text:
    Alfred T. White et al., App’lt, v. David A. Boody, as Mayor, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Constitutional Law—Inebriates’ some.

    Chap. 169 of 1877, which re-imburses to the Inebriates’ Home the expenditures made on account of the inebriate class and provides for their support, is perfectly legal and constitutional.

      B. Burnham Moffat, for app’lt; Almet F. Jenks, for city officials ; James C. Church, for resp’ts.
   Barnard, J.

The Inebriates’ Home of Kings county was incorporated by chapter 843, Laws of 1867. By the terms of this act twelve per cent, of the moneys received for licenses granted in Kings county, with certain deductions therefrom, not material to • the qnestion presented, were to be paid to the Inebriate Home. The county of Kings was then a portion of what was known as the Metropolitan Police District. The entire amount of the fines received for violations of the excise law in Kings county were to be paid to the home also. The act was an extremely beneficial one and was, by its terms, of a public character. The trustees could require persons who were held in the Kings county jail and penitentiary to be transferred to the home and magistrates were required to commit persons convicted for intoxication or as habitual drunkards for a period not exceeding six months and such persons were to be discharged; one class in ten days and the others in thirty days, unless transferred to the home. The excise money received by the home was to be applied for the purposes of the home “ and for no other purpose.” The act provided for the creation of branches of industry and that the inebriates should receive compensation for their services. By chap. 687, Laws of 1872, the legislature passed an act providing for the means of support of the home directly on excise money in Kings county, and the city of Brooklyn as the Metropolitan District has ceased to exist. This act increased the obligation of the home and made it, in a still larger sense, a public act. By chapter 627, of the Laws of 1875, the legislature passed an act amending the act of 1872. The act created new corporations by the first and second sections and then proceeded to amend § 1 of the act of 1872 “ so as to read as follows

Section 1 then provided that the excise money of Brooklyn city not exceeding twelve per cent, should be paid to the Home. Section 2 of the act of 1872 was repealed. Other parts of the act of 1872 were silently omitted, and additional, powers were given still increasing the charter of the Home as a public institute for inebriate paupers. By chap. 169, Laws of 1877, the legislature again amended the charter of the defendant by amending § 1 of the Laws of 1872 “so as to read as follows.” By this section fifteen per cent, of the city excise money and also from the outlying towns of Kings county-was to be paid over to the Inebriate Home. The complaint in this case is based upon this legal position. The act amending the first section of the act of 1867 “ so as to read as follows ” by the act of 1875 and the act of 1877, again amending that section “ so as to read as follows,” rendered the payments required to be made to the Inebriate Home invalid. The act of 1865 was merged in the act of 1872, and that the Law of 1872 was practically repealed by the Law of 1875, and the act of 1877 by amending the act of 1872, had no force because the act of 1872 was dead. The case of People v. Wilmoody, is no authority for this view. The law of 1872 was never repealed in terms. One of its sections was amended and again amended to conform to the legislative intent and there is a clear legislative intent to re-enact the law of 1872 so far as it was re-enacted by the laws of 1877. The payments of the excise moneys to the Home do not violate art. 8, § 11 of the constitution as amended in 1874. The payments are for city purposes and are directly within the exceptions in that article which asserts that the city may make such provisions for its poor as may be provided by the law. In the case of The Shepherd’s Fold v. The Mayor, 96 N. Y., 137, the court of appeals says that where the city is entitled to put destitute persons in the care of a corporation, the legislature has the power to authorize the city to provide for the burden cast upon it, notwithstanding the constitutional provision in question. The defendant assumes a burden in respect to a class of persons who are charges upon the taxpayers of the city of Brooklyn, and the law in question which reimburses the expenditures made on account of this unfortunate class and provides for their support, is perfectly legal as an act of the legislature and also as being within the constitutional power of the legislature to pass.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykhan, J.

license: Public Domain

text:
    In the Matter of the Arbitration of Greening and Malcolm. George Malcolm, App’lt.

      Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Arbitration—Oath.
    The arbitrators, before hearing any testimony, must take the required oath, unless such oath is waived by the written consent of all the parties or their attorneys.
    2. Same—Witnesses.
    The same rule applies to the administration of the oath to the witnesses.
    3. Samr—Umpire.
    Where the method, by which the umpire is to be chosen, is not prescribed, it is necessary to follow the statute which requires the appointment to be in writing.
    4. Same.
    The umpire cannot be selected by “lot.”
    5. Same—Powers.
    An umpire selected by the arbitrators upon their non-agreement, cannot use the testimony taken before the arbitrators, but must give all the notices and hear all the witnesses anew.
    6. Same.
    Omission to give such re-hearing is fatal to the award.
    7. Same—Action.
    A judgment cannot be rendered upon an award, which is not acknowledged, proved or certified according to the requirements of the Code.
    8. Same—Vacation.
    An award may be set aside in case the rights of an interested party have been prejudiced by the misbehavior of the arbitrators.
    Appeal from an order vacating the award of an umpire.

      Edward D. Betteus, for app’lt; 'Thornton, Earle & Riendls, for Paul G. Grening; Richard T. Greenee, for Berry Wisner Soh-man, etc.
   Dykhan, J.

Paul C. Greening commenced an action in the supreme court against George Malcom for the recovery of $7,500 as commissions for the sale of the stock and bonds of "the Malcom Brewing Company.

After the commencement of the action, Greening assigned the claim to Berry, Wisner, Sohmon & Co., as collateral security for an indebtedness to that firm.

Thereafter on the 13th day of December, 1892, Malcom, Greening, and his assignees made an agreement in writing to submit all questions in dispute relating to the amount owing by Malcom to Greening for services performed by Greening for Malcom, to William Lamb and I. Cruder Lea, as arbitrators.

The submission contained a covenant that the award to be made by such arbitrators should be observed and performed, provided the same was made in writing under the hands of the arbitrators ready for delivery on or before the first day of February, 1893. •

The submission provided further that, in case the said arbitrators did not so make their award on or before such day, then the questions were to be and were thereby submitted to the decision of such third person as should be then or should theretofore have been appointed in writing by such arbitrators to act in such case as umpire, and it was then provided that the award so made and ready for delivery on or before the first day of March, 1893, should be valid and binding upon each of the parties in like manner as if it had been made by the arbitrators first named.

Then followed other provisions in the submission not material to the determination of the questions involved in this appeal.

The agreement was under seal and signed by Malcom, Greening and Berry, Wisner, Sohmon & Co., and its execution was duly acknowledged.

Previous to the commencement of the proceedings before the arbitrators, Greening and Malcom signed a written stipulation by which it was agreed that the oaths of the arbitrators, of the umpire and of the witness, and any informality, irregularity or defect in carrying out the agreement of arbitration and each of them were waived.

Greening and Malcom and the two arbitrators, Lamb and Lea, met, and Greening, Malcom and a Mr. Offerman were examined at some length, and, at the close of such examination, the arbitrators proceeded to the election of an umpire. The election was by lot, whatever that may mean, and Joel B. Erhardt was chosen to act as umpire.

It does not appear that the umpire either sat with the original arbitrators, or heard the testimony of the parties in any way, and one of the grounds stated in the notice to vacate the award is his failure to hear the case.

On the thirteenth day of February, 1893, the umpire made an award in writing in which he stated that he did not find the evidence sufficient to warrant that Greening was a promoter, but that he was entitled to payment for his services, and fixed the amount at fifteen hundred dollars.

Neither the arbitrators nor the umpire took any oath, and no notice of any of the proceedings before them was given to the assignees of the claim.

The assignees made a motion at the special term to vacate and set aside the award and all the proceedings had under the agreement tó arbitrate. The motion was granted as to the assignees, and Malcom has appealed from the order.

Arbitrations and the submission of cases to the courts upon stipulated facts are simple and inexpensive methods of quieting disputes growing out of business transactions.

In both proceedings, however, certain rules have been prescribed which must be followed and obeyed to secure a valid result.

In arbitrations, it is now a peremptory requirement that the arbitrators selected before hearing any testimony must be sworn faithfully and fairly to hear and examine the matters in controversy and to make a just award according to the best of their understanding, unless the oath is waived by the written consent of the parties to the submission of their attorneys. Code Civ. Pro., § 2369.

In this case, no oath was administered to the arbitrators or the umpire, and they were not sworn in any way. Neither was the oath waived by Berry, Wisner, Sobman & Co. nor their attorney.

The omission of the oath was erroneous and sufficient to justify the court in vacating the award.

It is important in all judicial proceedings to secure impartiality, and it is common knowledge that each of the parties to an arbitration select one of the arbitrators. Being so selected their oath is designed as a protection to the parties and ensures freedom from the operation of bias. Day v. Hammond, 57 N. Y., 484.

The same rule applies to the failure to administer an oath to the witnesses.

In reference to the choice of an umpire, a reference to the agreement shows that such selection was .authorized in a certain contingency, but the method by which it was to be chosen was not prescribed. In that case, it was necessary to follow the statute, which requires the appointment to be in writing. Code Civ. Pro., § 2367.

It is not easy to understand the mode of appointment pursued in this case. The record says the election of an umpire to serve on the committee of arbitration was proceeded with, that the election was by lot, and Joel B. Erhart was selected to act as umpire.

