into the shaft, and fell 33 feet onto the elevator as it was proceeding down, and received the injury complained of. In his absence from it, and without his knowledge, the defendant’s engineer had taken the elevator, and was on his way down with it when plaintiff stepped into the shaft. The alleged negligence of the defendant is founded upon the statute which provides that: “It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well holes are used, to cause the same to be properly and substantially enclosed or secured, if in the opinion of the inspector it is necessary to protect the life or limbs of those employed in such establishments. It shall also be the duty of the owner, agent or lessee to provide or cause to be provided such proper trap or automatic doors, so fastened in or at all elevator wells as to form a substantial surface when closed, and so constructed as to open and close by action of the elevator in its passage, either ascending or descending.” Laws 1886, c. 409 § 8, as amended by Laws 1887, c. 462, § 2.

At the fourth floor there were folding or double doors into the shaft on the north and south sides of it, which could be pushed open from the inside and pulled together and shut on entering it. This constituted the method provided for inclosing the shaft at this and the other floors. It does not appear that the attention of the factory inspector had been called to this elevator shaft, although the establishment had been in operation a long time, and its employes exceeded 100 in number. There would ordinarily be no danger from tbe outside if the doors in the shaft were kept closed. But the protection contemplated by the statute was not provided by the defendant, and, if automatic doors there referred to had been furnished, the accident in question would have been prevented. This is not held to be an absolute duty. But when the case was here for review on a former trial it was held that- the omission to provide better protection against danger and accident was evidence of negligence on the part of the defendant for' the consideration of the jury. Dieboldt v. U. S. Baking Co., 72 Hun, 403; 55 St. Rep. 285. The statute is a public one, of which judicial notice will be taken, and therefore it is properly presented and considered as evidencó, although not specifically alleged in the complaint. The main question, therefore, for consideration is whether the fact that the plaintiff was free from contributory negligence wms fairly established by the evidence. He was well informed of the situation. He knew that any person getting on the elevator could operate it. When he opened the doors of the shaft and went after his lunch basket, the plaintiff intended to return, and proceed down on the elevator. He says that his basket was only about 10 feet away from the shaft, and that the time he occupied in getting his basket and returning to the shaft was only one minute. In this he was contradicted by the testimony of other witnesses to the effect that he remained on the floor five or ten minutes. .But upon his evidence it is assumed that the jury were permitted to find that he'went directly to his lunch basket, and in about the time mentioned by him returned with it to take the elevator. The engineer who had taken it says he entered the front door of the shaft. The evidence on the part of the plaintiff tends to prove that he did not do so. There was another door on the other or south side, where he could have entered.

The plaintiff, on this review, is entitled to.the benefit of the fact, which the evidence on his part tended to prove, that the engineer entered the south door of the shaft. He evidently did not see the engineer enter the shaft, and when he went to take the elevator he supposed it remained where he had left it. and by that belief was governed his action which resulted in his fall. He says that when near the shaft he looked to see if the elevator was there, and saw nothing there. He certainly could not see the elevator. It had been taken away. He testified that he came within a foot and a half of the elevator with his face towards it, looked into it, but could see nothing; that he then turned around, said “ Good night ” to Sophia Luce, backed into the elevator, took hold of the doors to shut them, and fell down the shaft. He admits that the room was light, but that the light did not shine so that he could see into the elevator. His testimony that there were no windows open in the shaft above the fifth floor, although contradicted by that of several witnesses, will here be treated as the fact. But' his evidence to the effect that it could not be seen whether the elevator was at the fourth floor with the doors open at the time he entered there to take it, and fell, is decidedly against the weight of the evidence. That was a front room. It had, to furnish light, 15 windows on the north; east; and west sides. It also had two skylights of surface dimensions of 16 by 21 feet each. The corner of one of the skylights was aboüt 7 feet from the elevator, and that of the other about 12 feet from it. The elevator was at the south side of the room, and the doors of the shaft were on the north side of it, and were 5£ feet wide and 7£ feet high. The day, at the time in question, was clear and bright. There is no structure over the front room of the fourth floor to obscure the effect of the skylights. In view of the situation it would seem that at the time in question the light entering the room was such 'with the frontdoors of the shaft open to enable one to see whether or not the elevator, about 8 feet square, was at that floor. And such is the effect of the evidence of all of the several witnesses who testified on the subject other than the plaintiff. He says the doors, when he approached the shaft, were open only 1 foot and 6 inches. While that opening admitted less light than would have been received through a wider opening of the doors, the evidence on the part of the defendant is that it was light inside the shaft there with the doors open only eighteen inches, and this was somewhat shown by photographic illustrations with light entering the shaft only from this front room of the fourth floor. The plaintiff says when he came down to the fourth floor on the occasion, and before he left the elevator, he looked at his watch, and saw that it lacked seven minutes to 5.30 P. M. The conclusion is fairly required by the weight of the evidence that if the plaintiff had taken reasonable observation before he entered the shaft he would have seen that the elevator was not there; but supposing that it was where he had left it shortly before, he assumed that it remained there. He had some reason to think so, as he had seen no one go into the shaft. The question, therefore, is whether the plaintiff, under the circumstances, without any imputation of negligence on his part, was permitted rely solely upon his belief that the elevator then remained at the fourth floor. It was then after quitting time for the employes operating the machinery, and it appears that the engineer had on some occasions, after such time, taken the elevator from the upper floors where it had been left, during the week while the plaintiff had been running it. The fact that the movement of the elevator from where he left it was not necessarily dependent upon him furnished a reason for him to use some care to ascertain if he eould safely step into the shaft before he did so. By swinging open the doors and looking he would have seen thát the elevator was gone. If his app'roaoh or entrance at the door's, only partially open, so obscured the light in the shaft as to render it difficult to see the situation there, that was a reason for opening them wider if he desired to see whether it was safe to proceed. This he did hot do, although líe says he looked in to see whether the elevator was there or not, and without séeing whether or not it remained there, he backed into the shaft, as before mentioned. This was not reasonably precautious for his own protection. He was familiar with the situation, and well advised of the dahger to result from stepping into the shaft without having th'e support of the elevator. The situation in 'the present case is distinguishable from that of McRickard v. Flint, 114 N. Y. 222; 23 St. Rep. 100, in the fact that there the plaintiff had no knowledge of the hatchway which was within one step of the threshold of the open door which he entered. In the case at bar the opportunity for some one else to take away the elevator was some reason for the plaintiff to see that it had not been done before he entered the shaft.

