text:
    The People ex rel. Edgar P. Reynolds et al., as Executors, etc., App’lts, v. The Common Council of Buffalo, Resp't.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    1. Judgment—Amendment.
    A judgment in favor of the executors of the original relator cannot be amended so as to make the costs payable to the attorney of relator.

      2. Same.
    The rights of such attorney terminated with the death of the original relator, and his remedy,if he had a lien,was by a hearing in the proceeding before the court, referee or jury.
    This is an appeal by the above-named relators from an order made at a special term of this court, directing that a judgment entered upon a remittitur from the court of appeals in the above-entitled proceeding be so amended as to make the costs of the proceeding, which were awarded to the relators, payable to Daniel McIntosh, who was at one time the attorney of record in the proceeding for the testatrix of the relators.

      O. O. Cottle, for app’lts; Edward L. Jellinek, for Mr. McIntosh.
   White, J.

—-The facts are substantially as follows : Daniel Me Intosh, an attorney and counselor at law, at the request of one Amelia E. Reynolds, procured or assisted in inducing the legislature of this state to pass a special act authorizing the appointment of commissioners by this court to appraise certain damages claimed to have been sustained by her by reason of the opening of a public street in the city of Buffalo. Pursuant to said act of the legislature, Mr. McIntosh, as attorney for Mrs. Reynolds, secured the appointment of commissioners and an award of damages at their hands in favor of his client; the city declined to pay ; proceedings by mandamus were prosecuted by Mr. McIntosh to compel payment; the decision of the special and general terms of this court were in favor of Mrs. Reynolds. The city then appealed to the court of appeals, and that court affirmed the order appealed from. While that appeal was pending in the court of appeals Mrs. Reynolds died. On December 12, 1893, the relators were substituted as parties in the place of Mrs. Reynolds, who had died; O. 0. Cottle, the attorney for the appellants, procured the substitution to be made and appeared in the proceeding as their attorney of record, and has ever since been such. The remittitur from the court of appeals was then filed in this court by Mr. Cottle, and the judgment of the court of appeals was thereon made the judgment of this court, whereby, among other things, it was adjudged that the appellants recover of the city the costs of the proceeding. The city declined to pajr, and thereupon the relators procured a writ of mandamus requiring the city to pay such costs to them or their attorneys. The city thereupon ordered a warrant to be drawn, and the city clerk drew the warrant in favor of Mr. Cottle, as the attorney for the relators, for the amount of the costs. At this point Mr. McIntosh, who had been the attorney of record in the proceedings for Mrs. Reynolds until the time of her death, procured an order requiring the appellants to show cause on January 29, 1894, at a special term of this court, why the judgment which was entered herein upon the remittitur from the court of appeals, and making the judgment of that court the judgment of this, should not be amended by directing the payment of the costs awarded by the judgment of the court of appeals to the appellants to be made to Mr. McIntosh, instead of to the appellant^, and staying all proceedings on the part of the appellants herein. On the return of this order to show cause, after hearing Moses Shire for Mr. McIntosh, and Mr. O. 0. Cottle for the appellants, the court ordered that the judgment above referred to be amended so as to require the defendants (the common council) to pay to Mr. McIntosh the amount of the costs so awarded by the court of appeals to the appellants in this proceeding, and from that order this appeal is taken.

Such are the facts as claimed by Mr. McIntosh, and for the purposes of this appeal they may be assumed, although it is stoutly denied by the appellants that Mr. McIntosh rendered services of any practical value to Mrs. Reynolds. On the other hand, it is claimed that he mismanaged her case and failed to observe good faith toward her.

I am in favor of a reversal of the order appealed from on the following grounds:

1. The judgment as rendered by the court of appeals is correct in form, being in favor of one party and against the other, and an amendment of the judgment by making the costs payable to Mr. McIntosh, instead of to the party, is unauthorized by law'. Code Civ. Pro. § 2086; Devin v. Patchin, 26 N. Y. 441; Wilcox v. Smith, 26 Barb. 316; Matter of Brown, 65 How. Pr. 461.

2. Upon the death of Mrs. Reynolds the rights of Mr. McIntosh as her attorney were terminated, and since her death lie has in no sense been an attorney or counsel in this proceeding. If at that time he had a lien upon his client’s cause of action under § 66 of the Code of Civil Procedure, the method of enforcing it, which is the only right he has since then had in connection with this proceeding, is not by a change in the form of the judgment; but, as liis claim is disputed, by a hearing in the proceeding before the court, a referee or jury, as the court may direct. The court has no power, nor is it necessary, to make Mr. McIntosh a party to the proceeding by an amendment of the judgment for that purpose. His character of attorney of record for a deceased party entitles him to this relief. Matter of Knapp, 85 N. Y. 284; Randall v. Van Wagenen, 115 id. 528; 26 St. Rep. 438; Estate of Hoyt, 12 Civ. Pro. Rep. 209 ; 8 St. Rep. 786 ; Wilson v. Gregg, 2 Civ. Pro. Rep. 343; Hussey v. Culver, 30 St. Rep. 836; Whittaker v. N. Y. & H. R. R. Co., 11 Civ. Pro. Rep. 189; Carter v. Greenpoint, etc., Co., 5 id. 116; Dimick v. Cooley, 3 id. 142; Smith v. Baum, 67 How. Pr. 267 ; Lorillard v. Robinson, 2 Paige, 276 ; Starin v. Mayor, 106 N. Y. 82 ; 8 St. Rep. 637 ; Clute v. Gould, 28 Hun, 348.

Costs can only be awarded by virtue of some statute, and as Mr. McIntosh is neither the attorney in nor a party to the proceeding, there seems to be no authority to award motion costs or costs of this appeal against him, and as the common council do not appear to have consented to or to have known of the motion by Mr. McIntosh, there is no reason why the city should pay any such costs. The only person who could be legally charged with the costs on this matter would be the attorney who prefers the motion. As an officer of the court he might be charged, as a disciplinary measure, for having wrongfully inter-meddled in a proceeding in behalf of one having no standing, or as an equitable compensation for annoyance and expense caused to the appellants. For this reason the order appealed from should be reversed, without costs. Imhoff v. Wurtz, 9 Civ. Pro. Rep. 48.

Hatch, J., concurs.

Order reversed, without costs.


source: Caselaw Access Project

author: Per Curiam.—

license: Public Domain

text:
    George W. Barrett, Resp’t, v. Henry W. Joslynn, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    Pleading—Complaint—Subscription.
    The signature of the plaintiff to the verification clause is a sufficient subscription of the complaint to meet the requirements of § 459 of the revised charter of Buffalo.
    Appeal from judgment of the municipal court of Buffalo in favor of the plaintiff.

      Charles T. Gardner, for app’lt; William C. Kilhoffer, for resp’t.
   Per Curiam.—

The only question raised on this appeal is that the complaint is not subscribed by the “ plaintiff or his attorney,” as required by § 459 of the revised charter, regulating the practice in the municipal court.

The complaint was verified by the plaintiff as required by the Code, and he signed his name to the verification, but did not subscribe the complaint itself. In Harrison v. Wright, 1 St. Rep. 736, where the precise question was up, it was held, by the unanimous opinion of the general term of this court, that the signature of the plaintiff to the affidavit was a sufficient subscription of the complaint to meet the requirements of the statute. As no authority is shown us holding differently, and on facts exactly parallel, we must follow the law as laid down in that case.

The judgment of the court below is affirmed, with costs.

Present: Titus, Ch. J., Hatch and White, JJ.

Judgment affirmed, with costs.


author: Hatch, J.

text:
    Patrick Fitzgerald, Resp’t, v. Wesley C. Tiffany, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    Contract—Statute of frauds.
    Verbal promise to pay for goods as condition of their delivery to another and vendor’s charge of them to the promisee, take the contract from the operation of the statute of frauds.
    Appeal from a judgment rendered by the municipal court of Buffalo.

      William Armstrong, for app’lt; E. N. Sackett, for resp’t.
   Hatch, J.

—Upon the trial evidence was given tending to establish that one Conover engaged plaintiff to furnish the material and make for him a suit of clothes. When the clothes were finished, Conover examined, and approved of them and asked for credit, which was refused; thereupon he proposed to obtain an order from defendant for their delivery, which was assented to by plaintiff. Conover then obtained this writing:

“ Buffalo, N. Y, Jany. 19, 1888.
“ P. M. Fitzgerald, give bearer the clothes and oblige."

Plaintiff, not being satisfied with this, went to defendant; asked him if he signed the order defendant replied that he did. Plaintiff then asked, “Will you pay for these clothes ? ” Defendant replied, “Certainly, I will pay for them.” Plaintiff thereupon delivered the clothes to Conover and charged, in his book, the purchase price to defendant. The effect of this transaction waste» make defendant the principal debtor. The writing did not have the effect of creating any obligation against defendant, but that, coupled with his verbal promise to pay for the clothes, constituted a distinct independent obligation upon his part to pay. Defendant did not undertake to pay if Conover made default; he became primarily liable, and the debt, as between plaintiff and Conover, was extinguished, and plaintiff could not have maintained an action against him therefor, as it would be a complete defense to show that credit was never given to him, but to defendant. This fact distinguishes the contract from the one in Mallory v. Gillett, 21 N. Y. 412, and makes that case an authority for the rule here laid down. Id. 432. It is also in harmony with the other cases on the subject. Brown v. Weber, 38 N. Y. 190 ; Booth v. Eighmie, 60 id. 240; Duffy v. Wunsch, 42 id. 246.