The term “lot” signifies chance, or that which happens without design or forethought, and at least we are authorized to conclude that this umpire was selected in some irregular and unjustifiable manner.

In the next place the failure of' the umpire to sit with arbitrators, or to cause a new hearing, is assigned for error, and seems to fall under condemnation.

It is now provided by statute that an umpire must sit with the original arbitrators upon the hearing, and if testimony has been taken before his appointment, the matter must be. reheard, unless it is waived. Code of Civ. Pro., § 2367.

In relation to the time when the umpire should be appointed we have no statutory provision. No general rule can be enunciated for all cases, because the agreement usually controls the question. If two arbitrators are appointed with power to choose a third, and the award of two is valid, then the colleague must be appointed before any step is taken in the reference, the reason being that the parties are in that case entitled to the benefit of the judgment of all three on the whole case.

But when two arbitrators who are unable to agree, exercise apower bestowed by the agreement to appoint a third, the authority to make an award is vested in them jointly, and even if an award made by two is valid, it must appear to have been the result of their joint deliberations.

In this case the two arbitrators had power to make-an award themselves, provided they did so on or before the 1st day of February, 1893, and if they did so they had no authority to appoint an umpire.

But if they failed to so make their award, then the questions were to be submitted to the decision of such third person as should be then or should theretofore have been appointed in writing by said arbitrators to act in such case as umpire, and the award so made and ready to be delivered on or before the 1st day of March, 1893, was be valid and binding.

It thus appears that the authority of the original arbitrators was limited to the first day of February, except for the purpose of appointing an umpire, and as they had previously selected an umpire their authority expired on that day. They then became functus officio, their official authority ceased and their occupation was gone.

Before that time the umpire had no authority, but after that he became invested with the same powers as the arbitrators. He was bound by the same rules, and required to perform the duties. It became necessary for him to pursue the same course in the conduct of the trial, give the same notices to all the parties to the submission and hear all the testimony produced, even though the same witnesses had been examined before the arbitratoa-s. He could not use the testimony taken before the arbitrators. Russell on Arbitrations, p. 228. Elmendorf v. Harris, 23 Wend., 628; Day v. Hammond, 57 N. Y., 485; Salkeld v. Slater, 12 Ad. & Ell., 767.

The underlying principle for this rule is that parties are entitled to a hearing before all judicial tribunals and no one should be condemned unheard..

The reason of the rule applies with augmented force in this case, as it is a case of pure umpirage where the decision of the case rested solely with the umpire.

The failure to give a re-hearing was as mischievous and unjust as it would have beén to proceed without a hearing in the first instance and the omission is fatal to the award. West Jersey R. R. Co. v. Gibson, 6 C. E. Green, 205; Bulson v. Lohnes, 29 N. Y., 291.

If it be said that this conclusion involves the necessity of two trials the answer is that such result is the consequence of the agreement of the parties. Their submission can be carried into practical effect in no other way consistent with the rules of law applicable to arbitrations.

In relation to the claim of waiver by the stipulation of Morton and Greening and the general appearance in the case of the latter, it is sufficient to say that he had no authority to bind his assignees and they were parties to tjhe submission.

It was provided in the agreement that a judgment should be rendered upon the award made in pursuance of the submission, but that cannot be done because the award was not acknowledged, proved or certified according to the requirements of the Code. Code Civil Procedure, § 2372.

Our examination shows that the proceedings are overlaid and intertwisted with error.

They are violative of the fundamental principles of law which control judicial tribunals in the administration of justice.

These independent tribunals set up by the parties to a controversy are sufficiently irresponsible and beyond the reach of the courts even when restrained by the rules of law provided for their direction, and when their proceedings are not conducted in subordination to such rules, the only remedy within reach of the parties is to set aside the result of such illegal action as there is usually no remedy by appeal.

The legislature has provided that the court must set aside the-award of arbitrators in several cases, and the specifications are very comprehensive, including any misconduct by which the rights of any partv have been prejudiced. Code Civil Procedure, § 2374, sub. 3“

In this case the rights of Berry, Wisner, Sohman & Co. have-been prejudiced by the misbehavior of the arbitrators in the sense of mismanagement, and it thus became the imperative duty of the court to vacate the award.

The order should, therefore, be affirmed with ten dollars costs- and disbursements.


author: Barnard, P. J.

text:
    Edward D. Burt et al., App’lt, v. William H. Nafus, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Reverence—Compulsory.
    Where the only issue is one of payment, the case is not compulsorily referable.
    Appeal from order of reference.

      George G. Butcher, for 'app’lt; Jesse K. Furlong, for resp’t.
   Barnard, P. J.

The plaintiffs are the executors of Charles-Whiting, deceased. In 1889, acting utider a power of sale given by the will, they sold certain premises of the deceased to Kronacher & Etziel for the sum of $10,000. The defendant is an attorney at-law and was employed to pass the title. The deed was delivered and the money consideration paid to the defendant. He paid to the plaintiffs $9,355 and retained $645. The action is brought to obtain a judgment for this sum. The defendant, in his answer, avers that there was a serious defect in the title of record. That very valuable services were rendered in removing the defect, and considerable sums of money were expended by defendant in securing the proper releases to remove the objection, made to the title. The answer further alleges that the sum of $645 was the price agreed upon between the plaintiffs and defendant as the fair and reasonable value of the defendant’s services and expenditures, and that that sum was deducted from the amount received by the defendant, with the assent of the plaintiffs. The case is not referable compulsorily. The only issue is one of payment.

If the trial involves the necessity of proof of the items of services rendered under the releases to remove defects of title, the case is not referable by compulsion.

The case presented cannot be distinguished from Randall v. Sherman, 131 N. Y., 669; 43 St. Rep., 923; and the case of Spence v. Simis, 137 N. Y., 616 ; 51 St. Rep., 167.

The order should be reversed, with costs and disbursements to abide event of action.


author: Dykman, J.

text:
    The People, Resp’t, v. Benjamin Van Zile, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Cbiminal law—Opening.
    It will require a plain violation of the right of a defendant to induce an appellate tribunal to reverse a conviction for an erroneous opening for the prosecution.
    3, Abobtion—Evidence.
    On the trial of an indictment for abortion it is not erroneous to take proof of the death of the girl from miscarriage.
    3. Same.
    In such action, any testimony respecting the effect of the medicine prescribed by the defendant is relevant.
    Appeal by defendant from a judgment of conviction for the crime of abortion.

      James & Thomas H. Troy, for app’lt; James W Ridgway, for resp’ts.
   Dykman, J.

The defendant in this prosecution was indicted by the grand jury of Kings county in October, 1891, for the crime of abortion.

The indictment contained two counts, one charging the use of instruments for the procurement of an abortion, and one charging the prescription and administration of drugs to procure the same result

The indictment charges the commission of the offense on the 9th day of December, 1889.

The defendant was tried at the court of oyer and terminer in Kings county, in February, 1893, and the jury rendered a general verdict of guilty.

A carefnl examination of the testimony leaves no reasonable doubt of the guilt of the defendant.

While it is true that the evidence is circumstantial and leaves the question of guilt to be determined by inferences drawn from established facts, yet the facts proven are not only entirely inconsistent with the innocence of the defendant, but they can be reconciled upon no theory except that of his guilt.

The law under which the defendant was indicted and convicted is this: “ Any person who, with intent thereby to procure a miscarriage of a woman, unless the same is necessary to prolong the life of the woman or the child with which she is pregnant, either, first, prescribes, supplies or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug or .substance; or, second, uses or causes to be used any instrument or other means, is guilty of abortion and is punishable by imprisonment in a states prison for not more than four years, or in a county jail for not more than one year.” Section 294 of the Penal Code.

Under this statute the crime is perpetrated either by prescribing, supplying or administering to a woman, whether pregnant or not, any medicine, drug or substance with intent thereby to procure a miscarriage, or advising or causing a woman to take any medicine, drug or substance, unless the same is necessary to prolong the life of- the woman or the child with which she is pregnant Or, second, using or causing to be used any instrument or other means to accomplish the same result.

In this case the evidence tended to prove the defendant guilty, under the first part of the statutory inhibition, of prescribing medicine and drugs with intent to procure a miscarriage.

It will be sufficient, therefore, for the justification of this conviction if the evidence was sufficient to prove that the defendant gave the prescription set out in the case for the purpose of causing a miscarriage, because the second count in the indictment contains that charge, and the verdict was general. An outline of the material facts is this :—On the eighth day of November, 1889, Howard S. Terrell went to the office of the defendant, who was a practicing physician, in the city of Brooklyn. Terrell was accompanied by a young woman, named Lillie L. Cook, and the object of his visit was to procure an examination of the young woman by the defendant to determine whether she was pregnant. The visit had been previously arranged between Terrell and the defendant, except that no time for it had been specified. The defendant made an examination of the girl, pronounced her pregnant, and advised Terrell to marry her.

For that examination the defendant charged and received twenty-five dollars. . Three days after that and on the eleventh day of November, 1889, the defendant and Terrell met at Mun-son’s drug store in thé city of Brooklyn and after a conversation in the corner which was not heard by the clerk, the defendant asked for pen, ink and paper, and wrote a prescription which he gave to the drug clerk and said, put it up and give it to this young man, meaning Terrell, and the clerk did so.