"VVe think the verdict was against the weight of evidence, and for that reason the judgment and order should be reversed, and a new trial granted, costs to abide the event.

All concur.-


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    Cleon Stone, Resp’t, v. Town of Poland, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Evidence—Negligence—Change in place.
    In an action for personal injuries, the admission of evidence of a change in the condition of the locus in quo is not error, where it appeared incidently in showing the condition at the time of the accident.
    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 a case and exceptions.

      Frank W. Stevens, for app’lt; A. 0. Wade, for resp’t.
   Bradley, J.

On May 22, 1887, the plaintiff was driving a horse and carriage, in which he was riding on a highway in the town of Poland, county of Chautauqua, and, having crossed the bridge over Conewango creek, he, with the horse and carriage, was suddenly precipitated over and down the easterly side of the embankment, which constituted the northerly approach of the bridge, and was injured. He charges that his injury was occasioned solely by the negligence of the officers of the defendant charged with the duty to keep the highways within it in repair; and to support the charge evidence on his part is given tending to prove that there was a hole in the highway at that place, which caused the accident, and that it had been there a length of time sufficient to charge the commissioner of highways with notice of it. The evidence was such as to warrant the imputation of notice to the commissioner of the existence of the hole in the highway there. The main matters of controversy on the trial were whether at the time in question there was any material defect in the highway at that place, and, if there was, whether it caused the plaintiff’s misfortune and injury. The width of the inside of the bridge was twelve feet. The width of the northerly approach was ten feet on top, with rounding slope of about one foot on either side, below which was an abrupt, steep descent of about nine feet near the bridge and for some distance from it. At the outer edge of the easterly track was a hole, variously estimated in length, width and depth. The plaintiff testified that his horse, in passing from the bridge, was scared, sprang to the right, stepped into the hole, and was thrown over and down the embankment, taking the buggy, with the plaintiff in it, down also. His evidence is to the effect that the stepping into the hole caused the horse to stumble, with the result before mentioned. Whether or not the horse stepped into, the hole was an important question of fact on the trial, as the court held that if an injury was occasioned by any Other cause the plaintiff could not recover, and so charged the jury. No person other than the plaintiff was present at the time of the accident. But such question was on the part of the defendant forcibly contested ly evidence of facts and circumstances bearing upon it. There had been that day erected on the Westerly side of the approach, below and near to it, a boat house. For this the commissioner was in no way responsible. The horse was young and active, and the inference is permitted that it took fright on seeing this structure, and suddenly sheered to the right. There is evidence tending to prove, by reference to marks made by wheels of the buggy upon the side of the bridge, occasioned by the horse so springing to the right on passing it, that the horse was not at the time of going over the bank far enough advanced in the highway from the bridge to step into the hole, in view of the distance of it from the end of the bridge. There was, however, some conflict in the evidence as to the distance the hole was from the planking of the bridge, and there were some circumstances arising from the testimony of witnesses who first saw and talked with the plaintiff at the place of the injury, to the effect 'that he then said nothing about the hole. It also appears that some blocks of wood had been put into it; and its condition at the time of the accident was matter of controversy in so far that evidence was- given to the effect that the hole was by that means then substantially filled up even with the surface, or nearly so, while that was controverted by evidence tending to prove that the hole was open to the depth of eight inches. The horse in some manner went or fell over and down the bank. The cause of it was, upon the evideuce, a question for the jury. They saw the witnesses, and heard them testify; and the credit to which the testimony of the plaintiff was entitled was, in view of all the evidence and circumstances, for the jury to determine. The question whether the calamity was occasioned without any fault on his part was also for them to consider. He testified that he drove the horse on a walk over the bridge, and sought to keep it under his control by the use of the lines. This was disputed by evidence to the effect that the horse crossed the bridge at a rapid trotting gait. So far as that'question was essentially matter for consideration, it may be deemed to have been disposed of by the jury. The case was fairly submitted to them, with proper instructions by the court, and we see no occasion- to interfere' with the conclusion of the jury upon the questions of fact.

Shortly after the accident the approach at the place in question was covered with plank, and afterwards, in April, 1888, a witness, who had observed the hole shortly after the accident and the day of its occurrence, went there with an engineer, who was also a witness, took up some of the plank and examined the hole. He was asked to state its condition, to which the defendant’s counsel objected. The plaintiff’s counsel stated that he expected to prove that the hole-was then in the same condition' it was at the time' in -question. The court, holding that the evidence was admissible only to identify the condition of it when the accident occurred, overruled the objection, and exception was- taken. The witness testified that it was just the same, with the exception that one chunk more had been put into it, and that the surface of the approach was the samé as it then was, that planks were taken up to make measurements, and that he pointed out the hole to the person with him who-made measurements. 'In support of the exception is urged the rule which excludes the fact that changes have been made in conditions existing at the time of an-injury and to which' it is attributed. Dale v. D., L. & W. R. R. Co., 73 N. Y. 468; Corcoran v. Village of Peekskill, 108 id. 151; 13 St. Rep. 105. But in the present case the changed situation about a year after the accident only incidentally appeared in the evidence hy which the plaintiff sought to establish by proof the condition of its locus in quo at the time of its occurrence. It was in that view, and for such purpose, that the evidence was received. There was no error in the ruling. This question had some consideration on the review of a former trial of this action. Stone v. Town of Poland, 58 Hun, 21; 33 St. Rep. 437.