It has been held that whether the promise was original, so as-to make the promisor liable as a primary debtor, was a question of fact. Cowdin v. Gottgetreau, 55 N. Y. 650.

The court below has by its judgment found that the obligation created was a substitute for any obligation existing against Con-over, and the evidence warranted such finding. In whom vested the legal title to the clothes does not affect the question. The title may have been in Conover, as seems to be the law announced in Higgins v. Murray, 4 Hun, 565, and Donnell v. Hearn, 12 Daly, 230, or it may have been in plaintiff, as expressed in Higgins v. Murray, 73 N. Y. 252.

An obligation existed, and it was entirely competent for defendant to assume that obligation, and when he agreed to pay it it became his debt, and the statute of frauds does not defeat a recovery upon the obligation thus assumed.

Judgment appealed from should be affirmed,'with costs.

Titus, Oh. J., and White, J., concur.

Judgment affirmed, with costs.


author: Titus, Ch. J.

text:
    Paul F. Bussman, App’lt, v. The Western Transit Company, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    1. Gabbier—Connecting line.
    A carrier, which sells tickets and assumes to secure proper accommodations, over a connecting line, is liable for latter’s failure to furnish them, notwithstanding a printed notice on the ticket that it acts as agent and is not responsible beyond its own line.
    3. Same.
    Such ticket is only a voucher that the party holding it has paid his fare.
    Appeal from judgment of the municipal court of Buffalo non-suiting the plaintiff.

      Ingram & Mitchell, for app’lt; Cook & Fitzgerald, for resp’t.
   Titus, Ch. J.

—After the evidence for both plaintiff and defendant had all been given, the court, on motion of the defendant, nonsuited the plaintiff and gave judgment against him for costs, on the ground, as stated in the motion, of a failure to make out a case, and that no damages had been proved.

The defendant is a transportation company, and during the summer of 1893 was engaged in carrying passengers to different lake ports and to the World’s Fair at Chicago. In its pamphlets and circulars the defendant advertised to take passengers to Chicago for nineteen dollars, special tourist rates. It is stated that these rates include meals and berths in stateroom, and for further information the would-be tourist is directed to apply to the agent of the company, or to Daniel H. Wilcox, general passenger agent, at Buffalo, H. Y. It is further stated : “ To those intending to visit the World’s Fair the special attractions of this beautiful lake trip to Chicago are presented. We make close connections at the Sault St. Marie, at the head of Lake Huron, with a fine fleet of steamers of the Lake Michigan & Lake Superior Transportation Company. A cool, delightful and healthy trip on the great inland seas. Ho dust. Airy and comfortable staterooms. ” These attractive circulars are made more or less so by a flourish of conspicuous type, which readily catches the eye and attracts the attention of the traveler caring to escape the discomforts of a trip to Chicago in the dust and heat of the summer months.

The plaintiff, a practicing physician, having about the first of August made up his mind to suspend temporarily the practice of his profession and to visit the great World’s Fair at Chicago, went to the numerous ticket offices on Exchange street and procured pamphlets of the different transportation companies, among them the circular and pamphlets issued by the defendant at its office in this city and from which we have quoted. After reading the circular and sufficiently reflecting on the matter, on the sixteenth of August he called at the office of the agent of the defendant, Mr. Wilcox, and found Mr. Doty representing the company, whom he informed that he had “ fully considered the matter of going to Chicago and had concluded to take the defendant’s line in preference to the railroad because he wanted a comfortable trip; he could not sleep on a car, and, bj' taking the defendant’s line, he could get rest and recreation at the same time and arrive in Chicago in good condition.” Mr. Doty, the agent, after the matter had been fully explained to him by the doctor, said he thought the idea was a good one, and the doctor was so well satisfied with the plan of his trip5 that, after considering it another night, he went the following day and told Doty “ he had made up his mind positively to go to Chicago,” and, after some further talk with Doty, in which the doctor was informed that two ladies had engaged the stateroom he wanted, but the accommodating agent would put them in another and less desirable room and assign that room to the doctor, and after the doctor’s chivalric protest that “ he did not like to drive these ladies out of their room,” he concluded to take the room and bought two tickets, for which he paid thirty-eight dollars.

The doctor with his wife presumably had a pleasant trip, as we hear of no complaint from him until the following Tuesday morning, between six and seven o’clock, when the Empire State landed at the “ Soo.”

He says he made inquiry of the purser or captain where the boat which was to take them to Chicago was, and the City of Duluth being pointed out to him, he got aboard of her and went to the ticket office and “ found it closed.” “ There were two ladies that came down from Buffalo on the Empire State going to the World’s Fair." Whether these were the same two ladies whose stateroom the doctor got from the agent in Buffalo does not appear. ’He says he then went back and got his breakfast, and again went to tile ticket office of the City of Duluth, and found the agent arranging for rooms with a gentleman and two ladies, who were told by the agent that it would be impossible to accommodate them with rooms, and from that the plaintiff inferred that he could not get a room. However, he handed his ticket to the agent, who looked at the doctor and smiled, and said : “ I will see. what I can do for you.” Then the doctor walked away, probably in the full belief, induced by that smile of the ticket agent, that he would be satisfactorily provided with a room. After-some time spent in seeing the town, he got on board and started for Chicago. About noon, according to the doctor’s story, he went down to the purser, when the following conversation took place: “Says I, ‘Well, how about a room for me on the boat.’ ‘Well,’ he says, ‘I cannot give you any; you haven’t got any ’ (of which fact the doctor was undoubtedly fully aware), and said: ‘ That’s a nice note,’ says I; ‘ I paid for a first class fare and I believed that I was going to have a stateroom, and I paid for one and I want it.’ ‘Well,’ he says, T cannot give you any; I cannot turn a person Out of a room and put you in.’ Says I, ‘That isn’t my lookout; that is your lookout.’ We talked a little while together, and says I, ‘When I get back to Buffalo I am going to the Western Transit Company and raise hell,’ ” which he on his arrival in Buffalo proceeded to do.

I have quoted thus largely from the plaintiff’s testimony to show his understanding and interpretation of the contract which he had entered into with the defendant and of his persistent intention of enforcing it, even at the risk of serious consequence to all concerned.

About eleven o’clock, when all had become weary of looking at the stars and of hearing the swash of the water against the sides of the sturdy vessel, the doctor descended into the cabin and saw the servants carrying mattresses and passengers selecting cots, when he met the purser “and asked him, says I, ‘Can’t I have one of those mattresses and put in the gangway there ?’ He says (I quote from the testimony) ‘Yes, you can do that if you want your head smashed in.’ Says I, ‘I will look out for my head all right.”’ He says he took the mattress and placed it in the gangway between the main saloon and the deck. He says he preferred this busy, breezy place to lying with the crowd in the saloon. Evidently the doctor’s wife was not of the same opinion, or fascinated with the idea of a night’s rest in the gangway, where she was liable to have her head “smashed in,” for, after about half an hour, she left him, saying she perferred sitting in a chair to lying on the floor. The doctor’s efforts to get rest do not appear to have been very successful, for he tells us he did not get any rest or sleep that night and fared no better the next.

On his return to Buffalo he called on Mr. Doty, with the evident intent of making good his promise to the agent at the “Soo,” and told him how he fared. Mr. Doty was very sorry that such a thing should happen to the doctor, and said he would tell Mr. Wilcox all about it, and as he was going up to the “Soo” he would have a chance to talk it over with the other company and see what he could do for him. With this fair, but somewhat equivocal promise, the plaintiff went away apparently satisfied. But as time sped on and he heard no more from Doty or Wilcox, or the agent at the “Soo,” he again called on Doty and learned that Wilcox had returned, and after going to the office of the company on Main Street and on the Beed dock several times in search of Wilcox, and not finding him, at last located the missing agent at the office of the company on Main street, and after a long argument by the doctor that something should be done and the frequently repeated replies of Wilcox that nothing could be done for him, the plaintiff then called on the general manager, Mr. Caldwell, and requested an interview with that gentleman. The clerk having Mr. Caldwell in charge insisted on the plaintiff’s sending in his card, but as the plaintiff had no cards he was obliged to wait until the “admitted by card gentlemen” had finished their business, when he was politely informed by the clerk that Mr. Caldwell would like to have him put his complaint in writing and he would then consider it. The plaintiff replied that he would be glad to do so, and with that object in view at once procured a summons and complaint to be served on Mr. Caldwell.

None of the facts sworn to by the plaintiff are denied by the defendant, but it is claimed, and that is also undisputed, that the boat which the plaintiff took at the “Soo"- belonged to another line. It is not disputed that the agent Doty telegraphed to the Lake Michigan Transportation Company’s agent to reserve berths for the Buffalo passengers, including the plaintiff, and that the agent sent him a reply in which he agreed to reserve nineteen double rooms for the Buffalo passengers, which was a sufficient number to accomodate all of the defendant’s passengers on the Empire Slate going to Chicago. It is claimed that the Lake Michigan Transportation Company failed to carry out its part of the contract, and'hence it is claimed that the defendant is not liable for such failure by the Lake Michigan Transportation Company to carry out the terms of the contract on its end of the route.

