text:
    Ella B. Tabor, App’lt, v. Edward L. Tabor, Resp’t.

      (New York Superior Court,

      General Term,

      Filed December 14, 1891.)

    Dismissal of complaint—Failure to prosecute.
    An action for separation was not noticed for trial nor placed on the calendar for seven months, younger issues being tried in the meantime. Defendant was in jail during that time, having been surrendered by the sureties on his bond given in ne exeat proceedings. Plaintiff claimed that she had no means to prosecute the action, as defendant had not paid the alimony ordered. Held, that it was discretionary with the court whether to grant a motion to dismiss and to impose such terms as it deemed proper, and that an order directing a dismissal unless plaintiff try the action at the next circuit was proper.
    Appeal from an order granting defendant’s motion to dismiss the complaint for neglect to prosecute, unless the plaintiff notices the cause for trial at the December term and proceeds with the trial.

      Edward Grosse, for app’lt; Isaac Y Miller, for resp’t.
   Gildersleeve, J.

This action was for a separation, and was begun on March 26, 1891. The defendant was arrested on that day, on affidavits setting forth his alleged intention of leaving the state. He was held to bail, and subsequently surrendered by his bondsmen, on the 29th day of April, 1891, to the custody of the sheriff; since which time he has been in Ludlow Street Jail. The answer was served on' the 16th of April, 1891, and the plaintiff, after obtaining a number of extensions, served a reply on the 2d day of July. The case was not noticed for trial, nor placed upon the calendar for the October or November terms, and younger issues had been tried in their regular order on the special term calendar of this court before this motion to dismiss was made.

The plaintiff gave, as a reason for her neglect to bring the action to trial, the fact that the defendant has neglected to comply with the order of the court requiring him to pay alimony and counsel fee, and that she has not the means to prosecute her action. The learned counsel for the plaintiff urges in his brief that the defendant, being in contempt for non-payment of aljmony due April 20th, was not in a position to move to dismiss the complaint. This position cannot be maintained. The defendant is in custody because he was surrendered .by the bondsmen who became his surety at the time of his arrest upon the ground, as was alleged, that it was defendant’s intention to leave the state. He is not imprisoned for contempt of court, as no proceedings have been taken to punish him for contempt.

The motion herein, therefore, presented the usual questions arising upon motions to dismiss for want of prosecution, with the aggravated circumstance in favor of the moving party that he had-been seven months in prison, with a strong probability of being obliged to remain there for the balance of his life, unless relieved by the trial and determination of this action.

Section 822 of the Code provides that “where the plaintiff unreasonably neglects to proceed in the action against the defendant, or one or more defendants, against whom a separate judgment may be taken, the court may, in its descretion, upon the application of the defendant or defendants, or any of them, against whom he so neglects to proceed, dismiss the complaint as against the moving party or parties, and render judgment accordingly.” Rule 36 of the General Rules of Practice provides that defendant may make the motion to dismiss, under said § 822 of the Code, “ at any time after younger issues shall have been tried in their regular order ” ; and it further provides that “ if it be made to appear to the court that the neglect of the plaintiff to bring the action to trial has not been unreasonable, the court may permit the plaintiff, on such terms as may be just, to bring the said action to trial at a future term or circuit.”

This section of the Code, supplemented by this rule, makes it discretionary with the court to grant or refuse the motion, and to impose such terms as it thinks proper and an appellate tribunal will interfere only when the discretion has been abused or improperly exercised. See James v. Shea, Supreme Court, General Term, First Department, Davis, P. J., 2 Civ. Pro., 358.

In the case at bar we do not think that the special term either abused or improperly exercised its discretion. °

The order appealed from is modified by allowing plaintiff to notice the cause for the January term, instead of the December term, as provided in the order, and thus modified is affirmed, with ten dollars costs.

MoAdam, J., concurs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    William H. Crossman et al., Resp’ts, v. The Universal Rubber Co., App’lt.

      (New York Superior Court,

      General Term,

      Filed December 14, 1891.)

    Bah—Action in foreign jurisdiction.
    _ Plaintiff attached proper'yof defendant in New Jersey and brought action there to disaffirm the sale of g -ads to it, offering to surrender the notes received therefor, but nothing was recovered therein. Held, that the pendency of such action was not a bar to an action in this state on one of the notes.
    Appeal from judgment entered on verdict directed by trial judge in favor of the plaintiffs, and from an order denying a motion made upon the judge’s minutes for a new trial.

      .Estes, Barnard & Tiffany, for app’lt; Norwood & Coggeshall, for resp’ts.
   Per Curiam.

While a double satisfaction is not allowed, concurrent cumulative remedies are not in all cases forbidden. The ground upon which courts proceed in abating a subsequent suit upon the ground of pendency of a former one between the same •parties and for the same cause is that the subsequent suit is unnecessary, and, therefore, vexatious. This is not the case here. The suits were in different jurisdictions, one being in the courts of New Jersey. The circumstances seem to have justified both. No .application seems to have been made either to stay the proceedings in the foreign jurisdiction or those pending here. The pleadings are the same as they were on the former trial of this case, which resulted in a direction for the defendant on the theory of election of remedies.

The court of appeals in reversing that judgment (see decision reported in 87 St. Rep., 230; Book XIII, Lawyers’ Reports, p. 91) settled the law of the case, and the trial judge, upon the second trial, acted in harmony with the views expressed by our .appellate tribunal when he directed a verdict in favor of the plaintiffs. It follows that the judgment and order appealed from must be affirmed, with costs.

Freedman, Me Ad am and Gtldersleeve, JJ., concur.


author: Dykman, J.

text:
    The New York Central & Hudson River R. R. Co., App’lt, v. Thomas Aldridge, Resp’t (4 cases).

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Ejectment—Railroad—Land grant.
    The New York Central & Hudson River R..R. Co. cannot be regarded as an adjacent owner within the meaning of the statutes respecting grants of land under water, and cannot maintain ejectment by virtue of such a grant against the owner of the upland.
    Appeal from judgment for the defendant upon trial before the ■court without a jury, March 21, 1891.
    The action is ejectment and is brought with other similar actions to recover from the defendant various parcels of land at Dutchess Junction, used and occupied by the defendant and his tenants in ■connection with their different brick yards, the several parcels being indicated upon the map attached to the case, lettered from 'A to K. The defendants acquiesced in the plaintiff’s title to seven of these parcels, viz., C, B, G, F, H, J and. K, and how occupy them under a lease from the plaintiff, leaving in dispute only parcels A, D, E and I.
    The plaintiff succeeded to the rights of the Hudson River Railroad Company.
    Thomas Aldridge, claiming to be the adjacent owner of the upland, filed a petition prior to May 14, 1867, with the commissioners of the land office of the state of New York, praying for a grant of the land under water adjacent to his upland. This application was opposed by the Hudson River Railroad Company.
    On the 5th day of May, 1869, the grant for the lands under water was issued to defendant by the commissioners of the land office. The grant contains the following reservation : “ Subject to all rights and privileges in and to said premises or any part thereof which the Hudson River Railroad Company may have acquired under its charter.”
    The land described in this grant is the land in contention in these several actions. Portions of the land under water were filled in before the grant was obtained. A dock was built along the whole front, the most of it twenty years ago. The plaintiff never filled in beyond its west retaining wall.
    In the months of September and December, 1868, the plaintiff made maps amending the lines of its original location and filed the same in the Dutchess county clerk’s office. This was done by the plaintiff while the defendant’s application for land was pending before the 'commissioners of the land office. By the filing of these maps the plaintiff claims to have acquired the title to the land under wafer within the lines of said maps.
    On the 26th day of December, 1873, the plaintiff obtained a grant for lands under water along the front of the defendant’s upland and 121 feet westerly from the centre line of said railroad, from the commissioners of the land office of the state of Hew York.
    This grant conveyed the lands under water within the lines of the amended location.

      Wilkinson & Cossum {Robt. F. Wilkinson and Milton A. Fowler of counsel), for app’lt; H. H. Hustis, for resp’t.
   Dykman, J.

If the doctrine enunciated by the court of appeals in the case of Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 423; 23 St. Bep., 928, is to have its full force and operation, and is to be followed to its legitimate conclusion and result it will require the affirmance of this judgment.

In that case it was held to have been the intention of the legislature in the passage of the law of 1846, incorporating the Hudson Biver Bailroad Company and authorizing the construction of its railroad along the east shore of the Hudson river, to protect the upland owners along that shore in their access to the waters of the river, and to maintain their rights in the river unimpaired by the construction of the railroad, and that it did. not change the policy of the state with reference to the promotion of commerce on the river or deprive the commissioners of the land office of the power to make grants of land under water to the owners of the uplands.

In the elaboration of the principle thus expressed in the condensed head note it was said substantially that the railroad company cannot be regarded as an adjacent owner within the meaning of the statutes respecting water grants and has no capacity to acquire land for any purpose except such as are defined in its charter.

It was also further said in substance that the capacity of the railroad company to deal with the lands it acquired was a limited one, and insufficient to enable it to use such land for the purpose of promoting the commerce of the state upon the river; that the corporation does not come within the class of persons .named in the acts relating to water grants, and cannot be a grantee of state lands for the purposes named in those statutes.

In relation to chapter 283 of the Laws of 1850, which provides that no grant shall be made by the commissioners of the land office which will interfere with the rights of the Hudson Biver Railroad Company, it was said the act could have application only to grants made to an owner whose shore line is east of the railroad, as no other grants could interfere with the rights of the railroad company.

And it was said that even that statute implied a power to make such grants, because it contemplated a grant of land under water, west of the railroad, to a proprietor whose upland is east of the railroad, which will be valid if the rights of the railroad company are protected.