As bearing upon the question of damages, a witness was asked, “ What is the value of ordinary farm labor of a young man twenty-one years of age, by the year, in the town of Poland and vicinity ? ” The defendant’s objection was overruled, and exception taken. The answer given was $350, followed by further proof that the value of the services of the plaintiff as such laborer is $50 per year. This evidence was evidently intended to relate only to the time since August 11, 1890, when the plaintiff arrived at the age of 2Í years, which was only nine months before the trial, and to prove the extent his ability to labor was as of' such period impaired by his injury in question. It was competent to prove the fact, although the action was commenced more than two years before the trial. Cuming v. Brooklyn City Railroad Co, 109 N. Y. 95; 14 St. Rep. 788. It appeared that his occupation wras that of working on a farm. The general inquiry made may not have been strictly proper, as it should have been confined to the value his services on a farm would have been if he had not been injured, but, as no objection on that ground was specifically made, and may have been obviated if it had been, the exception was not well taken. There was no error in any ruling on the trial to the prejudice of the defendant. The judgment and order should be affirmed.

All concur.


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    Sophia A. Miller et al., as Administrators, etc., Resp’ts, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Negligence—Contributory.
    Where the person injured at a railroad crossing was guilty of contributory negligence, no recovery can be had, though no signal was given by the approaching train.
    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 tbe minutes of tbe court.

      Charles A. Pooley, for app’lt; M M. & F. M. Ashley, for resp’ts.
   Bradley, J.

The death of the plaintiffs’ intestate occurred at a highway crossing of the Rome, Watertown & Ogdensburgh Railroad, operated by the defendant, in June, 1892. He was riding in a wagon drawn by a pair of horses driven by him going east upon what is known as the “ Braley Road,” which crosses at right angles a highway known as the “Randolph Road,” in the town of Wilson, county of Niagara. His team went upon the track of the railroad, which crosses the intersection of the two roads in a northeasterly and southwesterly direction. His wagon was struck, and he was killed, by a train from the southwest. The accident took place about 6 o’clock in the afternoon, and the plaintiffs allege that it was occasioned solely by the negligence of the defendant. It appears that at a point 335 feet west of the crossing a willow hedge extended from the Braley road south to the railroad right of way, and on a line at the centre of the track 490 feet from the crossing, and that along east of the hedge was an orchard. The situation was then such that on passing the hedge going east on the Braley road the view of a train approaching from the southwest was shut off by it and the trees for some distance, so that when a point 95 feet from the centre of the crossing was reached an object on the track could be seen at the distance of only 497 feet, increasing to 665 feet when 77 feet from the crossing and to upwards of a mile when 63 feet from it. The train was running fast. The ringing post was 1,467 feet from the crossing. The train passed that without ringing the bell or blowing the whistle. The whistle, however, was sounded 500 or 600 feet from the crossing, described by witnesses as two short, sharp toots. No other signal of the approaching train was given. In view of the situation and circumstances, the conclusion was warranted that it was inadequate, and that by the omission to give a more suitable signal to warn persons on the highway leading to the crossing, of the approach of the train, the defendant was chargeable with negligence. But from that fact alone no inference arises that the deceased was free from contributory negligence, and to support the action the plaintiffs have the affirmative of that question, and the burden of showing that his negligence did not contribute to the calamity. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493. If, therefore, by the exercise of reasonable care he would have avoided the' collision and its consequences, the plaintiffs were not entitled to recover. What is reasonable care is dependent upon the circumstances as they existed at the time in question. When a person is suddenly placed in a position of danger by the negligence of another, which compels him to act suddenly to extricate himself, he may not be chargeable with negligence if he fails to avail himself of the very best means to accomplish it, and in consequence suffers an injury. Twomley v. C. P., etc., Railroad Co., 69 N. Y. 158; Dyer v. Erie Railway Co., 71 N. Y. 228; Salter v. Utica & B. R. Railroad Co., 88 N. Y. 42, It is urged on the part of the plaintiffs that the emergency when the approaching train came within the view of the intestate was such as to relieve him from the imputation of negligence. The facts are that when he had passed the willow hedge his horses proceeded on a trot, and when about 77 feet from the crossing the offside horse pranced, and as some of the evidence tended to prove, lunged ahead, while the other horse continued to trot. It quite satisfactorily appears from the evidence that when ’ that point in the highway was reached the train was in view, and the horses may have seen it before the deceased could, as he was about 17 feet in the rear of their-heads. But in a moment later it must have been seen by him if he looked in the direction from which it was approaching. There was then, so far as appears, up to the time the horses went upon 'the track, ample room to turn his team around, or to turn to the left into the Randall road on the west side of the railroad; and it is difficult to see why he did not do so, unless he failed to observe the train, or concluded that he could cross the track ahead of it. If, however, his horses became unmanageable,- or he lost control of them, and they in consequence, entered upon the track at the crossing against his will, he would not be responsible for it. Cosgrove v. N. Y. C. & H. R. Railroad Co., 87 N. Y. 88. It is urged by the plaintiffs’ counsel that the jury were permitted by the evidence to so find the fact. The court charged the jury that if Miller’s horses became unmanageable, and carried him upon the railroad track in spite of his efforts to prevent it, then the plaintiffs might recover if they also found that the defendant was negligent. The defendant’s counsel excepted. The evidence does not fairly justify such inference. It does not appear by the testimony of those who saw the deceased approaching the track that he made any attempt to turn his horses from it, and none of the witnesses were able to say that the team was beyond his control. The witnesses say that he* sat straight up in the wagon, looking ahead, holding the lines in his hands. One of the plaintiffs’ witnesses, who first saw the team when it was about 25 feet from the track, testified that the horses did not appear to be out of the control of the deceased; that one of them was then trotting. And another of them testified that Miller did not indicate by his actions any purpose to turn into the Randall road, although there was no reason why a person driving east on the Braley road could not have turned into it before getting to the railroad track. The view taken of the evidence is' that i't does not support the propositions so submitted to the jury, and that the exception was well taken. The fact that the train was in view of the plaintiffs’ intestate, or may have been seen by him, from the time lie was about four rods from the crossing, with ample room to turn from the track if he had chosen so to do, makes it appear that he may have misjudged the speed of the train, and thought he.could cross the track ahead of it. In view of the distance he was from the track when the train came in his view, and of the opportunity he had of avoiding the crossing by turning to the left, it does not seem.that the exigency was such as to excuse his going on the track in front of the train. The judgment and order should be reversed, and a new trial granted ; gosts to abide the event.