We are referred to no authority by counsel for the defendant sustaining the position taken by him, but it is argued that the Lake Michigan & Lake Superior Transportation Company being a separate corporation, having boats of its own, not under the control of the defendant, which fact was known to the plaintiff, that it was only obliged to furnish him transportation to the “ Soo,’’ and after that all responsibility for transportation to Chicago ceased.

This theory must depend very much on what the contract which the defendant entered into with the plaintiff was. The circulars assure the public that for the sum of nineteen dollars they will furnish transportation with stateroom, berth and meals to Chicago. This was evidently the understanding of the plaintiff, gathered from its circular and the agent. It was competent for the defendant to make an agreement to take passengers to Chicago partly over its own line and partly over the line of another company. Quimby v. Vanderbilt, 17 N. Y. 306; Swift v. Pacific Mail S. S. Co., 106 id. 206; 8 St. Rep. 602. And that it did undertake to do it in this case there is sufficient evidence to warrant the jury in finding. It sold tickets over another line connecting with its own line and assumed to secure berths for its Chicago passengers over that line. If such was its contract and its corresponding line failed to furnish proper accommodation for passengers coming on defendant’s boats, we think the defendant would be liable for such a failure, notwithstanding the defendant has a printed notice on the ticket that it acts as agent and is not responsible beyond its own line in selling tickets over the Lake Michigan Transportation Company’s line.'

“ It is not claimed by the defendant,” quoting from counsel’s brief, “ that the mere acceptance by the appellant of tickets on which a notice is printed to the effect that the respondent in selling the tickets acts as agent and is not'responsible beyond its own line relieved the respondent from liability for any act of the connecting line, * * * but it is claimed from all the testimony in the case that it may be fairly inferred that the appellant when he purchased the tickets had notice of the fact that the respondent’s boats only went as far as the ‘ Soo,’ and there was an implied assent to the limitation of the respondent’s liability, as set forth in the notice printed on the ticket."

We do not think that such was the necessary understanding of the contract. The conduct of the plaintiff from first to last rebuts any such assent, and such is not the only inference to be drawn from the evidence." The plaintiff bought a ticket to Chicago over the defendant’s line and such other lines as it had the right, by previous arrangement, to ticket over, and the printed circular which was a part of the contract expressly guaranteed berths to the end of the journey.

The notice printed on the ticket is not a contract which binds the passenger. The ticket is a mere voucher or token that the party holding it has paid his fare. Nevins v. Bay State Steamboat Co., 4 Bosw. 225; Quimby v. Vanderbilt, 17 N. Y. 306. If it was the understanding of the parties that the plaintiff was being ticketed through to Chicago, then the defendant would be liable to the plaintiff for such damage as he can show he sustained. Swift v. Pacific Mail S. S. Co., 106 N. Y. 206; 8 St. Rep. 602.

We think, therefore, that the case should have been submitted to the jury upon the question whether the contract which was entered into in Buffalo, at the time of the purchase of the tickets by the plaintiff, was one to carry the plaintiff through to Chicago and furnish him with a berth in a stateroom.

As to the other point raised by the plaintiff, that no damages were shown, we think if a contract is shown to have been made to take the appellant through to Chicago and furnish him with a berth, and that there was a failure by the defendant or the corresponding line to carry out its part of the agreement, then the plaintiff was entitled to some damage, and the amount which he should recover was for the jury to determine.

The judgment of the municipal court must, therefore, be reversed, with costs.

Hatch and White, JJ., concur.

Judgment reversed, with costs.


text:
    Jacob Morgenstern, Pl’ff, v. J. Christ. Burkhardt et al., Def’ts.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    Equity—Adequate remedy at law.
    Where an action at law for damages will afford a party complete relief, he cannot invoke the equitable aid of the court.
    Demurrer to plaintiff’s complaint.

      M. Fillmore Brown, for pl’ff; James L. Quackenbush, for def’ts.
   Hatch, J.

—The complaint alleges that defendants obtained contracts for the purchase of certain specified farms; that in and about the purchase plaintiff rendered valuable services at defendants’ request; that defendants were to take and hold said contracts in their name, and thereafter dispose of said premises at a profit; that after the contracts should be executed defendants would execute and deliver to plaintiff a written agreement, duly executed, expressing that plaintiff was to have an interest in the purchase of the premises, and upon a sale of the premises defendants would pay the plaintiff one-third of the net profits realized from the sale of the lands; that plaintiff has demanded the execution and delivery of said written agreement, which has been refused; that the lands have advanced in value since the purchase, and that plaintiff is fifty-five years old.

The judgment demanded is that defendants be compelled to execute the written agreement, or that plaintiff have damages awarded him. It is quite evident from the allegations of the complaint that plaintiff has no interest in land; his interest is in the profits expected to be realized upon a sale. Nothing appears showing that defendants are bound to sell at any specified time, or that there shall be profits when sold, or that they do anything more than to refuse to recognize plaintiff’s claim to a writing and repudiate his interest in profits.

If the writing be executed it would only evidence plaintiff’s right to profits, if any were ever made, and if there was a failure to pay the profits on a sale plaintiff would have his action at law for damages, which would afford him complete relief. Under such circumstances plaintiff cannot invoke the equitable aid of the court. Slauson v. Watkins, 86 N. Y. 602 ; Cushman v. Thayer Mfg. Co., 76 Id. 370.

It is quite possible that plaintiff can make a case entitling him to an order of examination for the purpose of perpetuating testimony, even though his cause of action be not at the time perfect. Merchants’ Nat. Bank v. Sheehan, 101 N. Y. 176 ; Town of Venice v. Woodruff, 62 Id. 468; In re Ketchum, 60 How. 154.

But he shows no ground for the' maintenance of this action. The demurrer should be sustained and judgment ordered for defendants, with costs.

Titus, Oh. J., and White, J., concur.

Demurrer sustained and judgment ordered for defendants, with costs.


author: Hatch, J. White, J.

text:
    Howard J. Ansteth, by Guardian, etc., Resp’t, v. The Buffalo Railway Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    Railroads— Street.
    Street car conductor has no right, by demonstration and ejaculation, to produce fear and thus cause a trespasser to attempt to alight, if, by so doing, he unnecessarily exposes him to the hazard of injury.
    Appeal from a judgment, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      Adolph Rebadow, for pl’ff; C. M. Bushnell, for def’t.
   Hatch, J.

—It appears without conflict of evidence that plaintiff was a trespasser upon defendant’s car, and it may be assumed that he intended when he boarded the car to ride thereon until the conductor approached where he stood, and then alight while the car was in motion. But the jury have found that while he was thus upon the car, and while it was in rapid motion, the conductor, without the boy’s knowledge, came to the front of the car, made a motion towards the boy and uttered an ejaculation, which acts frightened and caused him to suddenly loose his hold on the rail of the dash, in consequence of which he was thrown from and under the car, receiving the injury complained of. Upon the trial the motion made by the conductor was illustrated to the jury, but it is not described in the record; enough is stated, however, to show that he reached out toward the boy or made a motion towards him with his hand, and at the same time uttered the ejaculation. The jury were, therefore, authorized to find, and such is the effect of their verdict, that the acts of the conductor were intended to, and had the effect of causing the boy to leave the car at the time and in the manner which he did.

It was the conductor’s duty to keep his car free of trespassers, and he had the undoubted right to put the boy off the car. But he was required to do it in a proper manner, having regard to the safety of the person. The conductor had no right, by demonstration and ejaculation, to produce fear, and thus cause the boy to attempt to alight or loose his hold, if by so doing he unnecessarily exposed the boy to the hazard of injury, any more than he had the right, by physical power, to expose him to the same injury. And if what the conductor did caused the boy to act involuntary and destroyed the exercise of care and caution for the protection of his person which he could or would otherwise have exercised, and from which the injury resulted, such act was without authority, and carried with it responsibility for the damage sustained. Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249; 113 N. Y. 670; 23 St. Rep. 994; McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505; 27 St. Rep. 834.

As before observed, the finding of the jury upon this question is favorable to the plaintiff.

There is a sharp conflict in the evidence respecting the conduct of the conductor, and also tending to establish that the injury was the result solely of the boy’s acts. But there was sufficient to submit to the jury, and they have found that a case was made out, and such finding is conclusive upon us. The judgment and order appealed from should be affirmed.

White, J.

(dissenting).—On the 21st-day of October, 1893, the plaintiff, who was then a very bright and intelligent boy nine years old, got upon the lower step of the platform of one of the defendant’s street cars as it started, for the purpose of “ stealing ” a ride, holding on to the dashboard of the car with his right hand, and holding in his left hand a handle affixed to the front end of the body of the car at the side where- he stood. While in this position, and after the car had acquired an ordinary rate of speed, the conductor approached, and perhaps stepped out upon the front platform, and extended one or both of his hands towards the boy, and exclaimed “Hey!” As the conductor did this the boy loosed' his hold upon the dashboard, his body- swung around under the car and he was injured, As he looked up and saw the conductor and heard the exclamation he was frightened, and claims that the fright caused him to loose his hold, and that, therefore, it was the proximate cause of the injury. The plaintiff frequently indulged in the practice of stealing rides on the street cars ; he knew it was wrong and that it was dangerous and that he was liable to get hurt. It was his habit, when stealing rides in this way, to watch for the approach of the conductor in order to jump off before the conductor could get near enough to catch him. On this occasion he followed his usual custom in this respect, but for some reason failed to observe the approach of that official until he was upon the front platform. There is in fact a sharp and decided conflict in the evidence concerning the movements and acts of the conductor, but the jury found them to be substantially as narrated above, and we will assume that the evidence justifies that finding. The theory upon which the case was tried, and upon which it was submitted to the jury, is that the jury was authorized to find from the evidence that the plaintiff was induced to loose his hold of the dashboard by a well-grounded .fear of violence and bodily harm at the hands of the conductor, and that, therefore, the act of the conductor caused the injury complained of. No claim is made by the plaintiff but that he fully understood and comprehended the danger involved in the practice in which he was engaged; he testifies to the fact himself, and, therefore, he was guilty of such contributory negligence as will preclude a recovery, unless, as claimed by him, he was frightened by the act and exclamation of t,he conductor, and had reasonable cause to apprehend violence and bodily harm at his hands, and the injury resulted solely from his attempt to escape such violence and bodily harm. Schmidt v. Cook, 1 Mis. Rep. 227; 49 St. Rep. 213.