The prescription specified several drugs which were required to be compounded, and made into twenty capsules, one of which was to be taken after each meal.

Such compound was pronounced by a professor of materia medica to be an abortive mixture.

On the'nineteenth day of December, 1889, Lillie L. Cook hada miscarriage, and at her request her sister went to the office of the defendant and left a request for him to call at the house, and he came there about eight o’clock in the evening. When he'reached the room the following conversation ensued, according to the testimony of the defendant: — The girl said, “You don't remember me, and I says no, who are you ? and she says 11 am the girl that Terrell had at your office,’ and 1 says, ‘ What is your trouble,’ and she said, ‘I am all through my trouble.’ ‘When did it occur? ’ and she says, 1 Last night.’ ”

The girl died on the 25th day of December, 1889, and in the evening before her death Doctor Topham, the family physician, was called in at the request of the mother of the girl, and the following conversation ensued between him and the defendant, according to the testimony of Doctor Topham: “ Q. What was the conversation, please? A. He, Yan Zile, told me'that he had been called into the case, I think the Thursday previous, and that she had been getting rapidly worse, and was now in a very bad condition. He did not seem to understand what the matter, what the trouble was. Q. Did he say .so? A. He said so.”

On the night of the girl’s death the defendant fled from the city and remained absent about three months, but before he left he called upon Munson, the druggist, and informed him that the girl had died, and he thought if Munson would lend him $250 he could pay the funeral expenses and satisfy the mother and settle with her in that way.

This general statement is amply sufficient to show that the jury was justified in finding the defendant guilty of making the prescription with intent to produce a miscarriage.

In fact the guilt of the defendant became so evident upon an examination of the record that no doubt remains upon that subject.

It becomes necessary now to examine the legal questions raised by the defendant at the trial and again upon this appeal.

When the assistant district-attorney was about to open the case for the people, the counsel for the defendant requested the court to direct him to omit from his opening any reference to any former trial of any one in respect to this case. The request was denied and the counsel for the defendant excepted.

Then the assistant district-attorney proceeded with the opening and stated that the defendant had been jointly indicted with Terrell, and upon the trial of the latter, the defendant became a witness for him. That the indictment, upon which Terrell was tried, contained but one count charging that the abortion had been committed by means of. mechanical appliances, but upon the trial it was disclosed that the defendant had given a prescription which was to aid in. producing the abortion, and then it became necessary to reindict the defendant.

That now the defendant was charged in two counts with having brought about the abortion by means of mechanical appliances, and also with giving a prescription for the purpose of bringing about the abortion that was successfully brought about upon the person of Lilly L. Coolc.

Now it is claimed that such opening was erroneous and violative of the legal rights of the defendant to a fair and impartial trial.

It is to be observed preliminarily that there is no legal rule for the measurement of an opening either in a criminal or civil action.

It is the legitimate office and purpose of an opening in a criminal action to give the charge against the accused and the evidence to be presented by the public prosecutor to establish the commission of the crime and its perpetration by the defendant.

Its scope and extent must be controlled by the- trial judge in the exercise of a wise discretion, and it would require a plain violation of the rights of a defendant to induce an appellate tribunal to reverse a conviction for an erroneous opening for the prosecution.»

What is said in an opening has no binding force and it 'is designed only to give a general acquaintance with the case to enable the jury to understand and appreciate the testimony as it falls from the lips of the witnesses.

The complaint here is against the statement in the opening of any connection between the defendant and Terrell in relation to the. abortion.

But it was the intention and the right of the public prosecutor to establish the complicity of the defendant with Terrell and, therefore, he had the right to state it fully. Also it was his intention to read to the jury the testimony of the defendant given voluntarily upon the trial of Terrell, and therefore, it was proper in the opening to state that Terrell had been previously tried. Also as it was a fact that the defendant had been reindicted, it was proper to state that as a reason why he was now tried for giving the prescription and producing the miscarriage. We, therefore, fail to detect any error in the opening.

Neither was it erroneous to take proof of the death of the girl from miscarriage. It was a part of the history of the case, and may well have had a legitimate bearing upon the effect of the examination of the girl by the defendant.

He said in his testimony that he used a sponge, and the effect of such use was in question all through the trial.

Even the disclaimer of the assistant district attorney for which the defendant contends does not include the use of the sponge. But the disclaimer deems to have been misunderstood. The disclaimer was of any insistance that the abortion was produced by a puncture of membraneous sack of the womb.

A physican was permitted to say that he would look for a miscarriage if the whole prescription of the defendant was taken at one dose, but that was after he had said the doses prescribed were too small. We do not think the testimony erroneous, any testimony respecting the effect of the medicine precribed by the defendant was relevant.

The exceptions to the charge of the court and the refusals to charge have all received careful examination, and we find no question raised by them sufficiently serious to require a separate examination.

They present no error and we find none in the record.

The trial was full and fair and the conviction should be affirmed.


author: Dykman; J.

text:
    Christine Beltz, Resp’t, v. The City of Yonkers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Negligence—Municipal cobfobations—Notice.
    Where the sidewalk of a city has been broken for four years, and was sufficiently dangerous to attract attention, it is sufficient to charge the city with constructive notice of the existence of the defect in the sidewalk.
    8. Same—Conteibutoby.
    A party has the right to walk along a street in the expectation that the city has performed its duty, and that the sidewalk is safe.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.

      James M. Hunt, for app’lt; John'F. Brennan, for resp’t.
   Dykman; J.

This is an action for the recovery of damages resulting from injuries sustained by a fall upon a sidewalk. At the place where the plaintiff fell the sidewalk was eight feet wide, and consisted of two rows of stone flagging, each row being four feet wide. A small triangular piece had been broken off of the outside corner of two of the flag stones of the inside row of flagging where they joined the outside row. The piece broken off from each stone was about thirteen inches by five on the longest sides, and tapered to a sharp point. When both pieces were out they left a hole twenty-six inches long- on the longest side, five inches wide in the widest place, tapering to a point each way, and two inches deep on the day of the accident. The hole was in the middle of the walk, and had remained there for about four years

The evidence tended to show that the plaintiff was walking over this sidewalk on a rainy morning in February, 1893, carrying an umbrella, when she stepped into this hole and fell, and broke both bones of her leg.

There was but little dispute respecting the facts, and the jury rendered a verdict in favor of the plaintiff for five thous- and dollars.

From the judgment entered upon the verdict, and order denying a motion for a new trial upon the minutes of the court, the defendant has appealed to this court.

So we have presented the questions usually involved in an action sounding in negligence.

In respect to the negligence of the defendant, however, the evr dence was sufficient to charge it with constructive notice of the existence of the defect in the sidewalk. It had been broken for four years, and was sufficiently dangerous to attract attention. When the earth was soft from moisture, the foot of a person who stepped into the open space would sink into the ground, and in lifting it out, it might become entangled or wedged between the stones, as the foot of the plaintiff doubtless did.

The exercise of proper vigilance and care by the officers of the municipality would have discovered that danger had caused the reparation of the walk.

We conclude, therefore, that the evidence and the circumstances disclosed justified the jury in convicting the defendant of negligence.

In relation to the contributory negligence of the plaintiff, we find no evidence of such carelessness as would have justified the trial judge in taking the case from the jury, and convicting the plaintiff of negligence as a matter of law. The plaintiff had the right to walk along the street in the expectation that the defendant had performed its duty and that the walk was safe.

She walked in an ordinary manner, and we think the jury was justified in finding her free from carelessness.

In relation to the damages we do not find them so excessive as to justify our interference.

It is to be said respecting actions against municipal corporations, which relate to defective streets or sidewalks that they are usually severe. It is practically impossible to maintain the streets and walks in a perfect condition. Flagstones become depressed or broken. The surface becomes uneven by the settling of some stones more than others, the earth of the pavement in the traveled portion of the streets sinks in places sufficient to break a wagon or injure a horse, even when the variation is slight. There is no provision for constant inspection and usually the public funds provided are inadequate to pay for repairs which would be sufficient to avoid all accidents. Yet the courts can administer no relief so long as questions of negligence are to be submitted to courts or juries; they must be decided upon the evidence and the law applicable thereto without regard to consequences.

Our conclusion is that the judgment and order from which this appeal is taken should be affirmed, with costs.


text:
    John Gillies, Resp’t, v. Manhattan Beach Improvement Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Quantum Meruit—Special contract.
    After full performance of a special contract, a quantum meruit will be supported, and the contract price be the measure of damages.
    2. Contract—Certificate.
    Where the certificate of an engineer is a jire-requisite to a recovery, the delivery of it to the owner by the engineer is a compliance with this provision.

      Appeal from a judgment in favor of plaintiff.

      William J. Kelly, for app’lt; Payne, McGuire & Low, for resp’ts.
   Barnard, P. J.