All concur.


text:
    Mary Carr, as Administratrix, etc., Resp’t, v. Michael Sheehan et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Nbg-ligence—Contributory.
    Plaintiff’s intestate, wlio was injured by the caving in of a sand bank, from which he was taking sand, was held to be guilty of contributory negligence, where he had had much experience in such work and knew the condition of the bank.
    Appeal from a judgment entered on- the verdict, and from an-order denying a motion for a new trial.

      George W. Hall, for app’lts; C. D. Kiéhel, for resp’t.
   Haight, J.

This action was brought to recover damages for a personal injury sustained by the plaintiff’s intestate. The suit was originally brought by him, but he died after the rendition of the verdict. It appears that the defendants were the owners of a sand bank near the village of Brighton, N. Y., and were engaged in selling sand therefrom by the load. On the 3d day of August, 1892, Carr.went to the defendants’ sand bank, and got a load of sand. On the same day he returned for a second load, and while engaged in shoveling the sand into his wagon the bank caved in, covering his legs with sand, up to his body, causing the injury for which damages -are sought to be recovered.

Upon the question of the defendants’ negligence, there is some conflict in the evidence, which doubtless raised a question for the jury upon that branch of the case. Carr testified that when he went back for the second load he stated- to the defendant Michael Sheehan that he wanted some coarse sand, that the other was too fine,, and that Sheehan said: “Drive around here,’ where the sand lay in the bank. ‘Keep out this way, off the sand, so that you can take sand clean from the bottom without running over it and trampling it down.’ And when I got where he wanted me he said, ‘Whoa,’ and the team stopped. I then jumped out, and commenced to shovel as fast as I could. I drovQ in between the sand bank and dirt. It was dug down a little below the top of the soil, and I drove pretty close to that; I should think, 12 or 13 feet from the bank.” He further testified that the first thing he knew the bank came down from the top, and knocked him back against the wagon. The defendant Michael Sheehan testified that he saw the plaintiff on the day of the accident, when he came after this load of sand, and told him “the bank was dangerous up in the place where he was; to get out; and he said, ‘No,’ he would stay there. And I said, ‘You want to get down. It is dangerous, and may happen to fall down.’ He turned his horses a little out from there, and I told him that would not do ; to get out; and he said ‘No,’ he was not going to move out, for me or anybody else ; he would stay there.” Two other persons were present, who corroborate the defendant as to his warning that the bank was dangerous. The defendant further denies that he told the plaintiff to stop his team at that place. Carr admits that at the time he went for the first load the defendant said something, but he does not recollect what it was. He, however, denies that at the time he went for the second load anything was said to him in reference to the bank being dangerous. If the defendant knew that the bank was dangerous, it was doubtless his duty to warn Carr, and as to whether he did so was a question of fact for the jury.

Upon the question of Carr’s contributory negligence, we have more trouble. He testified that he had been in the habit of drawing sand from sand banks for years, and had seen banks cave in at previous times when he had been drawing sand. He therefore knew of the liability of banks of that character to cave. He further testified that the bank was nearly perpendicular, and that at the top there was a little projection. Speaking in reference to the first time he was there, he said the bank was straight up and down, but he did not see any reason to apprehend danger; but when he returned he says, “I did when I came back for the second load.” And, in answer to the question as to whether the bank was in the same condition when he went in for the second load, he replied, “ It was worse ; ” that he noticed that the bank was overhanging more before he went underneath it, but, notwithstanding, he went under where the bank hung over; that the bank overhung more because the defendant had knocked down the sand before he went in; and he observed that fact, and concludes by saying, “ I saw it was not safe.” It thus' appears that he knew the condition of the bank, knew that it was liable to cave in, and yet he went to work loading his wagon under these circumstances. We are inclined to the view that he assumed the risk and took the chances, vand was therefore guilty of contributory negligence. It does not •’appear that the defendants knew anything more about the bank than he. It was before his eyes. He could see its height, that it was perpendicular, and that it was composed of sand. He was familiar with sand banks, and had for years worked in drawing sand therefrom; had seen them cave, and on this occasion knew that the bank was not safe. In Marsh v. Chickering, 101 N. Y. 396-399, it was said: “ Where a servant has equal knowledge with the master as to the machinery in use or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof. ”

In 2 Thomp. Neg. 1009, it is said: “The master is under no higher duty to provide for the safety of a servant than the servant is to provide for his own safety. It follows that if the knowledge or the ignorance of the master and that of the servant in respect to the character of the machinery are equal, so that both are either without fault or in equal fault, the servant cannot recover damages of the master.

The relation of master and servant did not exist between Carr and the defendants, but he appears to have had equal knowledge with them in reference to the condition of the bank, and is consequently not in a condition to charge negligence upon them, and at the same time excuse himself. It follows that the defendants’ motion to dismiss the complaint should have been granted. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Lewis, J.

text:
    James J. Quinn, App’lt, v. Royal Insurance Company, Resp’t

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Insurance—Limitation.
    Section 899 of the Code does not apply to a clause of a policy limiting the time to sue thereon.
    2. Same—Estoppel.
    A foreign insurance company is not estopped from setting up the one-year limitation, contained in the policy, by the fact that the superintendent of insurance was absent, and the summons could not be served on him within the year.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the general term.