It is urged by the defendant that error was committed upon the trial in permitting the plaintiff’s mother, when testifying as a witness, to be asked whether, at the time of the accident, she kept a servant or did her own housework. The question was not answered, and so no harm resulted from it. The defendant also insists that error was committed in allowing the plaintiff to testify that he was frightened when he discovered the conductor on the platform, and to give that as a reason for loosing his hold upon the dashboard. I do not think the admission of that evidence was erroneous, nor do I think the case of Abbott v. People, 86 N. Y. 460, relied upon by the defendant as an authority in its favor on this point, supports its claim. Nor can it be said from the amount of damages awarded that the jury was influenced by passion, prejudice or corruption, or that the verdict is excessive. Akersloot v. Second Ave. R. Co., 40 St. Rep. 231; 15 N. Y. Supp. 864; Ehrman v. Brooklyn City R. Co., 38 St. Rep. 336; 14 N.Y. Supp. 336.

The vital question on this appeal is whether or not the evidence justifies the inference that the plaintiff attempted to leave the car, or loosed his hold upon the dashboard, solely in consequence of a reasonable apprehension or fear of bodily harm at the hands of the conductor. If such an inference is not warranted by the evidence then the verdict should not be allowed to stand. Hogan v. Central Park, etc., R. Co., 124 N. Y. 647; 36 St. Rep. 352.

As bearing upon this proposition the plaintiff himself says: “The conductor .came throu'gh the car and did like that to me (indicates that the conductor made a motion towards him with one or both hands), and hollered ‘ Hey I ’ to me. * * * I got scared and let go with my right hand and I got dragged about ten or fifteen feet and then I let go. I was afraid of the conductor. John Pfeiffer was playing with me that day ; we just came from the store. We used to take rides on these cars sometimes. I don’t know how often I had jumped on and off the cars in this way. This was the first time when I was on the platform” (probably meaning front platform). “I was not watching for the conductor. I had looked in the window and seen the conductor before in the car when I was on the step. I had not ridden on the front step of the car before just as I was riding then; this was the first time. I had jumped on the hind platform before and ridden there when I was stealing a ride. I could not tell how many times I had done that, * * * quite a number of times. I knew it wasn’t right to jump on a car in that way. When I have been on the rear platform in that way hanging on the car I have looked up into the window and seen the conductor. I would have to keep a watch on the conductor so he would not catch me. I paid no attention to him on this day. I knew when I was riding on these steps of the car when the conductor came hack towards me 1 would jump off, and jump off before he got to me. I would not let him get hold of me. I knew that in jumping on the cars andjumping off again in that way I was likely to get hurt by it. When I stood there I could look back into the car, but I didn’t; I didn’t see the conductor at all until' he came up to the door. When I was riding on the back step in that way I used to keep watch on the conductor. I didn’t here because I didn’t think about it.” John Pfeiffer, the plaintiff’s companion, who was also stealing a ride upon the other end of the car, says he was watching the conductor all the time very closely, so that when he should come towards the rear of the car he could jump off, as he didn’t want the conductor to catch him on the car.

To my mind, if there is any fact established by a fair preponderance of the evidence in this case, it is that when the plaintiff got upon the platform of the car on the occasion in question it was not with the intention to become a passenger or to ride to any particular point or place, but solely for the purpose of stealing a ride, with the intention to jump off whenever he should observe the conductor’s approach to the front end of the car. He says he forgot to watch for his approach, and when he appeared upon the platform and made the motion with his hand and hollered “ Hey!" he' was scared and loosed his hold. Whether the novelty "of the experience in stealing a ride upon the front platform had so absorbed his attention that he forgot to look for the approach of the conductor, or whether his approach had been concealed by passengers, as is indicated by the evidence of some of the witnesses, is not quite certain, but certain it is to my mind that the plaintiff’s attempt to leave the platform was not solely in consequence of what the conductor said or did, but was in pursuance of his intention to do so, when he got upon the platform,, whenever the conductor should approach the point where he stood. When injured he was attempting to do just what he had done many times before, and just what he intended to do when he got upon the platform of the car. He does not even say he believed, or had any reason to suppose, that the conductor would do him bodily harm. The case is barren of evidence which would justify such an. apprehension; there is no evidence that any threat of violence was made by the conductor by word or act.

As this case appears to me it is easily distinguishable from the cases of McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505; 27 St. Rep. 834, and Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249. In those cases the parties injured were induced to jump from moving cars in consequence of an actual physical assault by the defendant’s servants in one case, and of threatened bodily harm in the other. In neither was the act which resulted in the injury premeditated, or in pursuance of a design to perform it when boarding the car ; while in the case at bar it was.

It seems clear tome that no sufficient reason exists for charging the defendant with responsibility for the consequences of this unfortunate accident, and that, therefore, the order and judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

Judgment and order affirmed.


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    The South Buffalo Natural Gas Company, Resp’t, v. Donald Bain, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    Corporation—Subscription—Void. O
    A failure to pay the per centum required by statute renders void a subscription to stock of a corporation, made after incorporation.
    Appeal from a judgment.

      Edward L. Jellinek, for pl’ff ; Frank R. Perkins, for def’ts.
   Hatch, J.

—Plaintiff’s existence as a corporation, whether defective or not, is sufficient to enable it to maintain this.action. Buffalo & A. R. R. Co. v. Cary, 26 N. Y. 75.

The subscription for the stock was made after incorporation, and was in form sufficient to create liability had there been compliance with the provisions of law respecting payment. The statute regulating such subscription provides: “At the time of subscribing, every subscriber whose subscription is payable in money shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such payment.”

Defendant subscribed for ten shares of plaintiff’s stock, paid nothing, and now resists an attempt to enforce liability. It was early held that a failure to pay the per centum renderedithe subscription void. Union Turnpike Co. v. Jenkins, 1 Caines, 381.

This doctrine was subsequently questioned and held not to apply to a subscription to the capital stock of a company made before incorporation, Lake Ontario, A. & N. Y. R. R. Co. v. Mason, 16 N. Y. 457, 458; Beattys v. Town of Solon, 64 Hun, 120; 45 St. Rep. 899, the construction of the statute being that if the aggregate payment amounted to the required ten per cent, it was sufficient The distinction between such a subscription and one made subsequent to incorporation was recognized; with respect to the latter the decisions in this state have been uniform that payment must follow subscription, and until both acts concur no valid contract exists. New York C. & H. R. R. R. Co. v. Van Horn, 57 N. Y. 473 ; Beach v. Smith, 30 Id. 122-132; Black River & Utica R. R. Co. v. Clarke, 25 Id. 210; Ogdensburg, C. & R. R. R. Co. v. Wolley, 1 Keyes, 118; Excelsior G. B. Co. v. Stayner, 58 How. 275 ; 25 Hun, 91; Perry v. Hoadley, 19 Abb. N. C. 79.

Undoubtedly a different rule obtains in other states. Cook Stock & Stockholders, § 173, where the authorities warranting the statement that advantage may not be taken of failure to pay are collected. But he admits that the rule is different in Hew York. Id. § 174.

Reliance is placed by plaintiff upon the case of Buffalo & Jamestown R. R. Co. v. Gifford, 87 N. Y. 294. This case was disposed of in the supreme court respecting this question upon two grounds, that the plaintiff agreed to take the stock before the organization of the corporation, and that such agreement was accepted, and that these acts constituted a binding contract. That after making the subscription defendant paid the ten per cent and thus ratified it. Buffalo & Jamestown R. R. Co. v. Clark, 22 Hun, 359.

This opinion also states: “The payment of ten per cent, undoubtedly is a prerequisite to a valid subscription.’’ The court upon appeal seems not to agree to the latter proposition. But it was not speaking of a case where the single element of subscription stands alone, nor does it express disapprobation of its. own prior decisions, or those of the supreme and other courts upon that subject. It is easy to see that the case falls within the principle of the cases first cited, and can be upheld under them as there was present an original subscription and subsequent ratification, while upon the question of subsequent payment the case is supported by all the authorities. We are, therefore, left to conclude that a change of the rule was not intended to be announced.

These views lead to a reversal of tjie judgment appealed from.

White, J., concurs.

Judgment reversed.


author: Herrick, J.

text:
    John Albert, Resp’t, v. New York Central and Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Master and servant - Appliances—Contributory negligence.
    A brakeman, working in a yard in which some of the cars are defective, cannot recover for injuries where he either did not look to see whether the car, which injured him, was defective, or, seeing the defect, which was obvious, did not attempt to avoid the danger.
    Appeal from a judgment in favor of plaintiff.