The action reported in the 114th of the New York Reports was brought to restrain the railroad company from operating its road over the lands granted to the plaintiff by the state lying under water, but there was another action commenced by the same plaintiff against the same defendant to recover damages for the obstruction of the plaintiff’s mode of access to the Hudson river, and that action went also to the court of appeals, and was heard in the first division.

The plaintiff was defeated in the lower court, and as the decision of the case depended upon the same questions as the other suit between the same parties, they were again presented to the first division, and the judgment was reversed upon the authority of Rumsey v. The Railroad Company, 114 N. Y., 423; 23 St. Rep., 928, and the opinion in that case was fully sustained and its doctrines reiterated.

.This last decision is reported in 125 N. Y, 681, but the opinion is not printed. It is printed, however, in 34 St. Rep., 454.

Since the foregoing was written, the injunction suit of Rumsey v. The Railroad Company has been decided again by the second division of the court of appeals, and the former decisions are both sustained. Rumsey v. The Railroad Company, 40 St. Rep., 583.

Besides adhering to the former decisions, the court determined some other questions against the defendant in favor of land grants to the original upland proprietors, which will restrict the use of lands acquired by the Hudson River Railroad Company to the purposes contemplated by the charter of that corporation.

The foregoing views cannot be reconciled with the claim of the plaintiff in this action, and require the affirmance of the judgments, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Pratt, J.

text:
    William G. Slater et al., App’lts, v. Hannah McGuire, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Dismissal oe complaint—Contract—Married women.
    In an action against a married woman for erecting a building on her land, there was proof that her husband made the contract; that the plans were altered to suit her and that she personally directed the work. She testified that her husband contracted without her authority and against her will. Held, that a dismissal of the complaint was error, as the jury might disregard defendant’s testimony.
    Appeal from a judgment of nonsuit ordered by Justice Barnard, and an order denying a motion for a new trial upon the minutes.

      The action was brought to recover a balance of $1,473, with interest from April 1, 1888, due the plaintiffs under a written contract, set out in the complaint, between William McGuire (the husband of the defendant), owner, and these plaintiffs. In fact William McGuire, who was insolvent, was not the owner of the land, as he represented himself to be in the contract, but the defendant Hannah McGuire was the owner, as admitted in defendant’s answer. The complaint alleges that William McGuire was at the time of making such contract the husband and agent of the defendant, and as such contracted with the plaintiffs.
    At the close of the testimony the Court ordered a nonsuit, for the reason that it was not shown that William McGuire was acting for his wife, the defendant, nor with her assent or authority, ■or upon her credit or responsibility. The plaintiffs asked to go to the jury upon the whole case.
    Motion denied and plaintiffs except.

      Daniel Haight, for app’lts; Norman A. Lawlor, for resp’t.
   Pratt, J.

The motion for nonsuit at close of plaintiff’s case was properly denied.

The plaintiff had proved that the plans of the house were prepared to suit the defendant, numerous alterations being made for that purpose ; and that she personally directed the erection of the house, her presence being almost constant.

The testimony was ample to justify the jury in finding that the husband acted for the wife with full authority, in contracting, and the proof would abundantly sustain a finding that the act of the husband in making the contract was ratified by the wife; if any doubt existed as to the original authority.

Thereafter the defendant testified in her own behalf to the effect that her husband contracted without her authority and against her will.

The circuit judge then dismissed the complaint upon the ground, apparently, that her testimony not being contradicted must be taken as true.

This we think was error. The defendant being a party in interest, the jury might disregard her testimony if it was judged unworthy of belief. It was not reconcilable with that of other witnesses, of whom one at least was not interested in the action.

The jury might hesitate to believe that defendant’s disapproval of the building could have been successfully concealed during the considerable time required for the erection.

A new trial should be ordered; costs to abide event.

Dykman, J., concurs; Babnabd, P. J., not sitting.


author: Barnard, P. J.

text:
    Frank McNally et al., Pl’ffs, v. The Phenix Insurance Co. of Brooklyn, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Insurance (Fire)—Premature action.
    On June 17, 1885, proofs of loss by fire were served on the insurer, which did not contain a magistrate’s certificate and the same were rejected. On June 7, 1886, proofs of loss and the. certificate were served and this action commenced the same day. Held, that as the company had sixty days after proofs of loss in which to pay, the action was prematurely brought.
    Exceptions directed to be heard at general term in the first instance after dismissal of complaint ordered at the close of plaintiffs’ testimony.

      Carpenter & Roderick, for pl’ffs; James & Thomas H. Troy, for def’t.
   Barnard, P. J.

This action is based upon a policy of insurance issued by defendant to the plaintiffs. The application dc- • scribed the property as “used as a storage ice house.” The policy which was issued on May 2,1885, describes the property as “occupied as a storage ice house." The building was destroyed by fire, June 7, 1885. On the 8th of June, 1885, the company without knowledge of the fire gave a consent that the loss be paid to the mortgagee who held a mortgage on the property. On the 17th of June, 1885, preliminary loss papers were served. The premises were never occupied as a storage ice house or used as such. It was new and partly completed at date of policy. No certificate of a justice of the peace accompanied the loss papers. The loss papers were rejected by the company, and on June 7, 1886, this certificate of the justice was served with other loss papers. The action was commenced the same day. By the policy sixty days are given before the loss is payable after the full and complete loss papers are served. The action is therefore prematurely brought.

The exceptions should therefore be overruled and judgment given for defendant, with costs.

Dykman and Pratt, JJ., concur.


text:
    The People ex rel. The Trustees of the Village of Jamaica et al. v. The Board of Supervisors of Queens Co.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Highways—Supebyisobs—Cbbtiobabi.
    The power of a board of supervisors to pass an act for the improvement of roads in a town is reviewable on certiorari.

    2. Same—Laws 1869, chap. 855.
    Under § 2, of chap. 855, Laws 1869, the board of supervisors has power to authorize the improvement of highways in a town, and the issuing of bonds therefor, upon a vote of two-thirds of the board, including” the affirmative vote of the supervisor of the town, without the consent of the town officers. The fact that a village is within the town is immaterial, as the power of the board includes the roads in such village.
    Certiorari to review action of the board of supervisors in passing an act providing for the improvement of public highways in the town of Jamaica, and authorizing the issue of bonds for that purpose.

      A.N. Weller, for relators; Francis FI. YanYechten, for def’t.
   Barnard, P. J.

The board of supervisors of Queens county on the 25th of May, 1891. enacted that certain streets and highways in the town of Jamaica be improved, and that an issue of bonds to the amount of $400,000 be issued by the county of Queens for the purpose of defraying the expense. These bonds were to pay principal and interest out of the taxable property of Jamaica. The interest was payable semi-annually, and the principal in 1921. The village of Jamaica is entirely situated within the limits of the town of Jamaica, and was incorporated by the legislature by chapter 168, Laws of 1814. By this charter and the amendments thereto the village is made a separate road district, and placed under the control of the trustees of the village with the powers of commissioners of highways. The supervisors direct the improvement of roads as well in the town as in the village. The trustees of the village and certain taxpayers of the town obtained a writ of certiorari to review the power of the board of supervisors to pass the act in question. This is the proper remedy. The writ in such a case was given at common law, and the statutes have not taken it away. Section 2124 of the Code continues the common law writ. The court of appeals have acknowledged the scope of the writ to embrace assessors. People v. Assessors, 39 N. Y, 81.

The jurisdiction of the board of supervisors is subject to review by this writ. People v. Queens County Supervisors, 82 N. Y., 275.

The important question is whether the supervisors had the power to make the. record. The power is claimed to be conferred by chap. 855, Laws of 1869. By the first section of this act the power to issue bonds on the credit of a town is to be exercised with the consent of the town officers. ISTo such consent was obtained. By the second section of this act certain powers are given to boards of supervisors on a two-third vote of the board, which, includes the affirmative vote of the town supervisor. This was obtained. The scope of this second section has been passed upon by the court of appeals in the case of The People v. Supervisors of Queens County, 112 N. Y., 585; 21 St. Rep., 771.

The court says that the exercise of the power under the second section is free from the restriction contained in the first section, so that a vote of two-thirds of the supervisors with the affirmative vote of the supervisor of the town affected by the vote is all that is needed. This second section provides for the improvement of public highways laid out in pursuance of law. If the power is given no extravagance in its exercise by the legal tribunal to which the power is given will give this court any right of review. The fact that the village is within the town has no relevancy. If the legislature gives the power generally over all roads in a town, it includes roads in the village. People ex rel. Morrell v. Queens Co. Supervisors, 48 Hun, 324; 15 St. Rep., 860.

Where the power to compel the debt exists the power to postpone the payment of the principal exists with it. People ex rel. etc., v. Flagg, 46 N. Y., 401.

The second section gives no express power to bind the county or town, but this is implied in the duty or authority given. Mayor, etc., v. Sands, 105 N. Y., 210; 7 St. Rep., 337.

The act of the supervisors should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Oliver Downs, App'lt, v. Maria Wells et al., Adm’rs, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Limitation—Negotiable paper—Death of maker.
    One T. made a note to defendant’s intestate in which he, plaintiff and others were interested, and died in 1871. Intestate died in 1883. In an action to recover plaintiff’s share of the note, Feld, that if intestate owed plaintiff anything it should have been collected seven and a half years after his death, and that the action was barred by the statute of limitations.
    Motion for reargumept.
    Action to recover plaintiff’s share of a note given to defendant’s intestate by one Tuthill. The facts appear in former report in 39 St. Rep., 40.

      Daniel W. Reeve, for motion ; Payne & Benjamin, opposed.
   Pratt, J.

We do not think there is any merit in this motion or in the case in which it is made.