      H. 0. Pierce, for pl’ff; William F. Cogswell, for deft.
   Lewis, J.

This action was brought upon a fire insurance policy known as the “ Standard Fire Insurance Policy of the State of New York.” It contained the following clause: “ No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless commenced within twelve months next after the fire.”

The fire occurred on the 16th day of January, 1892. The summons in the action was sent by mail to the sheriff of Albany county on the 14th day of January, 1893, with directions from the plaintiff’s attorney to serve the same personally on the superintendent of insurance. This official was not in Albany at the time, and the sheriff, being in doubt as to the validity of a service on the deputy superintendent, waited until the return of the superintendent, which was on the 17th of said month, and on that day he served the summons personally on the superintendent. This was the only service of the summons in the action. The defendant interposed the defense that the action was not commenced within the year limit provided for in the policy. The complaint was dismissed at the trial upon that ground, with direction that the case be heard at the general term in the first instance.

The principal question presented is, can the action be deemed as having been commenced within the year limit ? The answer to this question depends upon whether the plaintiff is entitled to the benefit of the provision of § 399 of the Code of Civil Procedure, which is as follows : “ An attempt to commence an action in a court of record is equivalent to the commencement thereof against each defendant within the meaning of each provision of this act which limits the time for commencing an action when the summons is delivered with the intent that it shall be actually served, to the sheriff,” etc.

If this section applies to a case where the limitation is one not specifically provided for by the Code, the plaintiff is right in his contention. If the words of § 399 be taken literally and strictly, they are restricted to the provisions of the Code fixing the time within which actions may be commenced. There is nothing, however, in the Code expressly providing that a limitation fixed by agreement of parties shall not have the benefit of the section referred to. It is the contention of the defendant’s counsel that Wilkinson v. First Nat. F. Ins. Co., 72 N. Y. 500, is an authority for his contention. That was an action upon a fire policy containing a like limitation clause. The action was commenced two years and nine months after the fire. The plaintiff relied upon an order of the court which restrained him from receiving, and the insurance company from paying, the loss and damage, as staying the running of the statute. The court held that the order did not restrain the commencement of the action ; that it simply restrained the plaintiff from receiving, and the company from paying, the money; that notwithstanding the order he was at liberty at any time to commence his action. In commenting on the provisions of the statute saving the rights of parties in cases where they are stayed by injunction, Judge Andrews says: “ The Revised Statutes contained a provision saving the rights of parties stayed by injunction, which is now § 406 of the Code. This provision does not aid the plaintiff. The exception has no application where the limitation is prescribed by the contract of parties, but only applies to cases governed by the limitation in the general law. This is sufficiently clear from a reading of the section, but the question has been adjudicated, arising under a contract similar to the one in question. Riddlesbarger v. Ins. Co., 7 Wall. 386.”

"While, as claimed by the plaintiff, this precise question was not involved in the case in 72 N. Y, supra, it was involved in the case referred to with approval by Judge Andrews, in Wall.

Proska v. McCormick, 56 Iowa, 318, is an authority supporting the defendant’s contention. Unless this case can be distinguished from the cases referred to, the question must be deemed as settled against the plaintiff’s contention. The limitation provided in this policy, with some propriety, may be claimed not to be a matter of contract alone. The limitation was one prescribed by the legislature, or rather prescribed under and in pursuance of legislative authority ; and it was not within the power of the defendant company to fix a shorter limitation, and bind the insurer thereby. Such a limitation would not only be a nullity, but would subject the company, or its officers and agents, to punishment as for a misdemeanor. Chapter 488 of the Laws of 1886, as amended by chapter 690 of the Laws of 1892, § 121, provides for a uniform contract or policy of fire insurance to be made and issued in this state by all insurance companies taking fire risks on property within this state. The form of this policy was one adopted pursuant to law. It may be found in Rich. Ins., pp. 584-588. The clause in question was therefore inserted here in obedience to the direction of an act of the legislature. A shorter period for commencing the action, as stated, could not have been lawfully inserted. It cannot, therefore, with propriety, be claimed that the limitation was a matter of contract alone.

Hill v. Supervisors, 119 N. Y. 344; 29 St. Rep. 588, affirming, 53 Hun, 194; 24 St. Rep. 944, is an authority against the plaintiff’s contention. That was an action to recover compensation for property destroyed in consequence of a mob or riot. By the fifth section of the act, it is provided that no action shall be maintained under the provisions of this act unless the same shall be brought within three months after the loss or. injury. The action was originally brought in the county court within the three months limit, but the complaint was dismissed in that court for want of jurisdiction, the amount claimed exceeding $1,000. Therefore an action was commenced in the supreme court, but after the lapse of the statutory period. It was held that the action was not maintainable, that as it was brought under a special law, and maintainable solely by its authority, the limitation was so incorporated with the remedy given as to make it an integral part of it, and was a condition precedent to the maintenance of the action at all; and that the provisions of the Code of Civil Procedure (§ 400) providing that when an action is commenced within the time limited, and is terminated in any other manner than by a voluntary discontinuance, dismissal for neglect to proceed, or a final judgment on the merits, the plaintiff may commence a new action for the same cause within one year after such termination, do not apply. Judge Gray, in his opinion, says: “Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally, and which the Code of Civil Procedure was enacted to regulate. But this special law of 1855 gave a civil remedy which is independent of the Code remedies, and in enacting § 414 the legislature obviously had in view to except those particular or special remedies by action which they had the power to allow, and to leave themselves free to attach such conditions as to limitation of time as they saw fit.”