      Harris & Rudd (Hamilton Harriot counsel), for app’lt; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Herrick, J.

—This is an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $5,386.74,'damages and costs. The action is on account of injuries received by the plaintiff in attempting to couple cars in the freight yard of the defendant at Weehauken, on the 27th day of January, 1892. The plaintiff was employed by the defendant as a brakeman, and he had been so employed for about a month, working the most of the time in the freight yard at Weehauken, making and breaking up trains and placing cars. In performing such services, it was his duty to couple and uncouple cars. At the time of receiving the injury, a car that had arrived in the freight yard had just been weighed and moved from the scales, and stood motionless upon the track. This car was what is known as a crippled car.’ At one end of the car the extension block, bumpers and drawhead were all gone ; there was no link nor link pin; there was a log chain attached to what is called the “ kingbolt,” under the car, which came to the end of the car, dropping down therefrom, and dragging on the ground about eighteen inches, which chain was used to couple the car with the other cars in place of the coupling link. The absence of the extension block, bumpers and drawhead from this car permitted the dráwhead of a sound car coming in contact with the crippled car to pass underneath it, so that there would be only a space of about four inches between them. The drawhead is the iron projection at the end of the car into which the coupling link is inserted. It is customary, upon the arrival of cars into the freight yard, to inspect them, and any that are found crippled, or in any respect defective, to mark them with chalk There is a controversy in this case as to whether the car in question was so marked. The plaintiff claims that he looked, and did not see any marks. The defendant’s witnesses say that the car was plainly marked on both sides. While it seems to me that the evidence that the car was marked largely preponderates, still it must be assumed, for the purposes of this discussion, that the jury found that there were no marks on the car indicating that it was crippled or defective. While this crippled car was standing upon the track, another one had been weighed, and moved from the scales, apd the plaintiff 'proceeded to couple it to the crippled car. His testimony is that he walked in front of the sound and moving car towards the crippled car; that he went in between them when they were eight feet apart, and upon their coming together his arm was caught between them and badly crushed. The exact manner in which the accident happened does not clearly appear. The plaintiff testifies that at the point where they came together there was a curve in the track, bringing the sides of the cars on the inside of the curve close together, the distance between them widening towards the outer side of the curve; and that in attempting to get from between the cars he had his arm in advance of his body towards the inner side of the curve, and that it was caught between the outer edge of the cars and crushed, while his body was only slightly pressed, not seriously injured, by reason of the greater distance between the cars where his body was. The deféndant’s witnesses, on the contrary, say that the track at that point was perfectly straight, and that at the time of the happening of the accident the body of the- plaintiff was not between the cars; that only his arm extended between them when it was caught. The accident happened about three o’clock in the afternoon of a clear day. The plaintiff’s claim is that he was not employed for the purpose of handling crippled cars, except when they were marked crippled ; and the claim here is that defendant is liable for the accident by reason of permitting this crippled car to remain in the yard in its crippled condition without being marked or designated so as to notify the plaintiff that it was a defective car.

The plaintiff, in entering the defendant’s employ, assumed the ordinary risks incident to the service; and in continuing in its employ in the Weehauken yard, and rendering the services heretofore enumerated, without objection or complaint, he assumed the ordinary risks of such services there. But the defendant cannot rely upon such assumption of risks on his part, unless it takes reasonable precautions to insure his safety while in the performance of his duty. Crown v. Orr, 140 N. Y., 450; 55 St. Rep. 834; Ford v. L. S. & M. S. R. R. Co., 124 N. Y. 493-498 ; 36 St. Rep. 494. Among the reasonable precautions that it was the duty of the defendant to take to insure its employes’ safety was the inspection of cars to ascertain their fitness for service. Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y. 462; Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398; 26 St. Rep. 767. And within the principle of the last cited cases it will be assumed that the defendant was negligent in this case in leaving the car on the track in its crippled condition without being marked by it as a crippled or defective car. But, while the defendant owed to the plaintiff the duty of supplying him a reasonably safe place in which to work, and, as a part of that duty, the inspection and marking of its defective cars, its duty in that respect is measured by the danger to be apprehended and avoided. Goodrich v. N. Y. C. & H. R. R. R. Co., id. The plaintiff, in turn, owed a duty to himself and to the defendant, which? was also to be measured by the dangers of the place where he was at work, and the risks to be encountered. The complaint of the plaintiff is that he vías not notified of the dangerous condition of the car, by reason of its not being marked; that no notice was given by" the defendant of the danger to which he was exposing himself by endeavoring to couple these cars. It needs no argument to show that if the plaintiff had actual notice of the dangerous condition of the car in question, and the risk to which he was exposing, himself, and he then went on voluntarily and encountered the danger, he would have no cause of action against the defendant for the resulting injui-y. The fact that the defendant had neglected its duty would not warrant him in rushii2g into a palpably dangerous position. It has been held in case of travelers along a highway approaching a railroad crossing that it is their duty to look and listen, to look both ways for approaching danger; that, if they fail to look, it is negligei2ce on their part; and if, by looking, they could see the approaching danger in time to avoid it, and still go on, that they are negligent, either in not having looked, for in looking they must have seen the danger, or, having looked, in still going on; that the duty they owe to themselves and to the railroad company iti such a case, in approackiz2g points of danger, is one of active negligence. Bomboy v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429 ; 14 St. Rep. 291; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369; 11 St. Rep. 169 ; Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; 36 St. Rep. 272; Daniels v. L. I. R. Transit Co., 35 St. Rep. 435. It seems to me that the duty of an employe working with and among cars, being ziecessarily a dangerous employment, demands on his part active vigilance to avoid danger, to at least the same degree that is demanded of the tz'aveler along the highway approachizig railway crossings. In this place where the plaintiff was employed there were crippled and uncrippled cars. It was his duty to look, azid, if he did look, and saw the dimgerous condition of the car, and did not attempt to avoid the consequences of handling it in such condition, he was negligent; and if he did not look, and thereby failed to see its condition, which he 2night have seen by looking, it seems to 2ne lie ivas equally negligent. The crippled car was motionless. Its condition was apparent. It was broad daylight. He was approaching it with his face towards that portion of it that was crippled ; and it seems to me that, if he looked, there was no possibility of his avoiding seeing its condition ; and if he did not look he failed in taking the ordinary precaution that a man should take, engaged in such employment. If the car was so crippled that he saw its cozidition, or could have seen it by looking, he was guilty of contributory negligence in going in and continuing in a dangerous position after he saw its condition, or going in and continuing in such a position without having looked, when, by looking he could have seen its condition, and avoided the danger. He had only to look, and refrain from going in between the cars, or, being in, to step out from between tliezn, and be safe. In Millott v. N. Y. & N. E. R. R. Co., 46 St. Rep. 145; 19 N. Y. Supp. 122; affirmed, 139 N. Y. 642; 54 St. Rep. 932; the defect in the car which caused the accident was not apparetit. Here, as we have seen, it was perfectly apparent. Iti Mahoney v. N. Y. C. & H. R. R. R. Co., 39 St. Rep. 911; 15 N. Y. Supp. 501; affirmed, 131 N. Y. 623 : 43 St. Rep. 962, tile bumper was absent upon only one side of the car. The accident happened about midnight, and there is nothing in the case to indicate whether he could see the condition of the car or not. Here, as before stated, the accident occurred in broad daylight, and the defect was one that was perfectly visible to any one looking.

It seems to me, therefore, that the plaintiff has failed to prove the absence of contributory negligence upon his part, and for that reason the judgment should be reversed, and a new trial granted ; costs to abide the event.

All concur.


text:
    Springfield Fire and Marine Insurance Company, App’lt, v. Village of Keeseville, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Municipal cobpobation—Village—Wateivwobks.
    A village, which maintains, separate from its fire department, a system of waterworks supported by general taxation and by water rents, is liable for the destruction of property by fire resulting from the defective condition of such waterworks.
    Appeal from a judgment sustaining a demurrer to the complaint.

      Boynton & Mason (A. W. Boynton, of counsel), for app’lt; McLaughlin & Rowe (C. B. McLaughlin, of counsel), for resp’t.
   Herrick, J.