If Benjamin Wells owed plaintiff anything we think it should have been collected seven years and six months after his death. 115 N. Y.,'85 ; 23 St. Rep., 604.

The case, under all the facts and circumstances, was, we think, properly decided, and the motion for a reargument must be denied, but without costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Eliza J. White, Adm’rx, App’lt, v. The New York Central & Hudson River R. R. Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Negligence—Railroads.
    Plaintiff’s intestate was at defendant’s station and attempted to cross the tracks immediately after a train passed, when he was killed by a train passing in the opposite direction which was behind time. The regular crossing was blocked by a train. The trains did not stop but passed at a high rate of speed, and there was proof that no warning was given. Feld, that the question of negligence was one for the jury.
    Appeal from judgment in favor of defendant dismissing the complaint.
    This action was brought to recover $5,000 damages for the alleged negligent killing of plaintiff’s intestate, her husband, John White, at the Woodlawn station on the Harlem division of the defendant’s railroad, on the 3d day of October, 1889.

      Norman A. Lawlor, for app’lt; Frank Loomis (D. W. Tears, of counsel) for resp’t.
   Barnard, P. J.

The evidence shows that the plaintiff’s intestate was standing on the platform of the defendant’s railroad at Woodlawn in Westchester county, with milk cans in his hand. The platform, was crowded, and a train on the New Haven road passed south. Immediately after the passage of this train a train on the New York & Harlem railroad passed in an opposite direction. The deceased attempted to pass over the track as soon as the New Haven train passed, and was killed by the Pawlings express on the Harlem road. There was a regular railroad crossing over a highway at the end of the station, but that was blocked by one of defendant’s trains standing still. Neither of the trains stopped, but went through the station grounds at a high rate of speed. There was proof given tending to show that the bell of the engine was not sounded on either train, nor whistle blown. The place where White, the deceased, crossed was one sometimes used and was the most available when the' highway crossing was blocked up. The case was one for the jury. The rate of speed through the village, the crowded station, the blocked highway, the failure to give any warning of the approach of the trains, the fact that the Pawlings express train was ten minutes late, are facts to go to a jury upon the question of the defendant’s negligence. The case is not so strong as the case of Thompson v. The New York Central & Hudson River R. R. Co., 110 N. Y., 636; 16 St. Rep., 869.

.The exceptions should be sustained and a new trial granted, costs to abide event.

Dykmah and Pratt, JJ., concur.


text:
    In the Matter of the Application of Rosalia Whitmore, Resp’t, v. The Village of Tarrytown, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Villages—Liability fob trespass.
    To render a village liable for a trespass it is not necessary that there should have been a resolution of the board of trustees directing the acts complained of. It is sufficient that the acts were openly done by an officer of the village, using its teams and employees.
    Appeal from order appointing commissioners herein to assess damages for the alleged change of grade of a public street in the village of Tarrytown, and from the judgment entered upon the confirmation of the report of said commissioners, awarding $1,000 damages against said village, and from the order of Justice Dylcman confirming said report and from the report of said commissioners.
    Prom plaintiff’s fence to the original roadbed of the street there was sloping bank which was twelve feet high at the fence line. In widening the roadbed the commissioner and his workmen cut away this bank and undermined the fence so that in some places it fell.
    Defendant disclaimed liabitity on the ground that no resolution had been passed authorizing such disturbance of the bank or street.

      George C. Andrews, for app’lt.; Wilson Brown, Jr., for resp’t.
   Pratt, J.

The appellant urges that as no resolution of the village board of trustees is shown directing the acts complained of, the village officers must be held to have acted in their individual capacity and be liable as for an individual trespass, and that the village cannot be held liable.

We find no authority that requires such strictness, and we are not able to see that it is necessary for the protection of villages.

In the case at bar the change in the road was made by the village road commissioners, and the village teams and employees under his control.

The acts were done in the most open manner, and continued through years. The knowledge of the trustees might well be presumed.

The court at special term and the commissioner found as a fact that the village authorized the work, and the finding- was clearly correct.

The estimate of damage is extremely moderate, and the judgment should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Mary B. Van Cleaf, Resp’t, v. Catharine Burns et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Dower—Divorce.
    Where it is made to appear that a judgment of divorce lawfully granted in another state has the effect to deprive the defendant therein of dower in that state, it should he permitted the same operation in this state.
    Appeal from judgment in favor of plaintiff.
    Action to recover dower in land in the city of Brooklyn, of which David Yan Cleaf, deceased, was seized while the husband of the respondent.
    The said David Yan Cleaf, being seized of the premises and residing in Illinois, brought an action against his wife (the re: spondent) for a divorce on the ground that she had wilfully deserted and absented herself from him. The wife was then a resident- of this state, but she appeared and answered in that action, and judgment was recovered by him, dissolving the marriage between the parties. It is also found that the court in Illinois had jurisdiction of the subject-matter of the action and of the parties.
    The statute of Illinois, proved on the second trial of this action, is as follows:
    “ If any husband or wife is divorced for the fault or misconduct of the other, except where the marriage was void from the beginning, he or she shall not thereby lose dower nor the benefit of any such jointure; but if such divorce shall be for his or her own fault or misconduct, such dower or jointure and any estate granted by the laws of this state in the real or personal estate of the other shall be forfeited.”

      Josiah T. Marean, for app’lt; John JET. Kernble, for resp’t.
   Dykman, J.

We think this judgment in favor of the plaintiff should be reversed.

By the case as it is now presented it expressly appears that the judgment of divorce granted by the court in the state of Illinois has the effect to deprive the plaintiff of dower in that state, and the case is thus free from the decision of the court of appeals.

In the opinion of that court it was said: “No misconduct other than adultery is here permitted to deprive a wife of existing dower rights, even if it be the basis of a judgment of divorce lawfully rendered in another state, unless it expressly appears that such judgment has that effect in the jurisdiction where it was rendered, and as to that we express no opinion.”

As, therefore, the judgment of divorce has the effect to deprive the plaintiff of dower in the state of Illinois, the jurisdiction where the judgment was rendered, we think it should be permitted the same operation in this state.

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

Barnard, P. J., and Pratt, J., concur.


text:
    Amanda Paddock and Edward Paddock, App’lts, v. Hannah Speidel and Martin Speidel, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Slander—Pleading.
    A complaint for slander by two plaintiffs against two defendants which alleges that one of the latter used defamatory words against one of the plaintiffs, but contains no allegation that either the defendants or the plaintiffs are husband and wife, fails to state a cause of action.
    Appead from order sustaining demurrer to complaint, with leave to amend.
    Action for slander. The complaint was as follows :

      First. That the parties herein are residents of the village of Port Jervis, Orange county, N. Y.

      Second. The plaintiff, Amanda Paddock, alleges for a cause of action against the defendant that on or about the 31st day of March, 1891, that the defendant herein, Hannah Speidel, wickedly and maliciously intending to injure the plaintiff and her good name, fame and credit and to bring her into public scandal, infamy and disrepute with and amongst all her neighbors and other good and worthy citizens, and to cause it to be suspected and believed by the neighbors and citizens that the plaintiff has been and was guilty of the offenses and misdemeanors hereinafter mentioned to have been made and charged upon her by said defendant ; did at the time aforesaid at Port Jervis, N. Y, and in the presence and hearing of divers good and worthy citizens, falsely and maliciously speak and declare of the said plaintiff, Amanda Paddock, the false and scandalous, malicious and defamatory words following: That is to say, that the plaintiff, Amanda Paddock, was a common thief and stole a bottle of liquor from some person in said neighborhood. Further that said plaintiff, Amanda Paddock, was a common whore and laid at a house of prostitutian in the village of Port Jervis with anyone who would give her fifty cents.

      Third. That by reason of the commission of which said several grievances by the said defendant as aforesaid, the said plaintiff has been and still is greatly injured in her good name and brought into public scandal, infamy and disgrace with and among all her neighbors and other good and worthy citizens, to the damage of the plaintiff of $1,000.
    Wherefore the defendant demands judgment for $1,000, besides the costs and disbursements of this action.
    Defendants demurred on the ground of misjoinder of parties, both plaintiff and defendant, and that there were not facts sufficient to constitute a cause of action against both defendants.

      Wilton Bennet, for app’lts; Amos Van Etten, for resp’ts.
   Dykman, J.

Two persons commenced an action of slander against two other persons, and in the complaint alleged that one of the defendants had used defamatory words against one of the plaintiffs.

There was no allegation that either the plaintiffs or the defendants were husband and wife, and both of the defendants demurred to the complaint for a misjoinder of parties and that the complaint did not state a cause of action in favor of the plaintiffs against the defendants.

The demurrers were sustained at the special term and the plaintiffs have appealed from the order sustaining the demurrer.

It requires no argument to show that the complaint fails tosíate a cause of action, and the orders appealed from should be affirmed, with costs and disbursements.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Henry W. Thomas, Adm’r, Resp’t, v. Gerd. H. Henjes, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Keeper op pier.
    The keepers of a pier upon navigable waters owe a duty to keep it in a safe condition.
    3. Same.
    Defendant and one W. owned adjoining docks, and upon W.’s dock was a derrick which was used in unloading boats at defendant's dock. The proof was conflicting as to whether defendant was in possession thereof. Plaintiff’s son, who was a boatman upon a boat fastened to defendant’s dock, was killed by the fall of the mast of the derrick. Held, that if defendant either erected or was in possession of the derrick and it was dangerous, and while not in use fell and killed plaintiff’s intestate, these-facts would sustain a finding of negligence.
    Appeal from judgment in favor of plaintiff entered upon verdict, and from order denying motion for a new trial on the minutes.
    This action was brought by the plaintiff as admiúistrator of his son, Samuel B. Thomas, to recover damages against the defendant for his alleged negligence.