The plaintiff, in his complaint, avers that he performed labor and furnished materials for the defendant, and claims a balance of $25,730.76. The answer avers payment in full, and further, that the work was done under a sealed contract to build a wooden bulkhead, with tide-gates, on the south side of Sheepshead Bay, at Manhattan Beach, Coney Island. That the work was to be completed by the 8th of April, 1884, to the satisfaction of the defendant’s engineer, and was to be certified by him before any payment was due; that in case of failure the engineer was empowered by the agent to fix the just and reasonable damages sustained by the defendant, and charge the same against the plaintiff. That the plaintiff failed to perform in time, and the engineer assessed the defendant’s damages at the sum of $10,000, and that the engineer had not certified the work to be done. The reply avers that the delay in the completion of the work was caused by the changes in the work by the defendant, and that the delay was assented to by defendant. The reply further avers that the clause in the contract, permitting the engineer to assess damages, was abrogated by mutual assent, and the reply denies all loss and damages to defendant by th delay in the completion of the work.

Upon the trial the amount and value of the work, and its completion to the satisfaction of the engineer, is fully established by the letter from the engineer to the defendant’s president July 10, 1884. The engineer stated that the work was completed July 5, 1884, and that there was due' the plaintiff a balance of $7,884.70, not including extra work. The engineer made a final statement of the amount due the plaintiff in July, 1884, to be $9,149.97, which included the extra work ordered by the engineer from time to time.

There is abundant proof in the case that the delay was caused by extra work ordered by the defendant. There is proof, also, that the plaintiff was directed, by the engineer, to stop a part of the work to await the dredging company’s work, which was employed by defendant, and that this work was not done until about July 1, 1884. The evidence shows that the plaintiff was entirely able to finish the contract in time, but for these interruptions, and the finding that the delay was solely caused by the defendant, is well supported. The form of the action is not fatal to the plaintiff’s claim. He sued upon a quantum meruit. After full performance, such an action will be supported and the contract price be the measure of damages. The form of the action not dispense with the certificate of the engineer, which was a prerequisite to a recovery. Byron v. Low, 109 N. Y., 291; 14 St. Rep., 823.

When proof of final completion of the work is given, a recovery may be had upon a complaint framed upon a quantum meruit. Williams v. Slote, 70 N. Y., 601; Swan Lamp Manufac turing Co. v. Brush-Swan E. L. Co., 18 N. Y. Supp., 869; 46 St. Rep., 35.

The fact that the final estimate was sent to defendant direct, instead of being delivered to plaintiff and by him carried to defendant, is not an important fact in the case. The final estimate was to come from the engineer to the company, and he, in it, states that he has not delivered it to the plaintiff, because of a possible claim for the delay in the completion of the work.

The judgment should, therefore, be affirmed, with costs.


text:
    Josephine Vandewater, as Administratrix, etc., of William P. Vandewater, Deceased, Resp’t, v. New York & New England Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Negligence—Signals.
    In an action for personal injuries, alleged to have been caused by negligence, evidence to show the absence of customary signals at the station, where such warnings are usually given, is properly admissible.
    2. Same—Evidence.
    In such actions, it is usual and proper to prove all the facts and circumstances surrounding the occurrence.
    3. Same.
    What is a sufficient notice and warning at a crossing, is a matter for the jury.
    4. Same—Crossing.
    Where a farm crossing has been long used with the assent of the company, it imposes a duty upon the company to exercise reasonable care in operating its trains, so as to protect from injury all persons using it.
    Appeal by defendant from a judgment, entered upon a verdict, in favor of the plaintiff.

      W. C. Anthony, for app’lt; Wood <6 Morschauser, for resp’t.
   Dykman, J.

This action was here before upon an appeal from a judgment entered upon a verdict in favor of the defendant, and we affirmed the j udgment

That judgment was reversed by the court of appeals because the trial judge charged thé jury that it was the duty of the defendant to blow the whistle or sound the bell eighty rods before reaching the highway and continue it at intervals until the crossing was passed, and if it failed to do that, and the accident at the farm crossing was occasioned by that omission, the jury might find a verdict of negligence, the same as if the provision of the railroad act imposing an obligation to sound the bell or blow the whistle eighty rods before reaching the crossing had never been repealed.

It was also decided that the provision of the Penal Code devolving the duty of giving such signals upon the engineer, imposed no duty upon the railroad company, and therefore the failure to give such signals cannot, as a matter of law, be regarded as a neglect of the defendant

In the opinion of the court of appeals, Judge Peckham said : “ Of course the companies still owe a duty to the public at such crossings as elsewhere. The duty is to run their trains with care and caution, and when they cross such roads it may well be that the failure to give due warning by whistle or bell, or in some other way, would be held under all the circumstances to be a failure to manage and run their train with proper care and caution for which they would be liable to a party injured if otherwise entitled to recovery. Even when compelled by statute to make such signals, it is not necessarily a defense in all cases to prove that they were made. The making of the signals is the least a company can do, and in a given case it might not be enough.”

“ It may be that evidence of the omission to give any signals for the highway crossing would not be admissible as bearing upon the question of defendant’s negligence in running its trains at the farm crossing 2,000 feet distant.”

“ There are cases where evidence has been admitted showing the absence of customary signals at the places where usually they have been given, for the purpose of proving negligence on the part of the company. Whether this was a case where evidence of this nature should be admitted in favor of this plaintiff, and that required of the highway crossing is a question not now necessary to decide.”

“ If the defendant were guilty of negligence in the manner of running its train over the farm crossing, it would be liable to a plaintiff otherwise entitled to recover. Upon a new trial all the facts can be shown which would enable the court or a jury to determine the question.”

The second trial was before a judge without a jury, and he decided in favor of the plaintiff, and from the judgment entered upon such decision the defendant has appealed to this court.

The trial judge found substantially as follows: That the defendant is a foreign corporation, and is the owner of the New York & New England Railroad, that along the line of its road it has a depot located at Fishlcill village, at which depot the defendant’s trains were accustomed to stop, going in either direction, and that the defendant since January, 1890, and prior thereto established a custom of causing each and every of its engines to blow its whistle or ring its bell upon the approach of that depot in either direction, whether the train stopped there or not. That there is at right angles to such railroad a farm crossing, known as White’s crossing, which runs north and south, while the - railroad from said depot toward said crossing runs in a westerly direction in a straight line, and that White’s crossing is located about 1,400 feet westerly from that depot. That the road of the defendant over the said crossing runs through a deep cut or excavation westerly nearly from said station, to and across the farm crossing. That by reason of said excavation there were high banks on either side of the defendant’s road over which the farm crossing passed and the same continuing nearly from Fishkill Station to and across the said farm crossing.

That upon the southerly side of the defendant’s road and upon and along the edge of the said bank, on the 16th day of August, 1890, and for a long time prior thereto, there were growing and permitted to remain upon said bank, large quantities of said brush wood and trees, which, together with the banks aforesaid, interfered with and obstructed the view of people passing over and along said farm crossing, which was on a level with the roadbed of the defendant, and obstructed the view of any train thereon running toward the west, that those obstructions were of such a character' that they could have easily been removed by the defendant, and upon such removal the view of an approaching train from the west would be much better and much greater, and the removal of such obstruction would render it safer for persons crossing said railroad at said farm crossing. That the defendant had upon its road a train known as the pay car ; that they had established the custom of running the train on Friday of each week. On the 16th day of August, 1890, on Saturday, the defendant ran its pay car, being an unusual day to run the same, and that it was run from Hopewell Junction to White’s Crossing, at an unusual time and at an unusually high rate cf speed, being at least forty-five miles an hour, which was a much higher rate of speed than trains were run or had been run at that time by the defendant on said railroad, without giving any alarm or sounding any whistle or ringing any bell at the approach - of said crossing or at the approach of said depot. That the defendant’s road corn sists of a single track, and from thq Fishkill depot to White’s crossing the view of a person upon an engine is unobstructed from the depot beyond the crossing, so that an engineer running a locomotive could see any attempt of a person to pass'over that crossing with a horse and wagon before such person could observe the engine. That on this occasion, the engineeer failed to look, and did in a negligent and careless manner, run said locomotive without properly observing any danger ahead. That White’s crossing is a farm crossing, and was legally placed there and permitted to be there by the defendant, who had full knowledge of its existence, and the conditions surrounding it, and the crossing was used by persons residing on each side of the crossing, and was also used by other persons to reach a creek near by, all of which the defendant admitted, and of which it had full knowledge.

That on the 16th day of August, 1890, the defendant ran a train consisting of one locomotive and a pay car as mentioned above, which car at that time was going toward the west and ran the same toward said Fishkill depot, and in the direction of the crossing, and over the crossing without giving any warning, or sounding any whistle or ringing any bell or making any noise to attract attention, and that the same was run by the defendant in such a careless, negligent manner, as to strike the said William P. Vunderwater while going over the said crossing, and instantly kill him. That the deceased upon approaching and at the time he attempted to go over che said crossing, looked in both directions, and listened for the approach of any train, and attempted in a proper and careful manner to cross the railroad track, and that he was struck by the train without any negligence or carelessness on his part while approaching the crossing in a proper, prudent and careful manner. That the running of the train by defendant at an unusual time, and at such a high rate of speed, and approaching the depot without sounding any alarm according to custom, and approaching the crossing, knowing the conditions and obstructions there existing, with such a train was such negligence and carelessness as to cause the death of the deceased, and. the same did cause his death. That the deceased was killed by reason of the negligence and carelessness of the defendant, and the plaintiff has been damaged in the loss of her said husband in the sum of $5,000, suffered pecuniary loss in that amount resulting from his death.