—This is an appeal from a judgment in favor of the defendant, and against the plaintiff upon a demurrer interposed by the defendant to the complaint of the plaintiff. The plaintiS alleges that it is a fire and marine insurance company, duly incorporated under the laws of Massachusetts, and licensed to do a fire insurance business within this state; that the defendant is a village, duly incorporated under the laws of the state of Hew York, and that, for some six years prior to the commencement of this action, the plaintiff has carried on the business of fire insurance within the limits of the defendant; that for the privilege of so doing, and having the protection of the waterworks, the fire department and appliances of the defendant, it has paid an annual tax to the defendant; and further alleges, upon information and belief, that the defendant is, and was at the time of the transactions set forth in the complaint, the owner and in possession and control of a system of waterworks and fire appliances, consisting of pumps, water mains, pipes, hydrants, and water hose, and, in connection therewith, has and had firemen for the purpose of extinguishing fires; that the said waterworks and appliances were purchased and maintained by the defendant, by taxes levied and raised upon the taxable inhabitants of the village, and upon the plaintiff and other insurance companies, and by water rents paid by such inhabitants ; that, by reason of the supposed protection from fire afforded by said waterworks and appliances, the plaintiff insured all property within the village, including that of Emily E. Brewer, 40 per cent, less than it did like property outside the limits of said supposed water and fire protection ; that one Emily E. Brewer was a resident of the defendant, and had been for several years, and paid her proportion of the aforesaid taxes, and that on the 6th day of October, 1892, a dwelling house of the said Emily E. Brewer, situated within the corporate limits of the defendant, caught fire and was burned and damaged to the extent of $4,450; that, at the time of such fire, said dwelling house was insured in the plaintiff in the sum of $5,000; and that the plaintiff paid said Emily E. Brewer her damages caúsed by such fire, to the amount of $4,450. The plaintiff further charges that, at the time of the fire, the defendant had wrongfully and negligently allowed and caused its waterworks, pumps, pipes and fire appliances to be and remain out of repair, broken, and weakened, stopped with mud and other foreign objects, to such an extent that water could not be thrown or put upon said dwelling house to extinguish the fire; and alleges that, if said waterworks and fire appliances had been in proper working order, the dwelling-house would not have been damaged to an amount exceeding $300. The plaintiff also alleges that the defendant employed incompetent and unfit men to care for and maintain its waterworks and fire appliances; and the plaintiff alleges that its loss, to at least* the extent of $4,150 was caused solely -by the negligence and wrongful and unlawful acts of defendant in failing to keep its waterworks and fire appliances in proper working order, and in failing to employ competent men to manage and care for the same. The plaintiff alleges that the said Emily E. Brewer has assigned and transferred to it all claims and demands against the defendant by reason of said fire and damages. The defendant demurred to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action.

From the reading of the complaint, it is somewhat difficult to determine whether the fire apparatus or appliances were a part of the waterworks system, or whether the fire department and apparatus was separate and distinct from the waterworks, merely obtaining its supply of water from the waterworks, and having no other connection with them. For the negligence of a fire department, as such, different principles are involved than in cases of the negligence of' other departments of a municipal government. Under the complaint in this action, negligence upon the part of the water department of defendant, as such, may be proved. The plaintiff, upon a demurrer, is entitled to the most favorable construction of the facts alleged in his complaint; and 1 shall, for the purpose of this discussion, assume that - the two departments are separate and distinct, and that the negligence charged is entirely in relation to the waterworks as such.

The questions raised are interesting, and somewhat difficult of solution. Municipal corporations possess two kinds of powers,-— one governmental and public ; and the other corporate or private. The first is given and used for public purposes, and, in the exercise of those powers, it acts as a municipal corporation. The last is given for corporate purposes, and, in the exercise of such powers, it is as a private corporation-or individual. Lloyd v. Mayor, etc., 5 N. Y. 369; Maxmilian v. Mayor, etc., 62 id. 160; Ham v. Mayor, etc., 70 id. 459. “ Where the service is* being performed for the public good, in obedience to law, and in which the municipality lias no particular interest, and from which it derives no particular benefit in its corporate capacity, the municipality is not liable for the improper or negligent performance of that service.” Maxmil ian v. Mayor, etc., 62 N. Y. 160; Smith v. City of Rochester, 76 id. 506; Ham v. Mayor, etc., 70 id. 459; Bieling v. City of Brooklyn, 120 id. 98-105, 106; 30 St. Rep. 811. The municipality is not responsible for the acts of the officers or agents performing such public services, although such officers and agents are designated by the municipality. The maxim “ respondeat superior ” does not apply. Maxmilian v. Mayor, etc., supra. As to those powers and duties which are private corporate powers and duties, and are not for the benefit of the general public, a municipal corporation is regarded as a legal entity, and is responsible for its omission to perform its corporate duties to the same extent that a natural person would be under the same circumstances. Conrad v. Trustees of Ithaca, 16 N. Y. 158-172 ; New York & B. S. M. & L. Co. v. City of Brooklyn, 71 id. 580 ; Platz v. City of Cohoes, 89 id. 219. It is sometimes exceedingly difficult to draw the distinction be tween what are public and what are private corporate powers and duties. “ The administration of justice, the preservation of public peace, and the like, although confined to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gasworks and waterworks, the construction of sewers and the like, are matters which pertain to the municipality, as distinguished from the state at large.” Dill. Mun. Corp. (3d ed.) § 58. Supplying water by municipal corporations is not a public function; it is purely a matter of private business. In re Long Island Water Supply Co., 24 N. Y. Supp. 807. The general public have no interest in it; it is purely a local matter, exclusively for the benefit of the village. When the waterworks are constructed, they belong to the village. The people of the village pay for them, and ordinarily receive rentals for supplying water. Fleming v. Village of Suspension Bridge, 92 N. Y. 368; Pettengill v. City of Yonkers, 116 id. 558; 27 St. Rep. 531. And in Bailey v. Mayor, etc., 3 Hill, 531, it was held that the powers granted by the “ act providing a supply to the city of New York with pure and wholesome water were intended for the private advantage and emolument of that city, the state, in its sovereign capacity, having no interest in it; and that, therefore, the city was liable for the negligent construction of the dam by the employes of the water commissioners.” While this case has been criticised in some respects in several cases, such as Darlington v. Mayor, etc., 31 N. Y. 164, the principle decided has never been overruled or depaited from, but has been approved in Walsh v. Trustees of New York & Brooklyn Bridge, 96 N. Y. 427; Ehrgott v. Mayor, etc., id. 264,—and the same principle has been maintained by the elementary writers. “In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, as to construct w'orks to supply a city with water or gas works or sewers and the like, the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work is required by law to be let to the lowest responsible bidder.” Cooley, Const. Lim. (3d Ed.) 249; Beach, Pub. Corp. § 1140.

The complaint must be read in connection with the statutes governing the defendant. They are as much a part of the complaint as if written in it. The defendant was authorized by chapter 181 of the Laws of 1875, and various acts amendatory thereof, to construct and maintain waterworks to supply its inhabitants with water. The president and trustees constitute the board of water commissioners. Laws 1891, c. 74. The defendant receives rents for supplying water. It has control over all the employes connected with the waterworks. It can employ and discharge them at pleasure. They are its servants. The construction and maintenance of the waterworks is something that was not forced upon it by the power of the state. It could act under the law authorizing it to construct and maintain waterworks, or refuse to act, at its pleasure; but, having accepted the power and authority granted, it became responsible ftir the proper exercise of such power. Cain v. City of Syracuse, 95 N. Y. 83.

Considerable stress was laid in the trial court upon the burdens that would be thrown upon municipalities by holding them responsible in damages in cases like the one before us. While I am not insensible to such considerations, and while, perhaps, the court may properly give weight to them in arriving at its determinations as to what the law is, still it seems to me that it would be going too far to hold that where a municipal corporation recel yes money for the support and maintenance of its waterworks, has absolute power to employ and discharge the men necessary to care for and maintain such department, it shall in no case be held liable for damages resulting from employing incompetent men, and for knowingly and negligently permitting its waterworks, mains, and pipes to become and remain out of repair and unfit for service. To so hold would remove one great incentive to furnishing an efficient water service. Ordinarily, where there is no responsibility, there is an inefficient public service. Every administration in charge of a municipality is anxious for public approval. That approval largely depends upon the tax rate; and to hold the municipality responsible in damages for any lack of reasonable care and diligence in maintaining their public works, which results in injury to property, will result in increased diligence to prevent any increase in-the municipal charges. Municipalities, like individuals, are very sensitive to attacks upon the purse. Increased pecuniary responsibility begets increased care and diligence. It seems to me that, "in matters like these we are now considering, it is no hardship, but, on the contrary, it will result in a more efficient public service, if municipal corporations are held responsible for the same degree of care and diligence that they are held to in respect to streets and sewers. As .expressed by chief justice Andrews: “The language of the .cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of the municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. There must be willful miscom duct or culpable neglect to create liability.” Hunt v. Mayor, etc., 109 N. Y. 135-141; 15 St. Rep 62. See, also, Danaher v. City of Brooklyn, 119 N. Y. 241; 29 St. Rep. 391.

The water to be supplied by the defendant, and for which the plaintiff and its assignor contributed to pay, was, among other things, for the purpose of extinguishing fires; and it seems to me that where a person can prove that, by the willful misconduct or culpable neglect of the defendant, he was prevented from the use of water for such purpose, whereby he has been damaged, he establishes a cause of action. The complaint here is broad enough to permit evidence of willful misconduct or culpable neglect, which, being proved, it seems to me, would entitle the plaintiff to recover. This is not a case where there is simply an inadequate supply of water, but one where, by the mismanagement and neglect of the municipal authorities, the plaintiff’s assignor has been prevented from using the water that was otherwise to be had, that she had paid to receive, and that the defendant had, impliedly at least, contracted to furnish.

The case of Danaher v. City of Brooklyn, supra, was an action to recover damages for injuries occasioned by drinking impure water at a public well in said city. The court there said : “This water was not furnished for a compensation paid for its use. There was no contract relation between the city and those who used it. The well was for public gratuitous use. * * * It owned this well as it owned its other property kept for public use, such as streets, parks, and public buildings; and it owed the duty of reasonable diligence to care for it as it was bound to care for such other property. Its liability for unwholesome water in any of its public wells must rest upon negligence.”

The city was held not liable, because there was no evidence of negligence on its part in caring for the well; but the prevailing opinion held that it was undoubtedly the duty of the city to keep wells and pumps in good order. Keep them in good order for what purpose ? To supply good and wholesome water for potable purposes; that was the function to be performed by the wells and pumps.