      Hubbard & Rushmore and John D. Pray, for app’lt; G Fergueson, Jr. (James G Church, of counsel), for resp’t.
   Barnard, P. J.

The defendant and one West own docks adjoining each other on Gravesend bay. There was a derrick erected on the West part of the docks, but it was used in unloading boats at the Hen jes dock. The defendant leased to Morrissey the privilege of unloading at his dock. The plaintiff’s intestate was a boatman employed on the barge Carrie loaded with stones, made fast to the dock. The cabin was nearly opposite the mast of the derrick. Some question was made whether the stone barge was tied to the derrick. The plaintiff produced evidence to the contrary, and showing that the barge was tied to the tie pile on the dock. The barge commenced unloading on the 20th day of June, 1890, using its own derrick. In the evening the deceased went out of the cabin of the barge, and the mast of the derrick and its appurtenances fell and killed him. The mast was insufficient and dangerous. It was made a question on the trial whether or not the defendant was in possession of the derrick. The Bensonhurst Club occupied a portion of the West dock, but proof was given tending to show that the defendant was in possession of the derrick in connection with his own dock. This occupancy of defendant was found by the jury in a conflict of testimony. The derrick was erected by the defendant’s son, but proof was given tending to show that the use of the dock, including derrick, was carried on for the defendant’s benefit. This question also was found in favor of the plaintiff.

Assuming that the defendant either erected or was in possession of the derrick on the dock, and that it was dangerous, and while not in use it fell and killed the plaintiff’s intestate, these facts will sustain a finding of negligence. The keepers of a pier upon navigable waters owe a duty to keep it in safe condition. Swords v. Edgar, 59 N. Y., 28.

The defendant was owner and occupant of the derrick, and it is a question whether he did not actually construct it.

The deceased was guilty of no contributory negligence. He had the right to assume the safety of the structure without an examination, and the fact averred by defendant that the barge was tied to the derrick is found in his, plaintiff’s, favor upon conflicting evidence.

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

Dykman and Pratt, JJ., concur.


author: Daly, Ch. J.

text:
    Horton, App’lt, v. Boyle et al, Resp’ts.

      (New York Common Pleas,

      General Term,

      Filed December 7, 1891.)

    Appeal—Dismissal.
    Plaintiff appealed from a judgment dismissing the complaint, with costs, but thereafter paid the judgment and served notice of withdrawal, but did not tender costs therewith. On a subsequent motion to dismiss, he asked until the next term to prepare the appeal papers. Held, that the appeal was properly dismissed ; that if he desired to prosecute the appeal he should have proceeded with diligence.

      Motion to dismiss appeal

      Joseph M. Williams, opposed; De Witt C. Morrell, for motion.
   Daly, Ch. J.

This case was tried April 10,' 1891, and the complaint dismissed. Notice of appeal was served May 12th. After several motions, one for further time to make case, another for stay of proceedings, and another to set aside the judgment, which were denied, appellant on September 12th gave notice of withdrawal of appeal under instructions from his client (who had paid the judgment for costs) to proceed no further. But costs were not tendered with such notice of withdrawal and respondent gave notice of argument, and has now served notice of motion to dismiss the appeal. The appellant seems to have no answer to the motion, but asks until next term to prepare his appeal papers. In view of the fact that he has never prepared a case, there does not appear to be any good faith in the application. If he desired to prosecute an appeal he should have proceeded with some diligence.

Motion granted, with ten dollars costs.

Bischoff, J, concurs.


author: Pryor, J.

text:
    Annie Sugarman, Resp’t, v. The Manhattan Elevated R. Co., App’lt.

      (New York Common Pleas,

      General Term,

      Filed December 7, 1891.)

    1. Negligence—Railroad.
    Plaintiffs awning was set on fire by a coal of fire almost as large as a walnut, emitted from one of defendant’s engines. Defendant’s evidence showed that the apparatus of the engines for preventing the escape of fire were of the most approved path rn, and that orders were issued for frequent examination and reparation, which were habitually carried out; but no evidence was given as to this particular engine. The evidence showed that the engines frequently emitted large sparks and that the ash pans, had openings in the side through which coals might fall. Held, that the conclusion of the court that defendant’s negligence caused the fire was not such error as to call for reversal.
    2. Same—Contributory.
    Plaintiff, on seeing the fire, became frightened and ran away without trying to extinguish it. It was not shown, however, that she could have prevented it. Held, that negligence was not predicable of an instinctive effort to escape impending peril, and, at most, the question of contributory negligence was one for the jury.
    Appeal from judgment of a justice’s court.
    Action to recover for the burning of plaintiff’s awning by defendant. The awning was set on fire by a spark from the engine of defendant’s passing train.

      Charles Caldiuell, for resp’t; Byron Traver, "for app’lt
   Pryor, J.

It is requisite to the tortious character of an act that it be either voluntary or negligent. Here the act was involuntary and unintentional; and the question, therefore, is whether it was the effect of negligence.

Upon plaintiff’s proof it appeared that the awning was burnt by a spark or coal of fire emitted from the defendant’s engine ; that the spark or coal .was large; “ almost as large as a walnut.” This evidence was sufficient prima facie proof of defendant’s negligence, McNaier v. R. R. Co., 46 Hun, 502; 12 St. Rep., 562; Field v. R. R. Co., 32 N. Y., 339; Ruppel v. R. R. Co., 13 Daly, 11; McCaig v. R. R. Co., 8 Hun, 599; Seybolt v. R. R. Co., 95 N. Y., 562; Piggot v. R. R. Co., 3 C. B., 229; Scolt v. London Docks Co., 3 H. & C., 596; Mullen v. St. John, 57 N. Y., 567.

Assuming this to be so, the appellant contends that the presumption of negligence was overcome by contrary proof; namely, that the apparatus of the engine for preventing the escape of fire was of the most approved pattern, that orders were issued for its frequent examination and prompt reparation; and that the instructions were habitually carried out. But no evidence was given as to the actual condition of the particular engine whence-issued the spark. It further appeared that defendant’s engines frequently emitted large sparks; that it was impossible for so large-a coal as the plaintiff described to have escaped from the engine had it been in proper condition; and that the ash pans had openings on the side through which coals might have fallen. Clearly a case of conflicting inferences was presented to the learned justice; and we cannot say that, in finding the negligence of the-defendant to have been the cause of the injury, he so erred in his conclusion as to warrant a reversal of the judgment. Mc Naier v. R. R. Co., 46 Hun, 502; 12 St. Rep. 562; Seybolt v. R. R. Co.. 95 N. Y., 562, 567.

But, assuming its negligence to have been the cause of the injury, defendant contends that it is relieved of liability by the contributory negligence of the plaintiff; who testifies that when she-saw the coal fall on the awning she became frightened and ran away without attempting to arrest or extinguish the fire. Conceding, for argument, that the principle of Hamilton v. Mc Pherson, 28 N. Y., 72, is applicable to the case, still, it is not apparent that the plaintiff could have prevented the fire, but the contrary rather, by the question she retorted upon defendant’s counsel. Moreover, it is the settled law of this state that negligence is not predicable of an instinctive effort to escape impending peril. At all events the question of contributory negligence was for the trial justice to solve; and we cannot say that he decided it wrongly. Fero v. R. R. Co., 22 N. Y., 209.

So, the judgment is affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


text:
    The Prudential Insurance Co. of America, App’lt, v. S. Allen Berger et al., Resp’ts.

      (New York Common Pleas,

      General Term,

      Filed December 7, 1891.)

    1. Bond—Liability of subety fob insurance agent.
    The bond of an insurance agent recited one of the clauses contained in the agreement of employment, but stated that the agent owed other duties under the agreement, and was conditioned that he should pay over to the company all moneys that should be due to it from him under said clause in said agreement “or otherwise.” Reid, that the liability of his surety was not limited to an indebtedness arising under said clause, but included all indebtedness of the agent, as such, to the company; and the measure thereof, within the limit of the penalty of the bond, is the same as that of the agent.
    2. Same.
    The surety is liable for an indebtedness of the agent which arose after the bond was executed, although in respect of insurance procured by him before its date.
    Appeal by plaintiff from a judgment rendered in the eighth judicial district court in plaintiff’s favor for $51.98 damages, with costs.
    Campbell, Hotchkiss & Reiley, for app’lt; L. J. Vorhaus, for resp’ts.
   Daly, Ch. J.

The defendant, Berger, was employed on January 13, 1890, as agent of the Prudential Insurance Company under a written agreement, and when he ceased to be employed by them on August 11, 1890, he .was indebted to the company in the sum of $202.18 upon the following account: •

Dr. Lapses as shown by lapse register............. $422 73
Special salary.............................. 84 71
Cash advanced to him,...................... 261 50
Moneys collected and not turned in........... 51 98
$820 92
Cr. New business..................... $581 50
Revivals......................... 1 10
Amount deducted from quarterly____ 36 14 618 74
Balance.................................. $202 18

The defendant Brown was the surety of Berger upon a bond for the faithful performance of the latter’s duties, given by them to the company on April 19, 1890, in the penal sum of $200, and this action was brought to recover the whole penalty of the bond. The justice held that the surety was liable only for $51.98, the item of “ moneys collected and not turned in,” and gave judgment accordingly.