As conclusion of law, the judge found and decided that the defendant was bound under the circumstances to use ordinary care and prudence which it failed to do on this occasion, and that the plaintiff’s intestate was not guilty of contributory negligence.

Under all the circumstances surrounding the occurrence which resulted in the death of the plaintiff’s intestate, the running of the train at an unusual time, at such high rate of speed, without sounding any alarm according to their custom so to do, and approaching such crossing where the plaintiff’s intestate was killed, knowing the conditions and obstructions there existing, was carelessness and negligence, and it was such carelessness and negligence that caused the death 'of plaintiff’s intestate, without any fault or negligence on his part. That the plaintiff has been injured and suffered pecuniary loss in the sum of $5,000 by the Joss of her husband. The plaintiff is entitled to judgment, for the sum of $5,000, together with interest thereon from the 16th of August, 1890, being the day of the death of the said deceased.

A serious question in this case is, whether evidence to show the absence of the customary signals at the station where such warnings are usually given was properly admissible. The court of appeals leave this question in abeyance, but state, as we have seen, that if the defendant was guilty of negligence in running its trains over the farm crossing, it would be liable to a plaintiff, otherwise entitled to recover.

Inasmuch as there is small ground for attributing negligence to the deceased, the question is of paramount importance upon this appeal.

lii an action of this character it is usual and proper to prove all the facts and circumstances surrounding the occurrence, not to impose any duty upon the company which the law does not enjoin, but to lay before the jury the manner of operating the road.

It is not the legal duty of a railroad company to maintain a flag at crossings nor to remove obstructions to observation, and yet the absence of the former and the presence of the latter may always be proven upon the trial as bearing upon the general question involved. Casey v. N. Y. C. & H. R. R. R. Co., 78 N. Y., 518; McGrath v Same, 63 id., 528.

So, conversely, it may be an insufficient defense to prove compliance with the statutory regulations respecting signals. Giving such signals does not under all circumstances relieve the company from the imputation of negligence. They are bound to use ordinary precaution to avoid collisions. Thompson v. N. Y. C. & H. R. R, R. Co., 110 N. Y., 636; 16 St. Rep., 869; Harty v. Railroad Co., 42 N. Y., 468.

In the case of Casey against the railroad company, supra, proof was admitted to show that the defendant, previous to the accident had been in the habit of keeping a flagman at that place, and that he was not there at the time, and it was held competent proof. We think that case analagons to this. Here the proof is that the custom was to give alarms on approaching the station, and the custom was not pursued at the time of the accident.

We may assume from the frequent use of the crossing by the deceased, that he was familiar with the custom of the company to give occasional signals when trains approach the station, and that being so, the omission of the custom on this occasion may have lulled him into security, and induced him to advance after looking and listening for signs of an approaching train, as he did. Sullivan v. Tioga R. R. Company, 44 Hun, 311; 7 St. Rep., 627,

The crossing where the deceased met his death had been used so long with the assent of this company that such acquiescence amounted to a license, and imposed a duty upon the company in respect to all persons using the crossing to exercise reasonable care in operating its trains so as to protect them from injury.

Although in such cases the company is not absolutely bound to ring a bell or blow a whistle upon the locomotive of a train approaching such crossing, yet it is bound to give such notice and warning, and as to what is sufficient in this regard is a matter for the jury. When a train is approaching a crossing of this characacter, the fact that the bell was rung does not, as a matter of law, establish the fact that the company used reasonable care, but it is for the jury to determine whether any other precaution should have been taken by those in charge of the train. Swift v. Staten Island Rapid Transit Railroad Company, 123 N. Y., 649; 33 St. Rep., 604; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y., 289; Byrne v. Same, 104 id., 362; 5 St. Rep., 722.

These authorities all indicate the propriety of permitting proof upon the trial of all the acts, either of omission or commission which surrounded this catastrophe.

In accordance with the suggestion in the opinion of the court of appeals, the plaintiff omitted proof of failure to give any alarm for the highway crossing east of the station. Our conclusion, therefore, is, that the evidence proves the defendant guilty of negligence in running a train over the farm crossing, and that the deceased was free from negligence.

The judgment should be affirmed, with costs.


text:
    William Ziehen, Resp’t, v. David J. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Contract—Tender of Performance.
    No tender is necessary where performance is waived or rendered impossible by the party against whom damages are claimed.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

      Frank P. Demarest, for app’lt; Abram A. Demarest, for resp’fc
   Barnard, P. J.

On the 10th of August, 1892, David J. Smith, made an agreement with the plaintiff to convey certain premises to him in Eockland county for $3,500. The conveyance was to be subject to a mortgage of $1,000. Five hundred dollars was to be paid when the contract was executed, which was done. The defendant, John H. Smith, signed the contract for David J. Smith, the owner. That the agreement made a representation that there was only a mortgage of $1,000 on the property, while, in fact, to the knowledge of both defendants, there was a mortgage of $1,500 additional, which swept the title away from the defendant owner. The plaintiff has obtained no conveyance and has had no repayment to him of the $500. The $1,500 mortgage was in course of foreclosure when the $500 was paid, and the property was sold in December thereafter. The contract was proven on the trial, the payment of the $500, the foreclosure and sale under it, and that John H. Smith was an' owner of the property and sold it to David J. Smith in May,,1892. John H. Smith gave the $1,500 mortgage while he had title. The objection made to the plaintiff’s recovery is that no offer was made to the Smiths,one or both, to perform; performance or an offer to perform is necessary in cases for damages for breaches of contract; but it is a universal exception that no tender is necessary where the performance is waived or performance was impossible by the party against whom damages are claimed. The fraud was made out by the proof of the falsehood as to the second mortgage. The right to recover the payment back was instantaneous upon proof of the fact which made out the fraud.

The judgment and order denying new trial should be affirmed with costs.


text:
    James C. Caywood, as Guardian, etc., Resp’t, v. John K. Van Ness, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Conversion—Second assignment of bond and mortgage.
    Where a mortgagee, after having transferred a bond and mortgage by a written assignment which remains unrecorded, again assigns them to a bona fide purchaser, who first puts his assignment on record, it amounts to a conversion of them.
    Appeal by defendant from a judgment entered on a verdict in favor of plaintiff.

      Robert Payne, for app’lt; Cook & Salmon, for resp’t.
   Barnard, P. J.

David Gr. Oaywood was appointed by the surrogate of Kings county, guardian of his two infant daughters, Ellen M. Oaywood and Mary M. Oaywood. He- died in February, 1890, and there was found among his papers an assignment of a bond and mortgage executed by the defendant to David Gr. Oaywood, guardian. No bond and mortgage was found. The plaintiff was properly appointed guardian of the children, and he brings this action to recover for a conversion ' of the bond and mortgage by the defendant. It was proven that in April, 1889, the defendant assigned the bond and mortgage to Reuben R. Finch, and that the previous assignment to the plaintiff’s predecessor as guardian was not recorded. These facts presumptively made out a cause of action. The written paper passed the title to the bond and mortgage and the subsequent sale of the securities by the defendant established a conversion of the same. Fulton v. Fulton, 48 Barb., 581.

The proof also supports the verdict of the jury. It was proven that when the defendant’s attention was called to the fact of the assignment being found among the deceased guardian’s papers, he suggested that, possibly, the guardian may have assigned the paper to raise money on. He had then again assigned th.e papers himself. The defendant in April, 1889, admitted that he had §2,000 of Oaywood’s money (the deceased guardian), and he spoke of it as a fund. This was about the very date of the second assignment made by Yan Ness. The proof shows that the fund belonging to the children was about the sum of §2,083.33. The defendant received over $3,000 on the second sale of the mortgage. The defense consisted of evidencejtending to show a settlement with the deceased guardian just before the second assignment. The credibility of the witnesses was a question for -the jury and their finding based upon a refusal to credit this settlement, is fully sustained by the whole body of the evidence.

The judgment should be affirmed, with costs:


author: Dyeíman, J.

text:
    John Adamson, Resp’t, v. Union Railway Co., Impl’d., etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Taxpayer’s action—Municipal corporations.
    The object of an action, under chapter 301 of 1892, must be to prevent an illegal official act, or to prevent waste or injury to any property, funds or estate of a county, town, village or municipal corporation.
    2. Same—Grounds. •
    Fraud, or bad faith amounting to fraud, brings a case within the operation of this statute.
    3. Same.
    The prevention of the realization of money by the city is equivalent to waste of the public funds of the municipality.
    Appeal from a judgment which adjudged the consent of the local authorities granting to the defendant corporation permission to build its railroad to be illegal, and restraining such corporation from constructing any part of its road.

      James 0. Church, for app’lt, Union R’y Co.; Foster L. Backus, for appl’ts, Coffey et al.; Edward M. Grout, for resp’t.
   Dyeíman, J.

This is an appeal from a judgment procured at special term which adjudged the consent of the local authorities granting to the defendant corporation permission to build its railroad to be illegal, and restraining that corporation from constructing any part of its road.

It is the object of the action to procure a judgment which shall declare the grant to the corporation set out in the complaint to be illegal, and restraining that company from doing any act or taking any step toward the construction of a railroad over the streets and avenues described.