The function to be discharged by the waterworks of the defendant is, among others, to furnish water to extinguish fires. It is the duty of the defendant to keep them in such condition that they may discharge that function. There may be a distinction between those cases where the injury complained of would not have happened but for the municipality undertaking to exercise a power and negligently exercising it, so as to create a dangerous condition, which would not otherwise exist,—as to dig and maintain wells, and allowing the water to become unwholesome and poisonous, or to erect a dam and negligently maintain it, or by its negligent care of waterworks, letting water escape so as to undermine a street,—and those cases where the same danger would exist and the same injury result if the municipality had never assumed to exercise the power in question. Danger from fire always exists, and lack of water to extinguish it, resulting in damage, is no new condition of danger created by the defendant. But, when the defendant assumed the power of creating and maintaining waterworks, it assumed a twofold obligation,—one not to create any new source or condition of danger by the negligent exercise of sirch power; and the other to remove, or at least diminish, existing conditions or sources of danger, such as danger from fire. The first duty, that of not creating any new conditions of danger, it owes to all the world; the second, the removal or diminishing of existing conditions or sources of danger, it, perhaps, does not owe to the general public, but only to those who contribute to pay the expense of exercising such powers.

In the Danaher Case, supra, the court, it will be observed, laid stress upon the fact that in that case there was no contractual relation between the city and the parties using the water; that it was gratuitously furnished. In this case the facts are directly contrary. The water is not furnished gratuitously by the defendant. The waterworks of the defendant are not supported and maintained by general taxation, but by rents, which rents are measured to a certain extent by the needs of the persons using the water and the amount consumed by them. The water commissioners are authorized to establish a scale of rents to be charged and paid to them “for the supply of water, to be called ‘ water rents,’ and appropriated to different classes of buildings in said village, in reference to their dimensions, values, exposure to fires, ordinary or extraordinary uses for dwellings," stores, shops, hotels, factories, livery stables, barns, and all other buildings, establishments and trades, yards, number of families or occupants, or consumption of water as near as may be practicable.” Section 13, chap. 181, Laws 1875. The rents are to be paid to them “ for the supply ” of water. One of the things, to be taken into consideration in determining the amount of such rentals is the exposure to fire of the building to be supplied with water, and, as I think may be a fair interpretation, the value of the protection from fire afforded by the water supply. In other words, the water rent payer pays for water to be used in case of fire, to save him from loss and damage; and it seems to me that, where a person pays that rent, he has some rights, and the defendant is under some obligation 'to him. As we have seen before, when a municipal corporation assumes or accepts powers and duties that are not public in their nature, it is to be treated in relation to those powers and duties the same as a business corporation or a natural person would be. If a business corporation or natural person had made a charge for furnishing water, and had accepted payment of that charge, we would consider that a contract to furnish water to the person paying : and if that business corporation; by sheer mismanagement, the employment of incompetent men and by negligence, had prevented the use of the water it had agreed to supply, when it was most needed, the courts, I think, would hold such corporation or person liable for the direct resulting damages. The defendant has gone into the water supply business. It is a private corporate business, conducted for its own benefit, and not for the general public ; and it would seem to legitimately follow from the different responsibilities, recognized by the courts of the state, for acts done by municipal corporations in the discharge of duties that are public in their nature a-nd those that are only for the benefit of the particular municipality, that the defendant is liable as for a breach of contract. While such a conclusion seems to result naturally from the principles of the cases I have referred to, still, I think, it is not entirely a correct one. The defendant, after all, is a purely public corporation. All the powers it has are for the public benefit,—some for the general public; some for the public within its boundaries. It is not a corporation conducted for pecuniary gain or profit, and should not be held to the same strict accountability as one conducted entirely for gain. It should not be regarded as an insurer or guarantor. But, a public corporation having agreed to erect and take charge of a public work or enterprise for the people within its boundaries, those who contribute of their means to the erection and maintenance of such public work have a right to demand from it reasonable care and diligence in maintaining it, so that it will discharge the functions for which it is created, and for which the contributors pay, and to hold it liable for a lack of such care and diligence. That, I think, can fairly be held to be the nature of the implied contract between the water rent payer and the defendant. This duty and obligation the defendant, by its demurrer, admits that it failed to perform. It admits that it “ wrongfully and negligently allowed and caused its said waterworks, pumps, pipes and fire appliances to become and be put out of repair, broken and weakened, stopped with mud, and other foreign objects, and unfit for use to such extent that water could not be thrown or put upon the house to extinguish the fire thereinand it admits that, “ if said fire apparatus and waterworks had been in proper working order, said fire could have been extinguished without damaging said house to exceed three hundred dollars.” The plaintiff alleges, and the defendant admits, that it “ employed incompetent and unfit men to care for and maintain its waterworks and fire department." The plaintiff alleges, and the defendant admits, that the plaintiff’s loss of $4,150 “ was caused solely by the negligent and wrongful and unlawful acts of defendant in failing to keep its waterworks and fire appliances in proper working order, and in failing to employ competent men to manage and care for them.” These allegations and admissions of negligence and of wrongful and unlawful acts, resulting in injury to plaintiff and its assignor, are very broad; and to hold that they do not constitute a cause of action is practically to hold that there is no responsibility attached to municipal corporations, no matter how culpably or willfully negligent they may be in discharging corporate duties they have voluntarily assumed to discharge, and that there is no penalty for the unfaithful discharge of such obligations, unless some official performs some overt act which rises to the dignity of a crime. It seems to me that the complaint sets' forth a cause of action, and that the demurrer should be overruled.

I have examined the authorities of other states cited upon the brief of counsel, and others. This discussion has already ex tended so far that I do not desire to prolong it; neither do I see that any profit can be gained by a discussion of those cases. Some of them are in states where there is no municipal liability except that derived from statute. Some arose out of the negligent acts of officials of the fire department, and where it was held that officers of the fire department were not the agents or servants of the municipality, for whose negligence it was liable. In others no distinction is made between pownrs conferred and duties performed for the welfare of the general public and those that are corporate in their nature,—a distinction which, as we have seen, is well recognized in this state. In some there was an inadequate supply of water. In others it turned upon the exercise of the discretion of the authorities in the location of apparatus. Special features distinguished those cases from this. There are also some cases directly in conflict with the views herein expressed. It is sufficient to say that, after a consideration of the views of the courts in the various cases referred to, it seems to me that, in a case where the issue is purely one of negligence, the conclusion at which I have arrived as to this complaint is in consonance with the principles relating to municipal liability recognized by the courts of this state, although, so far as can be gathered from the reported cases, never before applied in an action like the one now sought to be maintained.

The judgment appealed from should be reversed, with costs of this appeal; the demurrer overruled, with costs, with leave to the defendant to plead over.

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


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    Emeline Pettit, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Nuisance—Pumping station.
    A pumping station maintained near a highway by a railroad company, is not a nuisance, though horses are sometimes frightened by the smoke therefrom.
    Appeal from a judgment of nonsuit.
    The decision of Mr. Justice Fursman on granting the nonsuit is as follows:
    This question is not altogether free from difficulty. I foresaw yesterday that it must arise from the direction which the evidence vTas taking under the examination of counsel. Whenever a franchise is granted by the legislature to erect a structure or to carry on a business, the erection of the structure or the carrying on of the business is not and cannot of itself be unlawful or a nuisance. It may become a nuisance by reason of the maimer of its operation or of its construction, or by reason of its location, under certain circumstances. The structure being thus authorized by the legislature, and it being therefore legal, and not a nuisance of itself, everything that is necessarily and naturally incident to its operation is embraced within the franchise, and is therefore not a nuisance, although it may operate as a nuisance and damage to the injury of some. In such a case the law says it is damnum absque injuria,—an injury from which damages do not flow. Now, this structure was a lawful structure, and was authorized by the legislature, because it is within the franchise granted by the general railroad act. It is a necessary incident to the operation of the railroad that they should take water, and, where they cannot obtain it by gravity, they can take it by operation of pumps. They can operate pumps by steam, and use the coal which generates and discharges smoke, and, of course, generates and discharges steam, and which is necessarily accompanied by considerable noise. These things are lawful, because they are naturally and necessarily incident to the operation of the machine, which itself is authorized by the franchise granted by the legislature. If, however, this machine is so located that its operation necessarily becomes a nuisance to others, when its location might have been such that it need not and would not become a nuisance to others, I think the law is that it may be declared a nuisance by reason of such location, and damages may be recovered by one who receives injuries or damages peculiar to himself.
    Now, there are two difficulties, it is claimed, in the way of recovery in this case. The first is that the evidence does not show this pump and the operation of it to be a public nuisance. The proof as to the location (and so far it is in accordance with the allegation in the complaint) is that it was erected alongside of a highway (a much frequented highway); that it emitted smoke and steam, and made some noise. The injury, so far as the plaintiff was concerned, is wholly attributed in the proof to the smoke coming out of this pumping machina, and descending upon and across the highway and its vicinity. There is no pretense or claim in the proof that the emission of steam or the noise of machinery had anything to do with the frightening of these horses. Now, the proof is that it is only when the wind is in a certain quarter that the smoke crosses the highway at this point; and there is no proof Whether the wind is in that quarter and the smoke therefore comes across the highway once a day, once a -week, or once a year. It did on this occasion the wind being northerly, and the proof being that, when the wind was northerly, the smoke crossed the highway at this point. Now, is it to be said that a structure is a, nuisance, because it is so located that, at some particular timq and under some particular circumstances, which are not proved to. be frequent or common or usual, a certain result may flow, such as in this case ?
    Another objection raised is that the complaint does not allege that this machine was originally improperly located,—located so that, by reason of its location, it became a nuisance, or that, by reason of its location (its operation in this location), it is maintained as a nuisance. I think the complaint is defective in this particular. I do not think that upon either of these grounds the plaintiff has maintained a cause of action on the proof, and I, although reluctantly, grant a nonsuit.
    N. A. Calkins, for app’lt; Ashbel Green (F. L. Westbrook, of counsel), for resp’t.
   Per Curiam.—