Our attention is called by the appellant’s counsel to the language of Learned, P. J., in Hammond v. Shephard, 50 Hun, 323; 19 St. Rep. 848. The question in that case arose under the mechanic’s lien law, which provides that a lien shall not bind longer than a year after the filing of the notice, unless within that time an action is commenced to force the same. Section 8 of the act provides that the manner and form of instituting and prosecuting such an action shall be the same as in actions for the foreclosure of mortgages upon real estate. Judge Learned, in commenting upon the clause providing that the action shall be instituted and prosecuted the same as in foreclosure of mortgages, says: “ The time of limitation is different, but the mode of commencing in respect to the limitation is the same in these actions as in those. It would, I think, be unreasonable to hold that the general rules which govern all other actions do not govern these,' unless positively forbidden. We ought to apply the same uniform system to all actions, these included. There is no reason for any distinction, and I think none was intended.”

The case in 119 N. Y. and 29 St. Rep., supra, would seem to be decisive of the question against the appellant.

If the plaintiff is not entitled to the benefit of the provisions of § 899, is the defendant company estopped from claiming that the summons was not served within the year, because of the absence of the superintendent from the city of Albany, his official residence, at the time the summons was received by the sheriff for service? The insurance law required the defendant to designate the superintendent of insurance as a person upon whom process could be served. Section 5 of the insurance law provides that the superintendent of insurance shall appoint one or more clerks to discharge such duties as he shall prescribe, and that he shall appoint one or more of such clerks to be deputies, and that in case of the absence of the superintendent, or his inability, from any cause, to discharge the powers and duties of his office, the powers and duties of his office shall devolve upon his deputy. It was held in the case of South Pub. Co. v. Fire Ass’n of Philadelphia, 51 St. Rep. 29; 21 N. Y. Supp. 675, which was affirmed by the court of appeals, 51 St. Rep. 930, that the superintendent of insurance, when designated, is as a public officer, and not as an individual ; that service of a summons on a clerk in the superintendent’s office who had been designated for that purpose was equivalent to service on the superintendent personally. It does not appear from the record in this case that the superintendent had specifically designated any such person at the time this summons was received for service, but as the law required that he should appoint a deputy upon whom, in his absence, the powers and duties of the office should devolve, the service of the summons in this case upon such deputy would, we think, have been good; and, if so, we are not at liberty to hold that the defendant was at fault in not having a person in Albany upon whom a service could be made. We see no means of escape from the conclusion, in view of the authorities referred to, that the trial court wa,s right in dismissing the plaintiff’s complaint. The motion for a new tidal should be denied, and judgment for the defendant ordered, dismissing plaintiff’s complaint.

All concur.


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    George W. Steitz, App’lt, v. Mary C. Priddis et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Payment—Proof.
    The evidence reviewed and held to be sufficient to establish that the note, given by the testatrix, was paid in her lifetime, though not surrendered.

      2. Executors, etc.—Claims.
    Claims, presented after the death of one of the parties to the transaction, call for careful scrutiny.
    Appeal from an order denying a motion to set aside the report of the referee and for a new trial, and from an order granting a motion to confirm such report.

      James S. Oarlock, for app’lt; Wilbur F. Osborn, for respt’s.
   Lewis, J.

This is a proceeding under the statute against the executors of the estate of Mary J. Scott to recover upon a promissory note bearing date May 14, 1886, made by the testatrix, for the sum of $415, payable to the order of the plaintiff three months after date at the Flower City National Bank, Rochester. The testatrix died February 7, 1889. The defendants are the executors of her will. The plaintiff formally presented the claim to the defendants on May 1, 1891. It was rejected. The claim was duly referred under the statute. The referee reported that the note was settled and paid prior to the death of the testatrix, and that the defendants were entitled to a judgment dismissing the plaintiff’s complaint. The referee’s report was duly confirmed. No question was raised upon the trial as to the making and delivery of the note. The plaintiff relied, to sustain his claim, upon the presumption of non-payment arising from his having possession of the note. The reféree found as facts, to which no excep tions were taken by the plaintiff, that after the maturity of the note in suit, and on January 7, 1887, the testatrix sold and conveyed to the plaintiff some real estate.in the city of Rochester for the nominal consideration expressed in the deed of one dollar. The conveyance was subject to a mortgage of $7,500, given by the testatrix to the Mechanics’ Savings Bank, which the plaintiff assumed and agreed to pay, with interest from December 1, 1886. The plaintiff executed and delivered to the testatrix, as a part of the purchase price of said premises, three promissory notes of $500 each, and one of $400, payable to the order of the testatrix at the Flower City National Bank of Rochester, maturing in three, six, nine and twelve months from their respective dates, with interest at five per cent. On said 5th day of January the plaintiff made and delivered to the testatrix a due bill for $100, to be paid to .the plaintiff in case a tax upon the property was made a general tax.of the city. The note in suit was never presented to the bank at which it was made payable for payment, neither was it ever discounted. The testatrix, on September 8-, 1886, gave to the plaintiff her note for sixty dollars, This note was merged in a larger one, which latter note was paid on the day of the real estate conveyance by being applied on the purchase price of the .property. The testatrix procured the three $500 notes mentioned to be discounted, for the reason that she needed the money to use. The referee also found- that in the latter part of 1885 or the fore part of 1886 the testatrix settled and paid a note held by the plaintiff; that the plaintiff did not surrender the note, for the reason that he did not have it with him at the time, but promised to mail it to the testatrix. This was not the note in suit. The referee did not find what consideration the plaintiff paid for the real estate purchased of the testatrix. He did find, however, that about three years after the plaintiff purchased the property he sold the south half of it for the sum of $10,000. There was some evidence tending to show that the consideration that the plaintiff agreed to pay for the property was $13,000.