The recital and condition of the bond are as follows:

“ Whereas, the said party first above-named has been appointed an agent of said company under an agreement with said company, containing, among other things, the following clause: ‘ That on Monday of each week I am to be debited with the amount of the weekly premiums shown on the life policy register, less the total amount of the weekly premiums on policies entered in the lapsed policy register for that week; and it is agreed that the company is not bound to prove that I have received the premium from each particular policyholder, but that the amount so shown shall be considered as being absolutely received by me on behalf of the company. This clause is not to be construed as a waiver of or interfering with any rights secured to the company by this agreement in any other respect; ’ and whereas the said agent owes various other duties to the said company under said agreement:
“ Now, the condition of this obligation is such that if the said party first above named shall faithfully perform all of his duties as such agent, and fully perform and keep his said agreement with said company, and account for and pay over to said company all moneys which he may receive for said company, or which shall be due to said company from him under said clause in said agreement or otherwise, and shall, upon the termination of his employment for said company, for whatever cause, deliver to said company all moneys, books, accounts, papers and •other property in his hands belonging to said company, or connected with or pertaining to said agency, to such person or persons as said company shall designate for the purpose, then this ■obligation shall be void; otherwise it shall be and remain in full force and virtue, it being expressly agreed and understood that said company may assign said agent to any district, and shall be at liberty to alter and vary the duties and emoluments of the said agent, and grant him indulgence without giving notice to the above obligors or impairing this obligation.”

Although one particular clause of the agent’s agreement is recited in the bond, yet it is also recited that the agent owes other duties to the company under said agreement, and the condition of the bond is that the agent shall pay over to the said company all moneys that sh9.ll be due to the said company from him under the said clause in said agreement, or otherwise. The defendant argues that the surety is liable only for such indebtedness as arises under clearly expressed provisions of the agreement referred to in the undertaking; but the language of the instrument forbids such a narrow interpretation. The obligation expressly includes all indebtedness of the agent, as such, to the company; and the measure of the surety’s liability (within the limit of the penalty of his bond) is the same as that of the agent There seems to have been no question upon the trial that the course of business between the company and its agent brought him in debt to it for all the sums charged against him; and, as the undertaking embraces all indebtedness arising under the clause specified in it “ or otherwise,” it is only necessary for the plaintiff to show an indebtedness of the agent to the company, arising during the period and in the performance of the duties called for by the agreement referred to in the bond.

The indebtedness of the agent arose under the rules of the company, which, together with the terms of agency, were part of the agent’s agreement; and, as said above, there seems to have been no question of his liability^ for the item of lapses, special salary and cash advanced to him, which were all made up of moneys received by him from the company as compensation conditioned upon his being charged therewith and compelled to return them under certain contingencies. Issue was taken as to his being actually indebted upon the item of $51.98, but the justice deemed' the claim quite established with respect thereto. So that, as appears from the record before us, the plaintiff should have had judgment for the whole amount claimed. However, upon a re-trial of the cause these matters can be fully inquired into.

We think that the justice was correct in holding that the plaintiff was not precluded from showing an indebtedness which arose out of transactions with the company which had their inception prior to the execution of the bond. If the indebtedness of the agent arose after the bond was executed, although in respect of insurance procured by him before its date, the surety would be liable under the terms of the bond.

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

Bischoff and Pryor, JJ., concur.


text:
    The W. D. Wilson Printing Ink Co., Limited, Resp’t, v. Richard R. Bowker, Impl’d, App’lt.

      (New York Common Pleas,

      General Term,

      Filed December 7, 1891.)

    Partnership—What will not constitute.
    Defendant leased certain printing presses to his co-defendant under ana agreement by which he was to receive therefor a certain percentage on the cost and for wear and tear, actual insurance and half the net profits on the same. He was not to take part in the business or receive any share of the-profits of the business not earned by the use of these machines. Held, that his percentages and profits were rent for the machines and did not. constitute him a partner with the co-defendant.
    Motion for leave to go to the court of' appeals.

      Ph. Carpenter, for motion; Parsons, Shepard & Ogden, opposed.
   Daly, Ch. J.

The question in this case does not require submission to the court of appeals in order to settle the law. What was required was the application tó the facts before the general term of the principles already enunciated in many cases before-the court of last resort. This was done in a careful opinion, in which all the judges concurred. 39 St. Rep., 690.

It was sought in the action to hold the defendant Bowker liable-as a partner because he entered into an agreement to let to his co-defendant (who was engaged in the printing business) two cylinder presses “ at the rate of six per cent interest on actual cost, with ten per cent on the same for wear and tear, actual insurance, and also half profit on the same, after deducting rent, labor,, ink and other necessary expenses.” It was not shown that Bowker was to take any part in the conduct or prosecution of the business, nor to have any share of the profits not earned by the use of his machines. His percentages and share of the profits were rent for-his presses. They were compensation such as might have been stipulated for the loan of specified sums of money or for the rendition of specified services. In the latter cases the fact of such stipulation alone would not constitute a partnership. The fact that the share of profits here was compensation for the hire of á chattel makes no difference in principle.

The motion for leave to appeal to the court of appeals should, be denied, without ¿osts.

Bischoff, J., concurs.


text:
    Charles Kruse, Resp't, v. The Seeger & Guernsey Co., App’lt.

      (New York Common Pleas,

      General Term,

      Filed December 7, 1891.)

    1. Conversion—Weight of evidence.
    It is not necessary, to support a verdict for the plaintiff in an action of tort, that his claim should be established beyond a reasonable doubt.
    2. Same—Sale of samples.
    A conversion of samples furnished to defendant to be returned is established by proof of a sale thereof by defendant, and by a refusal on demand to return them.
    3. Same—Defense.
    It is no defense to an action of conversion that defendant had rendered itself unable to return the samples by a sale thereof.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict, and from an order affirming order denying motion for new trial.
    Action for conversion.

      A. Walker Otis, for resp’t; Wilmot & Gage, for app’lt.

       Affirming 40 St. Rep., 285.

   Pryor, J.

We no excuse for this appeal. The disposition of the case at the trial turned upon a pure question of fact; namely, whether the goods converted were sold to defendant, or were delivered as samples on an agreement to return them. This issue was submitted to the jury upon conflicting evidence, and with a charge which, if not unexcepted to, is certainly unexceptionable. The judgment and the order denying a new trial having been affirmed at general term, we have no authority to revise the evicence or disturb the verdict. Our jurisdiction extends only to a review of rulings upon questions of law; and of these the appellant recalls three to our attention.

1. Unquestionably, it was incumbent on plaintiff to show title to the goods; and this the jury found he did, upon evidence amply sufficient to sustain the verdict.

2. So, whether the samples were to be returned was a question of fact on conflicting evidence; and this issue too, the jury decided for the plaintiff. Nothing in the written contract prevented paroi proof that the transaction was a bailment and not a sale.

It was for the jury to draw inferences from the facts in evidence ; and they were justified in finding an understanding between the parties that the samples were to be returned.

The contention of appellant that, in an action of tort, a verdict for the plaintiff cannot be maintained unless it be supported beyond a reasonable doubt, is plainly untenable.

True, in an action of tort, “ it is essential to show a wrongful act on the part of the defendant; ” but here the wrongful act alleged, namely, a conversion, was established both by defendant’s sale of plaintiff’s goods, and by a refusal, on demand, to return them.

Appellant’s proposition, that its own self-inflicted inability to return the goods expiates the conversion, is a legal solecism indeed.

3. We observe no repugnancy in plaintiff’s position ; he does-not blow hot and cold; but from the beginning to the end of the-litigation he denied a sale and affirmed a bailment of the goods.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Frederick Stark, Resp’t, v. Hugh J. Grant, Sheriff, App’lt.

      (New York Common Pleas,

      General Term.

      Filed December 7, 1891.)

    1. Sale—Fraud—Title.
    A failure to take delivery and possession of goods on a sale merely raises a presumption of fraud, which may be rebutted by proof of a bona fide purchase for value, and if such evidence be given the question is for the jury.

      2. Same—Forfeiture.
    The mere fact that a person has committed an act which exposes his-goods to forfeiture at suit of the federal governmjnt does not deprive him of title. His title remains good as against all the world except the government, and as to it until judgment of forfeiture duly rendered.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict, and from an order affirming-order denying new trial.
    Replevin to recover chattels seized by defendant under execution against one Rosenthal. The answer put in issue the title of the plaintiff, and alleged the chattels to be the property of the judgment debtor.
    The chattels in question consisted of a stock of segars and tobacco in Rosenthal’s store, which plaintiff claimed to have-bought at sheriff’s sale, but which he did not remove. Rosenthal continued to sell the same under his license until the seizure. Plaintiff had no license, and did not apply for one until after the-seizure.

      Daniel P. Hayes, for resp’t; Fromme Brothers, for app’lt.
   Pryor, J.

Affirmance of the judgment and order in the court, below concludes this court upon every question of fact, Bell v. Bartholomew, 12 Weekly Dig., 33; Walsh v. Schulz, 67 How., 186, and the evidence conflicting upon the question of title, we-have no authority to challenge the validity of the verdict.

But, the appellant imputes error of law to the refusal to dismiss the complaint; and upon these grounds.: First, because there-was no proof of a purchase of the goods by plaintiff from Rosenthal. Yet the plaintiff testified positively and circumstantially to the fact of the sale, and the jury believed him. Second, because-the sale was void as to the judgment creditor, for lack of delivery and change of possession. It is familiar law that a failure-to take delivery and possession, pursuant to the statute, merely raises a presumption of fraud, which may be rebutted by proof of a bona fide purchase for value; and that if evidence be given to-repel the arbitrary inference of fraud, the question is for the jury, and their decision is conclusive. Thompson v. Blanchard, 4 N. Y., 303, 306; Gardner v. McEwen, 19 id., 123; Allen v. Cowan, 23 id., 502; Tallman v. Kearney, 3 T. & C., 412; Wallace v. Nodine, 57 Hun, 239; 32 St. Rep., 657; Dudley v. Danforth, 61 N.Y., 626. Here the evidence was abundant to authorize a finding by the jury that the plaintiff was a purchaser in good faith and for value. Third, because the plaintiff, having committed an act which exposed the goods to forfeiture at suit of the Federal government, had no title to them. But, the goods were the property of plaintiff except as against the United States, and as to the United States even they continued his property until judgment of forfeiture duly rendered. Tracey v. Gorse, 68 N.Y., 144.