The complaint contains the following allegations: The plaintiff is a citizen and resident and freeholder of the city of Brooklyn, and owns real estate therein which is assessed for more than $1,000, that he is liable to be assessed in the city of Brooklyn, and has been so assessed, and has paid taxes there within one year previous to the commencement of this action. It is also alleged that the plaintiff’s dwelling house is situated on the southerly side of Union street in the city of Brooklyn; that the city of Brooklyn is a municipal corporation, and the Union Railway Company is a domestic railroad corporation; that the individuals named as defendants are members of the common council of the city of Brooklyn, and as such are trustees of the property, funds, effects and estate of the city.

In or about the month of June, 1892, the defendant railway company and the Union Street Railway Company, another domestic railway corporation, made application to the common council for leave to construct, operate and maintain a street surface railway, to be run by electric power along certain streets in the city of Brooklyn.

The common council, first through a committee, and afterwards as a whole body, heard the application at' the same time. The Union Street Railway Company then and there offered the said committee and the common council to pay the sum of $30,000 for a grant from the city authorities for the right to construct and operate such railroad through such streets, and was ready and able to pay the same. The defendant railway corporation made no offer whatever for such grant. Bach of the railway companies proposed to build and operate and would have built and operated the same kind of a railway, and there was no difference between them, and no preference could for any reason be given to the one over the other.

The common council and its committee wrongfully and willfully, and in violation of their official duties to the city, and the taxpayers, and in waste of the property, funds, effects and estate of the city, solely in order to favor the said defendant railway company and the persons who are incorporators and stockholders thereof, and colluding with such persons, with intent to cheat and defraud said city out of the value of said leave to construct, operate and maintain such railroad, refused to entertain the offer of the Union-Street Railway Company, and ignored and refused to consider the same, and on the 7th da^ of July, 1892, voted to-give leave to construct, operate and maintain such street surface-railway on the said streets and avenues to the defendant railway company and exacted no terms or compensation therefor. The resolution granting said leave thereafter came before the mayor of the city of Brooklyn, and was vetoed by him, on the grounds, among others that the same was illegal and wasteful and that the leave to construct, operate and maintain such railroad if of any value to any railroad company was also of value to the city of Brooklyn and the city of Brooklyn should receive compensation therefor.

Thereafter the common council wrongfully and wilfully, and in violation of their official duties to the city and tax payers, wasted the property and funds of the-city, solely to favor the defendant railway company and the persons who are incorporators, and stockholders thereof, and colluded with such persons with-intent to cheat and defraud said city out of the value of said leave to construct, operate and maintain such railroad, again refused to entertain the offer of the Union Street Railway Company, and ignored and refused to consider the same, and passed the said resolution over said veto.

The right to construct, operate and maintain a- street surface railway over the said streets and avenues is a valuable right, for which the city of Brooklyn could realize a large sum of money, little less than the sum of $30,000.

The plaintiff has requested the city of Brooklyn, through its' mayor to bring or cause to be brought an action to have the said granting to be declared null and void, but the said defendant has. neglected and failed so to do.

The cause was tried before a judge who found that the plaintiff is a citizen of the United States, a freeholder and elector therein, and his assessment on real estate therein owned by him amounts to more than one thousand dollars, and he is liable to be taxed upon such assessment in such city, has been so assessed, and has so paid taxes in said city on such assessment for one year" previous to the commencement of this action. That the city of Brooklyn is a municipal corporation. The defendant, the Union Railroad Company is a domestic corporation, and the Union Street Railway Company also. The individual defendants are members-of the common council of the city of Brooklyn. Shortly after the incorporation of the Union Railroad Company of the city of Brooklyn, it made written application to the common council for their consent to the construction and operation of its railroad, upon the streets and avenues described in its charter, that no decisive action was at that time taken in regard to such written application.

The two railroad corporations, the Union Railway Company and the Union Street Railway Company, made application to the common council for leave to construct, operate and maintain a. street surface railroad to be operated by electric power along certain streets in the said city, the route described in both applications being the same.

The attorney for the Union Street Railroad Company offered to the committee to pay the said city $30,000 for the right applied for, that said committee failed, refused and neglected to entertain the offer of $30,000 and reported in writing to the common council, recommending that the said right be given to the defendant railroad company and failed and neglected to report the said offer of the $30,000 to the common council. The committee, and the members thereof, purposely and in bad faith, and in order to prevent the consideration of the said offer by the common council, failed to report the same, and the common council passed a resolution granting the consent asked for by the Union Railroad Company. The offer of $80,000 was not entertained or considered by the common council, but that body by resolution granted the same right to build and operate such road along the entire route, to the defendant railway company without obtaining or exacting any equivalent conditions or obtaining any service or advantage which the other company would not also have furnished to the city and public, and without obtaining any compensation for such permission, and gave away the said franchises without recognizing the proposition and offer of the Union Railway Company. That neither the committee nor the common council were influenced in their action by any differences in accommodation or public service between said two companies by the railroads they intend to build and operate.

As conclusions of law the judge decided that the neglect to entertain the offer of $30,000 and report the same to the common council, was a breach of official duty by the members thereof, and unlawful and in bad faith, that the committee and common council were required by law to entertain the said offer, and the said committee were required by law to report the same to said common council and it was the duty of the common council to entertain and consider the said offer, and to make the said grant to the company offering and ready to pay the said sum of $30,000 therefor, there being no satisfactory offer or inducement held out by the other company. That the refusal to entertain the proposition in the said petition, and the said offer, and the giving away of the said right or franchise notwithstanding the same, for no consideration and without exacting or receiving any equivalent, was wrongful, and in bad faith, and a breach of official duty by the official defendants, and that the plaintiff was entitled to judgment enjoining the defendants and each of them from proceeding further with such illegal action, or from constructing or permitting the construction of the said road, and also annulling the said action of the common council, and declaring void and of no effect its said resolution or grant.

These findings are amply sustained by the evidencé, and judgment was entered in accordance therewith pursuant to the first part of the prayer of the complaint, and the Union Railway Company has appealed therefrom to this court.

This action was tried and decided upon the theory that the plaintiff was a taxpayer and in reference to the rights of taxpayers to entertain similar actions under chapter 801 of the Laws of 1892, and we shall so consider it.

The portion of § 1 which is material to this action, reads as follows: “ All officers, agents, commissioners and other persons acting, or who have acted for and on behalf of any county, town, village, or municipal corporation in this state, and each and every one of them, may be prosecuted in an action, or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury, or to restore or make good, property, funds or estate of said county, town, village or municipal corporation, by any person or corporation whose assessment, or by any number of persons or corporations jointly, the sum of whose assessment shall amount to one thousand dollars, who shall be liable to pay taxes on said assessment or assessments in the county, town, village or municipal corporation, to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upoñ any assessment or assessments of the above named amount, within one year previous to the commencement of such action or actions.”

The object of the action so authorized must be to prevent an illegal' official act, or to prevent waste or injury to any property, funds or estate of such county, town, village or municipal corporation. Civil actions by private individuals to prevent waste and injury of public property, protect taxpayers and restrain official malfeasance, were unknown to the common law, and were first authorized in this state in 1872-in consequence of the stupendous frauds perpetrated in the city of Hew York about that time.

The first act authorized an action against officers and agents of counties, towns and municipal corporations of the state to prevent waste or injury to property or funds thereof. Laws of 1872, chapter 161.

Thereafter this act was incorporated into § 1925 of the Code of Civil Procedure. Then came chapter 526 of the Laws of 1879, which gave the action for the same purpose, in substantially the same language. That was followed by § 435 of the Laws of 1880 in the same terms so far as the relief was concerned.

The first act of 1872 was entitled “ An act for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents, and down to 1880 the acts were amendatory of that statute.

Then came the act of 1881, which was an independent statute, entitled an act for the protection of taxpayers, and in it for the first time were these words: “ To prevent any illegal official act on the part of any such officers,” * * * followed by the words “ or to prevent waste, etc.” Chapter 531 of the Laws of 1881. That Law repealed chapter 485 of the Laws of 1880.

To that law there was an amendment in 1887, but substantially the same words were employed in specifying the relief authorized as in the law of 1881. Chapter 673 of the Laws of 1887. That statute was followed by chapter 301 of -the Laws of 1892, from which we have quoted. The history of legislation on this subject shows how progressive have been the enactments. Instead of an abridgement of its scope, or a relaxation of its rigor, the legislature has extended its sweep and augmented its severity, and that is a sufficient admonition against any circumscription of operation of this statute. All the statutes have been in the interest of the public and aimed at frauds and wrongful acts of public officers and agents.

It is the insistance of the appellant that bad faith is insufficient to justify this action, and that nothing short of corruption and fraud will suffice, and of that there is no proof. We cannot concur with this view. It was stated in substance in the opinion of the court of appeals, in the Talcott case, 128 N. Y., that fraud or bad faith amounting to fraud, brought a case within the operation of this statute.

Here the common council refused to entertain the proposition, of the Union Street Railroad Company, by which the city would have realized the sum of $30,000 for the same franchise which was bestowed without compensation, and the trial judge found that act was wrongful, in bad faith and a breach of official duty of the official defendants.