From these facts the referee found that the note was paid during the lifetime of the testatrix, and his conclusion, we think, was fully sustained by the evidence. The note in suit was over four months past due at the time of the land transaction. The note given to take up the testati’ix’s note of sixty dollars was surrendered and paid by deducting the amount of it from the purchase price of the land. It is quite improbable that the testatrix would allow the plaintiff to retain her past-due note drawing six per cent, interest,' and take his notes for a much larger sum, drawing but five per cent, interest. If, as the evidence tends to show, the purchase price of the land was $13,000, there was a large balance due from the plaintiff to the testatrix after deducting from the purchase price the mortgage for $7,500, and the notes mentioned, amounting to about $2,000; and no reason is suggested by the plaintiff for such an unusual and unnatural transaction as to allow him to retain the note in question under such circumstances. In the absence of any explanatory evidence, the presumption is practically irresistible that the amount of the note, if it had not already been paid, must have been deducted from the purchase price of the land. There was evidence tending to show that the plaintiff, very soon after the deatli of' the testatrix, was in need of money, and applied to his grantee of the one-half of the premises for an advance payment upon the purchase price. The testatrix was entirely responsible and able to pay the note at any time during her life. She lived over two years after the conveyance of the premises mentioned to the plaintiff. The note during all this time was held by the plaintiff, and was past due, and it is quite remarkable if he failed to collect either principal or interest during that time. The strong presumption of payment raised by the defendants’ evidence the plaintiff failed to meet. Claims presented after the death of one of the parties to the transaction call for careful scrutiny. The following wholesome rule was laid down in Kearney v. McKeon, 85 N. Y. 139, for the guidance of courts in such cases: “ Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon very satisfactory proof; and when it further appears that subsequent dealing existed in which the pretended creditor was to some extent a debtor, never once presenting his claim in redaction of his debt, the weight of suspicion becomes very great, and justifies a demand for distinct and definite proof, and the clearest indication of honesty and fairness.”

The orders appealed from should be affirmed, with costs.

All concur.


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    Gilbert B. Brewster, Resp’t, v. William R. Bates, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    1. Evidence—Contract.
    In the interpretation of a contract, a subsequent one, between the same parties in relation to the same matter, is admissible to show their understanding of the earlier agreement.
    2. Contract—Construction.
    An instrument, reciting the receipt of money to be used for the person advancing it, was held to evidence a loan.
    8. Limitation—Absence from state—Joint debtors.
    The absence of one joint debtor from the,state suspends the running of the statute of limitations against him.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.

      D. M.Darrin, for app’lt; Horace D. Baldwin, for resp’t.
   Haight, J.

The appellant and one Lemon D. Coburn were co-partners engaged in the business of buying and selling crude oil. On the 24th day of July, 1866, they made and executed the following instrument, and delivered the. same to the plaintiff:

“2,541.36. Received of Gilbert Brewster twenty-five hundred and forty-one dollars and thirty-six cents, to operate with in buying and selling crude oil for him; and we are to pay said Brewster the principal and proceeds over and above the cost and trouble of buying and selling, use of tanks, etc.

“ [Signed] Coburn & Bates.”

It appears from the evidence that the money received from the plaintiff was commingled with other moneys which the defendants were using in the oil business, amounting to the sum of between $7,000 and $8,000; that shortly thereafter the defendants purchased a quantity of oil in tank, paying about $5 per barrel therefor; that subsequently the oil decreased in value, and they were compelled to sell it for less than a dollar per barrel; that thereafter, and in February, they paid the plaintiff the sum of $300. It further appears that the defendant Bates about that time removed to the state of Michigan, where he has since resided; that in 1872 he visited this state, and had a conversation with his former copartner, Coburn, and the plaintiff; that he thereupon drew the following paper, which was executed by Coburn and the plaintiff, and delivered the same to the plaintiff:

“Addison, Steuben County, N. Y., March Jh 1872.

“I, Lemon D. Coburn, of Addison, Steuben county, N. Y.f hereby agree to pay Gilbert B, Brewster, of the same place, the sum of $1,500, for value received. It is understood between tbe parties in interest that this amount, when paid, is to reimburse said Gilbert B. Brewster in full for the sum of $2,541 advanced to Co-burn-and Bates. It is also understood that said sum is tobe paid in land in Michigan, to be located in the name of said Brewster by William R. Bates of Bast Saginaw, Michigan. Said land to be accepted from time to time as located,' and amount of value of each piece of land so accepted from time to time to be indorsed upon this agreement in satisfaction thereof. It is understood and agreed that the obligation for $2,541, signed by Coburn and Bates, shall hold good until this agreement is accomplished, or that if a portion of this agreement is accomplished, or, in other words if this agreement is partially accomplished, such obligation shall hold good proportionately to the amount paid as above. It is further agreed that this agreement shall be carried out within two years from the date of this paper.”

It further appears that Bates was asked to sign this paper, but declined to do so for the reason that he was employed in the government land office in Michigan, and did not want it to be known that he had located government land in his own name. No land was located and transferred to the plaintiff under this agreement, and nothing has been paid thereon. We think the transaction described was in effect a loan by the plaintiff to the defendants Co-burn and Bates of the sum $2,541.36. It is true they received it “ to operate with in buying and selling crude oil for him,” but they agreed to repay to him the principal and any proceeds over and above the cost and trouble of buying and selling. His use, therefore, for the loan of- the money, was to be the profits from the business, and to this extent he became interested, and his right to recover the use for his money depended upon the success of the investment; but as to the principal, the agreement was to repay to him, and this promise -was not made dependent upon their success in the speculation. It appears that the defendants so understood and treated the contract for they commingled the money received from the plaintiff with that received from other sources; and when they purchased oil they purchased it in their own names, and never reported that any particular quantity had been purchased on the account of the plaintiff. And, again, in 1872, when the second agreement was executed, it was expressly stipulated that their obligation for the $2,541 loaned to them should hold good until their agreement to pay $1,500 in lands to be located in Michigan should be accomplished, thus recognizing their liability for the principal.