Appellant’s other exceptions are not of sufficient plausibility to require consideration.

Judgment affirmed, with costs.

Balt, Ch. J., and Bischoff, J., concur.


author: Clement, Ch. J.

text:
    Eleanor F. Bishop, Resp’t, v. Thomas H. Hendrickson et al., Ex’rs, App’lts.

      (City Court of Brooklyn,

      General Term,

      Filed December 29, 1891.)

    Conversion—Evidence.
    In an action for conversion of chattels, including an infant’s robe, a witness was allowed to testify as to the description and value of a christening robe which she had borrowed of plaintiff thirty-two years before and had not seen since. Held, error; as it was not connected with the one in question.
    Appeal from judgment in favor of plaintiff, entered on a verdict.
    Action to recover damages for conversion of goods by defendants' testator.

      H. C. II. Ingraham, for app’lts; Sam’l E. Randall, for resp’t.
   Clement, Ch. J.

We have not the power, on the record before us, to review the questions of fact. FTo order was entered denying the motion for a new trial on the minutes, and the appeal is taken from the judgment only. Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913.

Anna Chamberlain was called as a witness for the plaintiff and asked to describe a christening robe borrowed by her from the plaintiff. The testimony was objected to as irrelevant and immaterial. The learned judge said: “ Of course they have to connect it with the one delivered, if not, it will be deemed stricken out.” The defendants excepted, and the witness gave a description, and then, under exception, stated that the lace upon it cost very nearly $5,000.

On cross-examination, the witness testified that she never saw the robe but once, and that was thirty-two years ago. This action was brought for conversion of a large number of articles, and the most valuable one was an infant’s robe, and the counsel for the plaintiff offered the testimony to show the value of the robe, and failed to prove that Mrs. Chamberlain ever saw the one in question. The counsel for the defendants moved to strike out the testimony, which motion was denied. We think it was error to admit the testimony of Mrs. Chamberlain on this point, and it seems clear that her testimony was prejudicial to the case of defendants. The verdict was much less than the value of the robe as testified to by the witness, and we cannot determine how much the jury awarded as its value.

It is contended on the appeal, by the counsel for the plaintiff, that the testimony was relevant and material, and we have no doubt that he so claimed before the jury.

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

Osborne, J.,


author: Van Wyck, J.

text:
    Alexander G. Calder, App’lt, v. Percy Jenkins, Resp’t.

      (City Court of Brooklyn,

      General Term,

      Filed December 29, 1891.)

    Foreclosure—Dower.
    The owner of certain premises gave two mortgages thereon, in the first of which his wife did not join. The second mortgage was foreclosed and the premises were sold to the mortgagee. Thereafter the first mortgage was foreclosed and the premises sold to defendant’s predecessor in title. Held, that the dower of the wife of the mortgagor was extinguished by the first foreclosure and was not revived by the second.
    Appeal from judgment in favor of defendant. •

      S. M. & D. E. Meeker, for app’lt; Johnson & Lamb, for resp’t.
   Van Wyck, J.

This is an action to recover back money paid by plaintiff on account of a contract of sale of real estate, and for money expended in examination of title, upon the ground that defendant’s title thereto is defective. This is an appeal from a judgment in favor of the defendant. In 1875 O’Eourke, who was á married man, made to one Wells a first mortgage upon the premises in question, but his wife did not join in it. In 1876 he made a second mortgage to one Eeid on the same premises, and his wife did join therein. In 1877 a judgment of foreclosure of this second mortgage was granted in an action in the supreme court, in which both O’Eourke and his wife were parties. The referee appointed therein sold the premises to Eeid and delivered to him a deed thereof. The referee’s report of sale recites the sale, delivery of deed, etc. There can be no doubt that Eeid became thereby the owner thereof free from the right of dower of O’Eourke’s wife, subject to the first mortgage, because the regular foreclosure judgment and sale of premises under the second mortgage executed by her extinguished her dower right so far as the purchaser Eeid was concerned. In 1879 judgment of foreclosure of the first mortgage, in execution of which O’Eourke’s wife did not join, was granted in an action to which Eeid and O’Eourke were parties, but not the wife of the latter. The premises were duly sold thereunder to one Wells, and the defendant is the grantee of his grantee.

Did the wiping out of the rights to these premises acquired by Eeid as the purchaser at the foreclosure sale of the second mortgage, which included the dower right of O’Eourke’s wife, by the foreclosure of the first mortgage, revive or return to O’Bourke’s wife her former dower right ? There appears to be no authority directly in point, but this is not strange. The mere suggestion that if there had been a surplus realized on the foreclosure of the first mortgage Beid would be entitled thereto as the purchaser of the equity of redemption at the foreclosure sale of the second mortgage, seems to be conclusive against the contention that there is an outstanding dower right in her. Elmendorf v. Lockwood, 4 Lans., 293; affirmed 57 N. Y., 322. In our opinion, the foreclosure of this second mortgage executed by her extinguished her dower to the same extent as though she had joined her husband in an absolute conveyance to the same purchaser, and the latter would have enured to the advantage of the first mortgagee though she did not join her husband in the latter mortgage. Hoogland v. Watt, 2 Sandf. Ch., 148. It is admitted by plaintiff that the referee in foreclosure sale of second mortgage duly sold the premises to Beid and delivered him a proper deed thereof; that the referee duly made to the court a report of sale reciting these facts, and that such report was confirmed. Under such circumstances, we do not think the'non-record of this deed would give the plaintiff the right to rescind his contract of purchase. On the admitted facts in this case, the court would be compelled to direct a verdict against Mrs. O’Bourke if she had brought an action to recover her dower. Post v. Burnheimer, 31 Hun, 247; Hellreigel v. Manning, 97 N. Y., 60; Chase v. Chase, 95 id., 373, 380. There is no reasonable or rational doubt, on the admitted facts in this case, of the validity of defendant’s title because of any outstanding dower right of Mrs. O’Bourke, or by virtue of the non-record of this referee’s deed.

Judgment must be affirmed, with costs.

Osborne, J., concurs.


author: Osborne, J.

text:
    The People ex rel. James O’Toole and Patrick Higgins, App’lts, v. The Board of Excise of Brooklyn, Resp’ts.

      (City Court of Brooklyn,

      General Term,

      Filed December 29, 1891.)

    Excise—Refusal of license.
    It is clearly within the power of the board of excise to hold, in the exercise of its discretion, that liquor stores on three corners of intersecting streets render che fourth corner a place where a license might not properly be granted, and their decision to that effect cannot be held an abuse of discretion. t
    Appeal from a final order denying to appellants a writ of mandamus directing the respondents to grant appellants a license.
    It appears that there were licensed places on three of the corners formed by Columbia place and State street, and that appellants desired to obtain a license for the remaining corner. The respondents returned as a reason for their refusal that there were enough licensed places already at said corner.

      J. T. Marean, for app’lts; T. A. McGloskey, for resp’ts.
   Osborne, J.

The relators applied to the board of excise for a license to sell liquor at the northwest corner of Columbia place and State street in this city. The application was refused, and thereupon the relators, under the provisions of § 1 of chapter 496 of the Laws of 1886, applied to this court for a writ of mandamus to review the action of the board of excise. The board of excise' made return to said writ, and, on a trial of the matters involved, the learned trial j udge found, as matter of fact, inter alla, “ that the only reason why a license might not properly be granted for said place was, and is, that there was and is a sufficient number of licensed places in the neighborhood to supply the demand, the place being the northwest corner of Columbia place and State street, and there being a licensed saloon in actual operation on each of the other three cornel's,” and the learned trial judge also found, as a conclusion of law, that said reason was a “ good and valid reason ” for refusing Ihe application, wdthin the meaning of the statute, and the proceeding was accordingly dismissed. This appeal is taken from the final order dismissing the proceeding.

The only question for our consideration on this appeal is whether the application of the relators for a license “ has been arbitrarily rejected, or has been rejected without good or valid reasons therefor.’’

The learned counsel for the appellants contends that the reasons which will justify a refusal of an application for a license are not such as either the board of excise or the court, in the exercise of its own wisdom, may deem “ good or valid; ” that no intent to restrain the liquor traffic further than to avoid some of its evil consequences can be imputed to the legislature, and that the only “ good or valid reason,” within the meaning of the statute, for the refusal of a license must be that the granting of it will involve some evil consequences to society.

We do not think that this contention can be sustained so far as it seeks to maintain that the board of excise are not vested by the statute with the exercise of discretion as to the granting of licenses. The title of the act is “An act to regulate the sale of intoxicating liquors, etc.,” and one of the definitions of “regulate” given by Webster is “to direct by rule or restriction.” The act itself provides that no license shall be granted unless the board of excise “ shall be satisfied upon examination” inter alla “ that a license may properly be granted for such sale in the place proposed.” We think that this language was intended to vest the board of excise with the exercise of a discretion as to the propriety of granting a license for this particular place. The right of review of the action of the board of excise only exists, under the statute, where it appears that the application “has been arbitrarily rejected, or has been rejected without good or valid reasons therefor.” it certainly appears from the return that the board of excise have not rejected this application arbitrarily or in a despotic manner; the board of excise has assigned as its reason for rejecting the application of the relators, that there were already licensed saloons in actual operation on each of the other three' corners of Columbia place and State street. We think that is equivalent to a finding by the board that a license might not properly be granted in the place proposed. We can not say that the reason assigned for refusing the license was not “ good or valid.” As before stated, the power is vested by the statute in the board “ to regulate ” the sale of liquor, and it was clearly within the power vested in the board by the statute, in regulating the sale of intoxicating liquors, to hold, in the exercise of its discretion, that liquor stores on three out of four corners of intersecting streets rendered the fourth corner a place where a license might not properly be granted. It never was intended by the statute to constitute the judges of the courts excise commissioners, but only to give the courts a power of review over any abuse of the discretion vested in and exercised by the board of excise. We are of the opinion that no abuse of discretion is shown in the case before us.