Plainly it was a case of malfeasance, and judged by the motives which actuate men, the inference is easily drawn that the action was collusive. If the object was not to favor the defendant corporation the act is inexplicable. That favor was a pecuniary injury to the municipality, and the act was a fraud upon the city. Official misconduct and bad faith are so near the domain of fraud that the line of partition is indistinguishable. While it is difficult to give a precise definition of fraud, yet in its broad signification it includes all acts and omissions which involve a breach of legal duty, injurious to others.

In fact, to the eye of an ordinary observer, the fraud here is palpable. One company offered $30,000 for the franchise, and the offer was refused, and the other offered nothing and received the consent.

While there may possibly be a case where circumstances would justify such a course, yet this record discloses no such justification.

We concur fully with the trial judge that the prevention of the realization of money by the city, is equivalent to waste of the public funds of the municipality.

In fact we concur in the opinion of the trial judge entirely, and deem further elaboration unnecessary.

In conclusion we say, the action of the officials was illegal, wasteful and fraudulent, and the judgment should be affirmed, with costs. •


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    In the Matter of the Guardianship of Dorothy Annan.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Guaudian and wakd—Appointment.
    The rule which governs the appointment of guardian is solely the best interests of the infant.

      Appeal from a part of a surrogate’s decree which appoints two persons guardians of the person of the infant, and provides that each guardian should have the custody of the infant every alternate six months.

      Judson & Larrib (A. .M Lamb, of counsel), for app’It; John Oakley ( William D. Veeder, of counsel), for resp’t
   Barnard, P. J.

Dorothy Annan was born September 8, 1890. Thjs surrogate appointed a maternal aunt and a maternal grandmother guardians of the person of the infant. The order provides that each guardian have the custody of the infant every alternate six months, and it is.only this proviso of the order which is presented to this court by the appeal. All admit that the maternal aunt is a proper person to be guardian. She lives with the paternal grandfather of the infant, Mr. Annan, a man of large means, and she has had charge of the infant since the infant’s mother died in July, 1891. The infant's father died in January, 1893. The child was left in charge of Mrs. Bichardson during the interval between the death of the mother and his own death. The rule which governs the appointment of guardian is solely the best interests of the infant. Code 2821; Bennett v. Byrne, 2 Barb. Ch. 216; People ex rel., etc., v. Wals, 122 N. Y., 238; 33 St. Rep., 220.

Under these authorities it does not seem that the joint guardianship as ordered should prevail. The child is very young and needs extremely careful attention to its health. This involves unity of treatment and a careful respect for the feelings of a baby of such years. A change of place, of treatment, of nurses, of surroundings every six months should be avoided. The interests of the infant are entirely in favor of the guardianship of Mrs. Bichardson, viewing the case solely with reference to the physical wants of the infant. The last wish of the child’s father was in favor of Mrs. Bichardson bringing up the child as guardian. The pecuniary interests of the infant are entirely in favor of the child being brought up in the family of Edward Annan. He bad a strong affection for his son, the child’s father, and is willing to bring the child up socially, far better than the estate of the child, which is small, will do. The child will be better cared for by Mrs. Bichardson and will be brought up by his grandfather Annan with a full appreciation of his expectation for him.

The part of the surrogate’s decree appealed from should be reversed with costs and disbursements out of the estate.


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    Jones Saltzman, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Negligence—Conteibutoky.
    Where, in an action for negligence, the testimony on the_ part of the plaintiff, as to the facts and circumstances of the accident, is' denied on the part of the defendant, a case is presented where the question of plaintiff's contributory negligence is for the jury.

      2. Same.
    In this case, it was held that, upon the facts necessarily found by the jury, there was no basis for even a question as to plaintiff’s negligence.
    3. Evidence—Negligence.
    In an action for negligence, it is proper to permit the surgeon to answer that, in his opinion, the injury received was liable to grow worse.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order danying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Julius Klanlce (Boswell H. Carpenter, of counsel), for resp’t
   Barnard, P. J.

On the 14th of March, 1892, the defendant received the plaintiff upon its car, which was entirely filled inside so that he was compelled to stand upon the platform in the rear. The car stopped at frequent intervals to receive more passengers, so that the plaintiff was crowded to one side of the platform and then to the step. At this time the. horses attached to the car began to run faster and the car jounced up and down, so that the plaintiff was thrown from the platform and injured. Under these facts, proven by the plaintiff and denied by the defendant, the case was one for the jury. Lehr v. S. & H. P. R. R. Co., 118 N. Y., 556; 30 St. Rep., 1.

The very statement of the facts presents a case where the contributory negligence upon plaintiff’s part shows a case for the jury. This is the general rule, and the particular facts in the case furnish no exceptions to its appliance here. Assuming the facts as necessarily found by the jury, there is no basis for even a question as to the plaintiff’s negligence. He got upon the car at defendant’s invitation as a passenger, and it was so overloaded that he was forced to stand upon the step. While in this insecure position, the defendant increased its speed so as to jolt the passenger from his standing place, whereby he was injured.

It was proper to permit the surgeon to answer-, that, in his opinion, the injury received was liable to grow worse. Alberti v. v. N. Y., L. E. etc., R. R. Co., 118 N. Y., 77; 27 St. Rep., 865.

The judgment and order denying new trial should be affirmed, with costs. _


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    Democratic County Committee v. Republican County Committee. In the Matter of School Commissioners of Queen’s County.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    School commissioners—Number.
    Chapter 397 of 1892, gives a school commissioner to the assembly district as such assembly district may be made in the future.

      F. H. Yan Yechten, for pl’ff; W. J. Youngs, for def’t
   Barnard, P. J.

By chap. 179, of the Laws of 1856, the legislature created an office for school commissioner for the several counties of the state. The boards of supervisors were directed to elect one for each assembly district, where a county had more than one assembly district, and in counties having only one assembly district, the board of supervisors were authorized to divide the district whenever the school districts exceeded 140 in number. Queen’s county then had but one assembly district and there was no division of the district. The legislature by this act-of 1856, provided that at the annual election of 1857 there should be elected on a separate ballot “in the several assembly districts” one school commissioner. In 1857, by chap. 337, Queen’s county was given two assemblymen and the supervisors were directed to “ divide these respective counties into assembly districts” which was done. A school commissioner was elected for each district in 1857 and every three years thereafter, until the present time. In 1864, chap. 555, Laws of 1864, the legislature adopted the districts as recognized by the election of 1863 and declared in the second section that these districts for the election of school commissioners, should continue to be held and regarded as school commissioners districts, except “ as the same shall be altered ” by the legislature.

By chapter 397, Laws of 1892, Queens county was given three members of assembly, and the supervisors, by direction of the legislature, divided the county into three assembly districts and the question presented is whether the school commissioners districts are changed without a legislative declaration specifically to that effect other than is involved in the change of the assembly district. We think that the change of the assembly districts was a change of the school- commissioners districts. There is no power by which a school commissioner can be elected except by assembly districts under the Laws of 1856 and 1864. When the legislature changes the assembly districts, of necessity, the school commissioners district is changed, otherwise there can be no legal election of school commissioners in the several assembly districts. One part of the old assembly district is not included in the new, and there is no provision for an election for a school commissioners district made up in part by territory lying in the two separate assembly districts. The law of 1856 stands, and the discrepancy between its requirements and the Laws of 1892 reapportioning Queens county into the three assembly districts cannot stand together, on the view taken by those who claim to elect two school commissioners in Queens county not in the assembly districts under the existing election laws, but under .districts. which are other and different from the assembly districts. The law gives a school commissioner to the assembly district, not as it was in 1857, but as such assembly district may be made in the future.

The judgment of the court on the submitted caséis, that the county of Queens’ school districts are the same as the assembly districts and there must be'a commissioner elected at the coming election, one for each assembly district, excluding Long Island City, which forms a separate assembly district and has its own school law.


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    The People, Resp’t, v. Gilbert Hall, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Larceny—Note.
    A note, given in consideration for a lease of real property, where no written agreement to release has been given, is not the subject of larceny.
    Appeal from a judgment of conviction for the crime of larceny.

      A. J. Adams, for app’lt; W J. Platt, for resp’t. '
   Barnard, P. J.

The defendant was indicted for larceny in the second degree and convicted. The statute reads as follows:

“ A person who, with intent to deprive or defraud a true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or any other person, either takes from the possession of the true owner or of any other person, or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false tdken or writing or securities, withholds or-appropriates to his own use or that any other person, from the true owner, any money, personal property, thing in action, evidence of debt or contract, or articles of value of any kind, steals such property, and is guilty of larceny.”

The facts are as follows: One Mrs. Cappelman agreed to sell the defendant a parcel of land free of all encumbrances. A Mrs. Burhans claimed to have a ten years’ lease of twenty feet of the same. Mrs. Cappelman failed to agree with Mrs. Burhans for the price of a release of her claim. To free herself from her difficulty she agreed to pay back to Hall $1,000 of the $1,275 which was the cost of the place. Hall then went to Mrs. Burhans and they made a verbal agreement to the effect that Mrs. Burhane would release the strip to Hall if he got the $1,000 of Mrs. Cappelman. Hall gave the note, which is claimed to be the subject of the larceny to Mrs. Burham in these words:

I agree to pay Mrs. C. M. Burhane the sum of $200 for a release of twenty feet of ground on side of building; and this note is to be null and void if Mrs. Emil Y. Cappelman does not pay me $1,000.