It is true that this agreement was not signed by the defendant, Bates, but he drew it, and therefore knew of its contents. It was intended as a compromise of the claim that they owed the plaintiff. He himself was to make the payments by the locating of the lands, which the plaintiff was to accept in satisfaction for the $1,500 which had then been agreed upon as the amount that should be paid. We must therefore consider him as assenting to the arrangement there entered into, and to his then recognizing his liability to the plaintiff for the principal loaned as still continuing. We think this agreement was properly received in evidence. It tends to show how the defendants understood and construed the first agreement entered into by them. The right of the plaintiff to recover depends upon the first agreement. The second was but an attempt to compromise. The fact that the plaintiff consented that a verdict might be directed for the sum mentioned in the second contract does the defendant no harm, for it is less than the sum that the plaintiff would have been entitled to under the first contract.

IJpon the trial the complaint was dismissed as to the defendant Coburn, upon the ground that the statute of limitations had run, so far as the claim against him was concerned. It is now contended that the statute of limitations had also run as to the defendant Bates, because the defendants were jointly liable for the plaintiff’s claim. The question is thus presented as to whether, in case of parties jointly liable, the statute of limitations will run against the claim where one remains in the state, and the other has removed from, and continues to reside out of the state. In the case of Brown v. Delafield, 1 Denio, 445, it was held that in assumpsit against several defendants it was no answer to a plea of the statute of limitations that one of them, within six years from the accruing of the cause of action, departed from the state, and continued absent until the commencement of the suit; that all the persons liable upon a joint contract mnst depart from the state, in order to arrest the running of the statute against the demand. But in Denny v. Smith, 18 N.Y. 567, this doctrine was overruled; and it was held that the absence of one joint debtor from the state suspends the running of the statute of limitations against him, although his codebtor has remained within the state. And in Merritt v. Scott, 3 Hun, 657-659, Davis, P. J., in delivering the opinion of the court, says: “After much judicial conflict, it is the settled law of this state, as to joint debtors, that, in respect to the defense of the statute of limitations, each stands upon his own hpttom, and it therefore does not follow that because one of such debtors cannot interpose the statute as a defense the other may not.”

It is claimed, however, that § 457 of the Code has changed the practice, and that the rule declared in Brown v. Delafield should be again adopted, but we do not so understand its provisions. The three preceding sections pertain to actions against two or more persons severally liable upon a written instrument. The section then provides': “The last three sections do not affect a defense or other objection to a defendant growing out of the failure to join in the action two or more persons jointly liable; and as regards the other parties to the action, persons jointly liable are regarded as one party, for every purpose contemplated by those sections.”

The revisers appear to have regarded this section as superfluous, but in view of the express repeal of the Laws of 1832, c. 276, and subsequent amendatory acts, by which the plaintiff was allowed to sue in one action the,,various parties to a bill of exchange or promissory note, deemed it best to insert it. See revisers’ note It is thus obvious that it was not inserted for the purpose of effecting the change contended for by the appellant.

The judgment appealed from should be affirmed.

All concur.


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    George B. Dayton, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 17, 1894.)

    Railroads—Fences.
    A railroad company is liable if it violates the statute as to fencing tracks, though the owner of the injured stock is not an adjoining proprietor.
    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 minutes. •

      James II. Sevens, for app’lt; Clarence A. Farnum, for resp’t.
   Haight, J.

This action was brought to recover damages for the killing of five head of cattle. It appears that the cattle had escaped from the plaintiff’s pasture upon the adjoining lands of One Osborn, and from thence passed through an open barway at a farm crossing, onto the defendant’s railroad track, where they were run over and killed by a passing train. The bars had been removed for more than six months, and some of the evidence tends to show that the bars had been removed with the knowledge and consent of Osborn..

It is contended that the court erred in refusing the defendant’s motion for a nonsuit. We are, however, of .the opinion that the case was properly submitted to the jury. It has been held that where a railroad corporation neglects to maintain fences along its road, as required by the statute, and cattle get upon the track, and are injured by its engines or cars, the corporation is liable to the owner in damages, although he is not an adjoining proprietor, and it does not appear how the cattle escaped from his pasture. Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42; Bradley v. Buff., N. Y. & E. R. R. Co., 34 N. Y. 432; Rhodes v. Utica & B. R. R. R. Co., 5 Hun, 344; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y. 353; Kelver v. N. Y., Chi. & S. L. R. R. Co., 126 N. Y. 365; 37 St. Rep. 485. It is insisted, however, that these cases have no application, for the reason that the statute has been changed. We are, however, unable to discover any substantial difference in the new statute.

The Laws of 1854, c. 282, § 8, provides: “ Every railroad corporation * * * shall before the lines of such railroad are opened erect and thereafter maintain fences on the sides of their roads of the height and strength of a division fence as required by law, with openings or gates or bars therein at the farm crossings of such railroad for the use of the proprietors of the lands adjoining such railroads, and shall also construct where the same has not already been done, and hereafter maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on to such railroad and so long as such fences and cattle guards shall not be made and when not in good repair such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon and when such fence and guards shall have been duly made and shall be kept in good repair suph railroad corporation shall not be liable for any such damages, unless negligently and wilfully done.”

The Laws of 1890, chap. 565, § 32, as amended by the Laws of 1891, chap. 367, provides as follows: “ Every railroad corporation * * * shall, before the lines of its roads are opened for use and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain on the sides of its road, fences of the length and strength of a lawful division fence, with openings, or gates or bars therein at the farm crossings for the use of the owner and occupants of the adjoining lands, and shall also construct whére not already done, and thereafter maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not made or not in good repair, the corporation, its lessee, or other person in possession of its road shall be liable for all damages done by their agents, or engines or cars, to any domestic animal thereon, but when made and in good repair they shall not be liable for any such damages unless negligently and wilfully done.”

It will be observed that in the former statute provision was made for openings, or gates or bars at the farm crossings, “for the use of the proprietors of the lands adjoining such railroad ; ” while in the new statute provision is made for openings, or gates or bars at farm crossings, “ for the use of the owner or occupants of the adjoining lands.” The former is for the use of the proprietor, and the latter for the- owners and occupants. Certainly, this variation cannot operate to change the rule of liability as established by the cases above referred to.

The judgment and order appealed from should be affirmed.

All concur.