For these reasons, we think that the action of the board of excise should be sustained, and that the order dismissing the proceedings should be affirmed, with costs.

Van Wyck, J., concurs.


author: Mayham, J.

text:
    Bridget Noonan, Adm’rx, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891)
    1. Negligence—Contributory—Different corporations.
    An employee of the B. & A. R. R. Co. was engaged in tightening fish plates on its track in its yard. These plates placed on either side of tin; joining of two rails hold them together. It was not necessary in order to do the work that the employee should stand between the rails. A switch connected the B. & A. R. R. Co. with the defendant. The train in question came from the north and was composed of cars from the defendant's road, which under the charge of the defendant’s employees was transferring said cars to the B. & A. R. R. Co. From fifteen to thirty feet north of the employee’s position the B. & A. R. R. Co. had left a platform car standing on the track. Still further north on the track were three freight cars. The train in question was being pushed, and at the end nearest the employee there was no brakeman as required by the rules of the B. & A. R. R. Co. It reached first the three freight cars, a brakeman stepped upon them and set their brakes; the train proceeded south, reached the platform car, pushed it on and over the employee, killing him. Held, that the question of contributory negligence was for the jury.
    2. Same—Duty of an employee as to looking.
    The strict rule which requires one crossing a track to look in both direction í could not be applied so as to require a trackman necessarily engaged in the business of the master to be constantly upon the lookout for passing trains.
    3. Same—Rules.
    The employee had a right to rely on the rule of the B. & A. R. R. Co. which required a brakeman to be upon the end of the approaching train nearest to the employee. Rules of another company govern in its yard. While the engine and train of the defendant were in the yard of the B. & A. R. R. Co. they were governed by its rules, and the employee had a right to rely on them for protection.
    4. Same—Fellow servants.
    The fact that said rules were for the time to govern did not make the persons conducting the defendant’s train employees of the B. & A. R. R. Co., and that hence it could not be held that the deceased was killed by the negligence of a fellow servant.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and also from an order denying a motion for a new trial upon the minutes of the trial judge.

      Smith & Parmenter, for app’lt; Parker &• Fiero, for resp’t.
   Mayham, J.

This action was brought to recover for the alleged negligence of the defendant in causing the death of the plaintiff's intestate by running a car over him on the track of the Boston & Albany Railroad, in East Albany.

The deceased wás, at the time of the occurrence of the accident, ip the employ of the Boston & Albany R. R. Co., and was engaged in repairing the fish plates on the rail on a track known as the bridge track, which, at the northerly end, starts at the switch which was jointly used by the defendant and the Boston & Albany Railroad Co. in passing trains to and from the Boston & Albany Railroad to the railroad of the defendant. The accident occurred about half-past nine o’clock on the morning of the 19th day of August, 1890.

The deceased had been in the employ of the Boston & Albany R. R. Co. for twelvé or fourteen years, and had been engaged in this yard for most of that time. The fish plates which he was engaged in tightening at the time of the injury consist of two iron or steel plates placed one on either side of the rail at each joint, below the bearing surface of the rail, fastened by bolts passing through the rail and the plates, and held in place by a nut and screw on each bolt.

The deceased was engaged in tightening the nuts with a wrench with a handle about twenty inches in length. To perform this work the deceased was compelled to stoop over the rail, but might have stood on the outer side of the track, and was not necessarily compelled to stand between the rails on the track. The proof shows that it was the daily custom of the plaintiff to back cars coming over its road, and destined for shipment over the Boston & Albany R. R, over this track into the yard of the last mentioned road, and leave them there.

At the time of the accident the deceased was at work about 950 feet south of the switch on the bridge track, the switch on the bridge track grade being an ascent from the switch, and between him and the switch and distant from fifteen to thirty feet from where the accident occured on the bridge track was an empty platform car, which had been left there by the Boston & Albany Co. While the deceased was employed in tightening the fish-plates on the westerly rail of this bridge track a train consisting of a locomotive, tender and the freight cars of the defendant’s road pushing thirty-three loaded freight cars destined for the Boston & Albany road, backed over the switch on this bridge track southerly, reaching three freight cars standing on that track, when the brakeman stepped upon them and set their brakes and then stepped off from his own train on top of cars standing on an adjoining track, and the train thus constituted continued slowly to back until it reached the platform car moving the same along until it reached and ran against and over the deceased. At the time of the accident there was no brakeman standing on the southerly end of the advance freight car as it was being pushed southerly, but it is contended that the evidence shows that from this position on a freight car on the westerly side of the bridge track he could see the track and train to a better advantage than he could have done if standing on the rear end of the rear car of his train, while the same was backing up over the bridge track. But the brakeman swears that he did not see deceased, and that he could have seen him if he had stood on the rear end of his train as it backed towards him.

The plaintiff read in evidence, under the objections and exceptions of the defendant, rule 133 of the rules and regulations of the Boston & Albany railroad as follows:

“ Rule 133. The post of the rear brakeman is on tl 3 last car of the train, which he must not leave while the train is in motion, except to go back with danger signals.” Also under like objection rule ten, as follows: “ Conductors will be held responsible for the safe management of their trains, and for the performance of duty on the part of the men engaged with them while upon the road."

At the conclusion of the evidence the defendant moved to dismiss the complaint upon several grounds and the motion was denied, to which denial the defendant duly excepted. The jury rendered a verdict in favor of the plaintiff for $5,000, on which judgment was entered and the defendant appeals.

The appellant insists that the deceased, as matter of law, was guilty of contributory negligence, and that it was error for the trial judge to send the case to the jury upon that question. Ordinarily the question of contributory negligence is one for the' jury. Ominger v. N. Y. C. & H. R. R. R. Co., 4 Hun, 159; Filer v. N. Y. C. R. R. Co., 49 N. Y, 47.

But this rule is not of universal application. Where the act of the plaintiff or party prosecuting for negligence is so manifestly negligent, upon the undisputed facts, that the court would be bound to set the verdict aside for that reason if for the plaintiff, the court should not send the case to the jury; as where a traveler upon a public street or highway crosses a railroad track without looking or listening for an approaching train and is hit and injured, when if he had used that precaution the injury would not have occurred, the contributory negligence in that case is a question for the court and should be withhold from the jury. Van Schaick v.The H. R. R. R. Co., 43 N. Y., 527. But the rule in this class of cases, which applies to persons crossing a railroad track without employment connected with the railroad, differs from that which obtains where the party injured is necessarily and properly engaged in business there requiring his attention; and while in the latter case he would not be excused for the want of such care as the danger of his surroundings would suggest to a prudent man, still he would not be expected to be constantly on the lookout to such an extent as to prevent him from performance of the duties of his employment. In Ominger v. N. Y. C. R. R. Co., supra, Learned, J., lays down the rule which seems to have been followed since, as follows:

“A person about to cross a track is held negligent as matter of law not to look in both directions in order to see whether at that time a train is approaching. But it is hardly possible to apply that rule in its strictness to workmen engaged on the track. The traveler looks once and crosses; the workman remains. If it is. the workman’s duty as matter of law to look in both directions, he must do this as often as it is possible for a train to come in sight, * * * such an obligation would be inconsistent with his proper attention to his work.” We think this rule applicable to the case at bar, and that the question of the contributory negligence of the deceased was properly submitted to the jury.
In Murphy v. N. Y. C. & H. R. R. R. Co., 118 N. Y, 527; 29 St. Rep., 941, the plaintiff was in the employ of one railroad company repairing cars, and the defendant, another railroad company, placed a car on the track on which plaintiff was engaged; the car so left without the brakes being set, moved by its own gravity down upon and collided with the car on which the plaintiff was employed and injured the plaintiff. It was urged that the plaintiff was negligent in not seeing the approach of the car; but the question of contributory negligence was held to have been properly submitted to the jury, as was also the question of the negligence of the defendant. The same rule was substantially held in Roll v. Northern Central R. R. Co., 15 Hun, 502; affirmed in 80 N. Y., 647. But we think in this case the jury were justified in considering, and if they believed the fact in holding, that the deceased relied upon and had a right to rely upon the rules which had been promulgated by both the defendant and the Boston & Albany Railroad Company, regulating the location of brakemen on their moving trains. We have quoted the rules on this subject in force on the Boston & Albany road, and the defendant was also operating under a rule which we quote: “When a train is being-pushed by an engine (except when shifting and making up trains) a flagman must be stationed in a conspicuous point on the front of the leading car, so as to perceive the first sign of danger, and immediately signal the engineer.” The fact that this was not done in this instance was a proper subject for the consideration of the jury upon both the negligence of the defendant and the contributory negligence of the plaintiff. If we assume that these rules were properly received in evidence, and that the defendant owed the deceased any duty of seeing that they were enforced, the jury might well have found that the deceased relied upon their enforcement as a protection to him while engaged in this work, and was thus lulled into a false security and led to rely upon some notification before the car was backed up upon him. But it is urged that these rules of the Boston & Albany road were not made for the government of the defendant and had no binding force upon it, and that, therefore, the deceased, as an employee of the Boston & Albany Co., could claim no immunity as against the defendant under these rules, and had no right to expect their observance by the defendant for his protection. We cannot agree with the claim of the defendant upon this point. That question was expressly settled in the court of appeals in the case of Sullivan v. The Tioga R. R. Co., 112 N. Y., 646; 21 St. Rep., 827. In that case the engine of the if. Y., Lake Erie & Western E. E. Co. was run into the yard of the Tioga E. E. Co. at Elmira, and while there injured one of the employees of the latter company, and Judge Danforth in expressing the opinion of the court uses this language : “ While in the defendant’s yard the ■engine was subject to the rules of the other company.”