“ Gilbert Hall.”

Mrs. Cappelman paid Hall the $1,000. Hall again went to Mrs. Burham and asked to see the lease. The requirement was refused by Mrs. Burham, and he was sent to the clerk’s office to see it. He again returned and took the release to show, as he said, to his lawyer. Upon his return he asked Mrs. Burham for the note. She first refused to get it, but finally did get it, and Hall snatched it from her hand and destroyed it. There were two witnesses present besides the parties, Burham and Hall. Hall asserted that Mrs. Burham had no lease. He testifies that there was no lease on the lot which Mrs. Burham held. The note , or paper was not proper. It rested in nothing. Mrs. Burham had made no written agreement to release, and her verbal promise was void. 2 R. S., 2326, § 8; Rowen v. Little, 11 Wend., 616; Odell v. Montross, 68 N. Y., 499.

The note was only a provision by Hall to take a title which Mrs. Burham was not bound to give nor Hall to take. Such a paper is not the subject of larceny. Paine v. The People, 6 J. R., 103.

Mrs. Burham has lost no property right actual or contingent. She has given no deed or release. She cannot be compelled to give any such paper. She ought to have shown her lease if she had one. She could not claim the $200 unless she gave the consideration, and it was not the spirit and intent of the agreement that Hall should pay $200 for a release which rested on nothing except the bare possession of Mrs. Cappelman’s property. It is not necessary to place the decision on this ground, because the note was of no value for lack of mutuality in the agreement to release.

The conviction should therefore be reversed and a new trial granted.


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    Theodore Randolph, Resp’t, v. Robert B. Murray, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Pleadings—Demurrer.
    A complaint which sets out a contract, alleges that the plaintiff did services under it which, by its terms, were not necessarily for an entire term of one year, that a certain sum was due upon it, and that all the conditions to be performed by him, to entitle him to such money, had been performed, "is not demurrable.
    Appeal from a judgment sustaining a demurrer.

      William E. Qowdey, for app’lt; Bichard S. Harvey, for resp’t
   Barnard, P. J.

The complaint sets out two causes of action. One is upon a promissory note made by the defendant. There is no answer to this cause of action. The second cause of action is for work done under a contract, which is set forth by the complaint. By this contract the plaintiff agreed, for the space of one year from. May 23, 1892, to do certain printing in two newspapers in Rockland county. The defendant agreed to pay certain specified rates for setting up and printing the publication. The agreement is silent as to the time of the payment. The complaint avers that there was due the plaintiff under the contract on the 27th of October, 1892, the sum of $55.33, for services rendered and material supplied, and that such sum was demanded by the plaintiff from the defendant, and was not paid. The defendant demurs to this second cause of action for a failure to set up facts sufficient to constitute a cause of action. Under the rule that a demurrer admits the facts stated, the pleading is good. The contract, by its terms, permits either party to terminate it on a notice of sixty days. An admission, by the defendant, that a contract there was due to the plaintiff for work done under it, would support a judgment for the sum admitted to be due. The agreement mav have been one for weekly payments, in the view of the" parties, and it may have been abrogated. The admission of a sum due would be sufficient, in the absence of contradiction, to establish a right to judgment upon it. The averment of a specified sum due on the account, is aided by the allegation contained in the complaint, that the plaintiff has performed all the conditions of the contract, on his part.

The whole cause of action is equivalent to this: The plaintiff sets out a contract; alleged that he did work under it; by the terms of the contract, the services were not necessarily for an entire term of one year; that $55.38 was due upon it, and that all the conditions to be performed by the plaintiff, to be entitled to that money, had been performed.

The defendant says that these allegations are all true.

The judgment should be affirmed, with costs.


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    James J. Treanor et al., Pl’ffs, v. Charles F. Eichom, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Statutes—Local.
    Ghap. 493 of 1893 is not a local or private act.
    3. Same.
    An act embracing all things of a certain class is a general and not a local act, though, hy reason of a limitation, based on population, a single locality only , can receive its benefits.
    Case submitted under § 1279 of the Code.

      Joseph F. Daly, for pl'ffs; William A. Jaycox, for deft.
   Barnard, P. J.

Chapter 493, Laws of 1892, is not a local or private act. It is, by its terms, made applicable to the entire state where the conditions exist. The procedure to lay roads partly in one town and partly in another was an inconvenient and uncertain method. The commissioners of highways of each town laid out the part in the town to meet a road actually laid out through the adjoining town or proposed to he laid out therein. There were separate appeals from each order with a possible conflict in the result of the separate appeals. The limitation of the act to continue where there is an adjoining city of 1,000,000 of inhabitants or over, does not make the act otherwise general, a local act. It still applies to the whole state where any county in it adjoins so large a city. People ex rel., v. Squire, 107 N. Y., 593 ; 6 St. Rep., 281.

An act embracing all things of a certain class is a general and not a local act, although by reason of a limitation based on population only a single locality can receive its benefits. Ferguson v. Ross, 126 N. Y., 459 ; 37 St. Rep., 836; Matter of N. Y. Elevated R. R. Co., 70 N. Y., 328.

Under these cases the act in question does not conflict with § 18 of article 8 of the constitution of the state which prohibits the passage of a local act laying out roads.

Judgment should, therefore, be given for the plaintiff upon the submitted case.


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    Charles S. Clark, Resp’t, v. The Exchange Printing Co. et al., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December1 1, 1893.)

    Fraud—Liability.
    Where an insolvent company orders goods, with the assent of its creditor, so that the latter may levy upon them, who does in fact profit thereby, such creditor is liable to the vendor therefor.
    Appeal from a judgment and order denying a motion for a new trial.

      Charles DeHart Brower, for app’lt Exchange Printing Co.; Marh L. Wilbur, for app’lt Francis E. Fitch ; John Vincent, for app’lt Alva E. Davis; Frederick A. Ward, for resp’t.
   Barnard, P. J.

The plaintiff is a dealer in paper. The defendant Printing Company printed and published the American Magazine for the American Magazine Company. The defendant Davis was the manager of the American Magazine Company. The defendant Pitch was the manager of the Exchange Printing Company and made orders for paper with the assent of the Magazine Publishing Company, which became insolvent with a large debt due to the defendant Printing Company. The plaintiff’s case is based upon the allegations that after the insolvency of the Magazine Publishing Company, the Exchange Printing Company and Fitch its manager and Davis manager of the bankrupt Magazine Publishing Company continued to order and obtain of the plaintiff a large amount of paper so that the defendant printing company could levy upon it on account of the indebtedness to it from the Magazine Publishing Company. The jury has found that the defendants did this and returned a verdict for the amount of the property acquired in this way and for this purpose. It was proven that defendant Davis knew of the insolvency of the Magazine Company when he ordered the paper in question. Fitch knew it. The Exchange Company profited by it. The testimony is quite voluminous, but is sufficient to support the verdict of the jury. The bankrupt magazine sold to the printing company Clark’s paper obtained for the magazine and then ordered new paper, with the printing company’s consent, to he seized under execution in its favor.

The proceedings to obtain judgment by the Printing Company were conducted by an attorney common to all the parties and companies. Marks of secrecy and design to defraud the plaintiff are visible everywhere.

The jury aimed at a proper conclusion upon the facts and, therefore, the judgment and order, denying new trial should be affirmed with costs.


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    The People ex rel. Joseph H. Rudiger, App’lt, v. Frederick Earl et al., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.

    Villages—Mt. Vernon.
    By the appointment of a new commission, under § 20, chap. 544 of 1887, the report of a former commission is abrogated, and the only way to proceed legally is through the new commission or by successive commissions, until a satisfactory result is reached.

      Robert P. Getty, Jr., for app’lt; David Swits, for resp’t
   Barnard, P. J.

The full record of the proceedings which proceeded the appointment of commissioners to assess the cost of improving Sixth street in the village of Mt. Vernon are not returned. The regularity of the appointment of commissioners Adee Pendergrast and Toumine must be assumed. They were required to take an oath that they would fully and faithfully discharge the duty devolved upon each of them by the appointment. They did take such oath and the appointment was complete. The first report was disapproved of by the trustees and sent back for correction. This was proper and according to chapter 544, Laws of 1887, § 20. A second and corrected report was made and returned to the trustees. This report was unsatisfactory to the trastees and a new commission was appointed. This was in accordance with legislative power given by § 20 to 11 send back to the same or other commission.” The new commission made an appraisal and the trustees refused to confirm this appraisal; vacated the appointment of the new commission and adopted the second report and appointment of the first commission. By the appointment of the new commission the second report of the first commission was abrogated and the only way to pursue legally was through the new commission or by successive commissions until a satisfactory result was reached.

The proceedings should, therefore, be reversed, with costs and disbursements.


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    The People ex rel. Mary K. Burton, App’lt, v. Frederick Earl et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

      Robert P. Getty, Jr., for app’lt; David Sivits, for respis.
   Barnard, P. J.

The assessment must be reversed under the stipulation of the parties to the appeal that this appeal abide the result of the case of the People ex rel. Rudiger v. Earl and others, and on the same defense.