But it is urged by the defendant in this case that if the defendant’s train was under the rules of the Boston & Albany Co. while in its yard, then the various persons in charge of the defendant’s train were the servants of the Boston & Albany Co., and then the train hands in charge of the defendant’s train were co-employees of the deceased, and the deceased was injured by the negligence of his fellow servants and he cannot therefore recover of the defendant. That proposition is equally untenable. In Sullivan v. Tioga R. R. Co., supra, it was expressly held that the employees of the N. Y., Lake Erie & Western Co. were in no sense employees with those of the Tioga E. E. Co.

The employees of each company were in the service of different masters, and the deceased, as to the service in which he was engaged, was a stranger to the defendant. That rule applies with ■equal force to this case; and within it, if the deceased was injured by the negligence of the defendant, it cannot defend upon the ground that the defendant’s employees and the deceased were fellow servants.

The rules of the defendant were received without objection and we think the rules of the Boston & Albany Co. were competent evidence within the above decision. The rules being binding upon the defendant they were competent evidence in this case. We see no error in the admission of evidence on the trial. The case presented a question of fact and was properly sent by the trial judge to the jury. The charge of the learned trial judge was eminently fair to the defendant and we see no errors or misdirections in it to which any valid exception was or could be taken.

The verdict of the jury does not exceed the maximum fixed by law and we see no reason to hold that it was excessive. On the whole case we find no valid ground for a reversal of the judgment.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur.


author:
Landon, J.
      Mayham, J.

text:
    John B. Newland et al., App’lts, v. The Hudson River Water Power & Paper Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Riparian owners—Obstruction op watercourse.
    In an action to compel the defendant to lower its dam so as to relieve the plaintiffs’ mill above from the effects of back water it appeared that the dams were 12,000 feet apart, that the top of the defendant’s dam was more than twelve feet lower than the surface of the water in the plaintiffs’ tail race, and that the effects of slack water extended back about 8,000 feet. The plaintiff showed tli it the effect of the construction of the dam had been to deepen the water at his mill. Held, that whatever the reason for this might he this court must affirm the position of the defendant’s experts who had stated that such a result was an hydraulic impossibility.
    3. Same.
    Conceding that there were such phenomena as the “piling” of water and that the retarded stream became at every point a new obstruction, the rules which govern such matters are not well enough understord to allow a court or jury to speculate upon them.
    Appeal from a judgment dismissing the complaint upon the merits entered upon the decision of the Saratoga special term upon the trial before the court.
    The action was to compel the defendant to lower its dam across the Hudson river at Mechanicville so as to relieve the plaintiffs’ mills and water power above from back water.
    The plaintiffs own a dam, water power and mills at Stillwater, and they and their grantors have owned and maintained the dam and operated mills by means of the water power for upwards of fifty years.
    In 1882 the defendant erected its dam. Chapter 406, Laws of 1882, authorized defendant to erect a dam across the Hudson river 'at Mechanicville on its own land, “ in such a manner as not to injuriously affect the water privilege at Stillwater village as it now exists, or • any water privilege now existing between Stillwater village and lands of the Hudson Eiver Water Power E Paper Company.”
    The distance between the two dams is 12,000 feet. Before defendant erected its dam, the difference in level between the surface water at the tail race of plaintiffs’ lowest mill and the surface of the water at the point where defendant afterwards erected its dam was 25 53-100 feet. The difference between the surface of the water at the tail race of plaintiffs’ lowest" mill and the top of defendant's dam is 12 45-100 feet. The defendant's dam sets back the water above it for nearly 8,000 feet up stream. The defendant’s dam is about 945 feet long. The water usually flows over its crest or spillway at depths varying from five inches to five feet; the depth when the river is in its normal condition being between one and two feet. The defendant’s dam is about sixteen feet high, measuring from the lowest part of the bottom of the river. The surface of the slack water at the head of the dam is about three feet higher than its surface near the crest of the dam. The surface of the slack water at the head of the dam is six feet lower than the floor of plaintiffs’ tail race and the distance between the two points is about 4,000 feet, the river flowing through a channel obstructed by three islands and several reefs and many large boulder rocks.
    The testimony on the part of the plaintiffs tended to show that before the erection of defendant’s dam the plaintiffs’ mills were free from obstruction by back water, and that since such erection they have been continually obstructed. The testimony on the part of defendant tended to show that it was impossible, in the nature of the case, for the back water of defendant’s dam to reach the higher level of plaintiffs’ tail race.
    The trial court was satisfied that the obstruction, substantially as claimed by the plaintiffs, existed, but held that they had failed to show that it was caused by defendant’s dam.

      It A. Parmenier, for app’lts; JEseJc Cowen, for resp’t.
   Landon, J.

The main question upon the trial was whether the defendant’s dam did injuriously affect the plaintiffs’ water privilege. The learned trial court, as we learn from the opinion, was satisfied that since the erection of the defendant’s dam the plaintiffs’ water privilege has been injuriously affected by back water. The testimony in support of this contention is practically uncontradicted and amply justifies the statement of the learned judge that: “Since the erection of defendant’s dam in 1882 or 1885, there has been some increase in the depth of the water at plaintiffs’ mills.” This increase appears to nave been constant, and its effect was to impair the efficiency of plaintiffs’ water power .and mills. But the trial court found that the plaintiffs had not shown that this increased depth of water was caused by defendant’s dam. Expert witnesses on the part of the defendant testified that it was- an “hydraulic impossibility” for it to be so caused. Expert witnesses on the part of the plaintiffs did not specifically testify to the contrary opinion; they testified that they discovered no other cause than the defendant’s dam, and, in substance, that this case demonstrated itself, since the rise of the water followed the erection of the dam so closely as to be convincing that the .dam was the cause.

The conclusion of the trial court has the support of the testimony of defendant’s experts and we cannot demonstrate that it is erroneous.

It is easy to assume certain propositions respecting the slack in the defendant’s dam acting as an obstruction to the flow of the water from above; as that the retardation of the flowing volume by the slack water at the point of impact causes the flowing volume to flow more slowly immediately above that point; and that the retarded current itself becomes at every point up the stream a new obstruction retarding the flow above it; and that this continuing to the plaintiffs’ tail race would cause the obstruction there. How, conceding that under certain conditions the phenomenon called the piling of water in a flowing stream exists, the conditions which would produce such a result are not so definitely and clearly understood as to enable the judge or juror in the absence of assistance from expert testimony to decide correctly respecting its existence or non existence in a case like this. In may be that the knowledge of the so-called experts upon the subject cannot be greatly relied upon when they pass from theoretical propositions to their concrete application. Be this as it may, the burden rested upon the plaintiffs to prove their case, and that required them to show that the defendant’s dam was the cause of the back water at the tail race of their mills. This they did not do and hence the judgment must be affirmed.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Mayham, J.

I see no sufficient reason for granting a new trial in this case.

The plaintiffs to recover must establish by proof that their rights have been injuriously affected by the construction of the defendant’s dam. This proposition the trial court held that they had failed to maintain.

The only evidence on the part of the plaintiffs which is claimed to establish it, is the fact that immediately after the construction of the defendant’s dam the water arose at the plaintiffs’ lower mill. The reason for this is not explained in the evidence. The undisputed evidence is that the difference between the height of the surface of the water at the tail race of the plaintiffs’ lower mill and at the top of the defendant’s dam was about thirteen and one-half feet. The distance between the dams is about 12000 feet and plaintiffs’ dam. is about 945 feet long. And the depth of the water as it passes over its top varies from five inches to five feet There is therefore a difference in height at the time of highest water of seven and óne-half feet.

There is a substantial agreement of all the witnesses as to the distance between the dams, and the fall from plaintiffs’ -to the defendant’s in the river bed, and no witness has undertaken to swear that water would pile up so as to rise above its common level sufficiently to overcome this seven and one-half feet elevation of plaintiffs’ tail race above the top of the water at highest flood on defendant’s dam. To hold that the water from the defendant’s dam, upon these facts, could set back so as to. interfere with the free flow of water at the tail race of the plaintiffs’ lower mill would seem to reverse all well known principles governing hydraulics. If the physical facts upon which this case must turn could be changed by further testimony then there might be some reason for granting a new trial.

But the elevations at the different ..points have been ascertained and there is no dispute about them. They cannot be altered on a new trial. The natural laws governing the flow of water are quite as unchangeable, and with these material and controlling factors in this case the same result must follow on a new trial as has already been reached by the trial court.

It is true that no explanation has been furnished for the somewhat remarkable coincident of the rise of the water at the tail race of the plaintiffs’ mill at the time of the erection of the defendant’s dam, but unless it is traceable to some natural cause connected with and arising out of the erection of the defendant’s dam, we cannot assume as against well understood physical laws governing matter that it was produced by water setting back from this dam. At all events the burden is upon the plaintiffs to establish that proposition if true, which they have failed to do. There is no claim on this appeal that a new trial should be granted on the ground of the newly discovered evidence. I think, therefore, that the judgment should be affirmed.

Judgment affirmed, with costs.