We think the judgment should be affirmed, for the reasons stated by the learned trial judge in granting the motion for a nonsuit; and see Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11; 58 St. Rep. 431. The trial judge was correct in holding that the evidence did not show that the pump and the operation of it were a pulic nuisance. We think, on the evidence, he was not required to submit the question as to its being such to the jury; hence the case of Morton v. Mayor, etc., 140 N. Y. 207 ; 55 St. Rep. 413, and kindred cases cited by appellant, do not apply. All that was shown was that, when the wind blew in a certain direction and in certain conditions of the atmosphere, the smoke from the defendant’s pump building settled down on the high-pry. It did no appear how often this happened. If defendant’s building and its operation were a nuisance, no railroad company could ran its trains along or near a highway or through a public street, because, when the wind should blow in a certain condition and in certain conditions of the atmosphere, the smoke from its engines wouldsettle down, as itoftendoes, onthestreet. Forthesamereason, a manufacturing establishment could not be located on or near a highway or street. Morton v. Mayor, etc., supra, was a case where the city placed a building with pumping machinery on its premises, adjoining those of plaintiff, and it was shown that the noise and vibration produced by the operation of the machinery rendered plaintiff’s premises untenantable. The other cases cited by plaintiff are of the same character. They were all cases of undoubted nuisances, the effect of which, in each instance, was to practically deprive the complaining party of his property. Those authorities were very different from this case, where all that appears is that, when the wind is in a certain direction, occasionally (how often is not known) the smoke from the defendant’s structure settled down on the highway.

The judgment should be affirmed, with costs.

All concur.


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    John Kiernan, Resp’t, v. Dutchess County Mutual Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Insurance—Fire—Forfeiture—Waiver.
    Wliat acts óf the company, after a loss, will amount to a waiver of the incumbrance clause in a policy of insurance.
    Appeal from a judgment in favor of plaintiff.

      Wilkinson & Cossum (Robert F. Wilkinson, of counsel), for app’lt; Howard Chipp, Jr., for resp’t.
   Herrick, J.

—The most serious question raised upon this appeal is upon the inadmissibility of a chattel mortgage in evidence. It is contended that the mortgage is a forfeiture of the policy, either entirely or in part It seems to me that the forfeiture was waived by the acts of the defendant. Right after the fire the president of the company visited the scene of the fire, inspected the ruins, and conversed with the plaintiff; and it was after that that the plaintiff, with the defendant’s agent, made an arrangement for an appraisal, and an appraisal was mada Proofs of loss were also subsequently put in, and accepted by the defendant. It seems to me that these acts constitute a waiver. Brink v. Hanover F. Ins. Co., 80 N. Y. 108; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Roby v. Am. Cen. Ins. Co., 120 N. Y. 510; 31 St. Rep. 560; Trippe v. Provident Fund Society, 140 N. Y. 23; 55 St. Rep. 380. The effect of the chattel mortgage as a forfeiture having been waived, the defendant was not injured by the court not receiving it in evidence. I see no occasion for an opinion.

The judgment should be affirmed, with costs.

All concur.


author: Davy, J.

text:
    David K. Bell et al., Pl’ffs, v. City of Rochester, Def’t.

      (Supreme Court, Monroe Special Term,

      Filed July, 1894.)

    1. Injunction—After judgment.
    An injunction cannot be granted upon affidavits after the final judgment has been rendered.
    2. Same—Municipal corporation.
    Where a city is, by its charter, vested with certain discretionary powers as to the mode of making public improvements, such discretion cannot be interfered with by injunction, at least so long as it is acting within the scope and authority, vested in it by the legislature.

      Hubbell & McGuire, for pl’ffs; C. D. Kiehel for def’t.
   Davy, J.

—This is an application for an injunction order to restrain the city of Rochester from constructing an overflow outlet sewer in connection with the Bast Side trunk sewer, and from permitting any of the contents of the trunk sewer from being conducted through the overflow into Thomas creek.

The motion is based upon affidavits and the final judgment obtained in this action in 1889, granting a perpetual injunction restraining the city of Rochester from permitting sewage to be discharged from Monroe avenue or Nichols park sewers into Thomas creek, or into any of the creeks, streams or waters flowing through the town of Brighton, upon the ground that the same is a nuisance and detrimental to the public health.

Tlie court directed that the issuing of the injunction should be staid for a reasonable time, to enable the city to devise some means to dispose of the sewage.

It appears, from the affidavits read upon this motion, that the city is endeavoring, in good faith, to comply with the order of the court: that it has caused to be constructed, at great expense, what is known as the “Bast Side trunk sewer,” fahich will carry off all the sewage from Monroe avenue outlet aud Nichols park sewers, and empty it into Genesee river, so that no sewage from these streams, or any others in the city of Rochester, will empty into Thomas creek, or into any of the creeks or streams in the town of Briuhton.

It is claimed by the city officials having charge of the construction of the trunk sewer, in order to provide an outlet for the water that will be liable to accumulate in said sewer during unusual rainfalls and freshets, and to prevent it from setting back into the lateral sewers and flooding the cellars in the eastern part of the city, that it is necessary to construct several storm overflows along the line of the trunk sewer, and that the overflow in question is to be arched over with solid masonry, commencing at a point in the trunk sewer near the junction of Culver street and University avenue, and extending to Thomas creek in the town of Brighton.

Mr. Kuichling, the chief engineer of the water-works department, says that the present capacity of the trunk sewer at University avenue is about thirteen times greater than the present maximum volume of sewage, and that the storm overflows will be necessary only in case of unusual rainfalls and freshets, and that the water that will flow at such times out of the trunk sewer into the overflows will not contain any appreciable amount of sewage. So that the quantity of sewage, if any, that may eventu-" ally escape through the overflows into Thomas creek, is speculative and uncertain. But, independent of the question as to the quarn tity of sewage that may eventually escape through the overflows, this court, upon this application, has no power to grant an additional or supplemental injunction.

A court of equity derives its authority to grant an injunction order from the Code of Civil Procedure, and there is no authority in the Code authorizing the granting of an injunction upon affidavits, after the final judgment has been obtained.

It was held, in Jackson et al. v. Bunnell et al., 113 N. Y. 219 ; 22 St. Rep. 975, that, under the laws of this state, there is no authority for granting an injunction after final judgment. The restraint, if any, must be contained in the final judgment, or it cannot be granted at all. Gardner v. Gardner, 87 N. Y. 18; Code of Civil Procedure, § 602; High on Injunctions, § 1591.

The final judgment obtained in this action does not restrain the city from building sewers or storm overflows. This court, therefore, has no power, upon this motion, to grant a supplemental injunction to restrain 'the city from constructing the overflow in question. The relief asked for upon that point could only be granted, if at all, in an action brought for that purpose. I am of the opinion, however, that such an action could not be maintained, if it were brought. No claim is made by the plaintiff that the city, in constructing the overflows, is not acting legally, and within the scope and authority delegated to it by the charter and special act of the legislature. This court, therefore, would have no more right to restrain the city from building such overflows or subways than it would to prevent it from building the trunk sewer. No additional injunction is necessary to restrain the city from creating a nuisance by turning its sewage through the overflows into Thomas creek. The present injunction is ample and sufficient for that purpose.

It is claimed by the defendant that all large cities, in constructing trunk sewers, usually build overflows, and that the east side trunk sewer cannot be constructed properly without them ; that they are absolutely essential to relieve it from the volume and pressure of water that may accumulate in times of freshets, and to prevent the water at such times from setting back into the lateral sewers, and thereby endangering the health and property of the people residing in the eastern part of the city.

If the defendant’s contentioh is well founded, it is the duty of the city to provide some plan for relieving the trunk sewer at such times from the overflow water, and, in performing this duty, the municipality must be permitted to exercise its discretion as to the best mode of accomplishing it. The courts have no legal right to say that the overflows or subways shall be dispensed with, or how or where they shall be constructed. While the city must obey the order of the court granted in this action, and remove the sewage nuisance as soon as practicable, yet the mode of accomplishing it cannot be controlled by the courts. That must be left to the discretion of the municipality. Where a city, by its charter, is vested with certain discretionary powers as to the mode of making public improvements, the principle is well settled that such discretion cannot be interfered with by injunction, at least, not so long as it is acting within the scope and authority vested in it by the legislature.

Judge Dillon, in his work on Municipal Corporations, vol. 1, § 95, says : That where a municipal corporation, by its charter, is empowered to make public improvements, its determination, whether wise or unwise, cannot be judicially revised or corrected by the courts. It is made the duty of the city to remove, as far as it is able, every nuisance which may endanger health, but, he says, “ the courts, unless the power be transcended, cannot ordinarily interfere to control the manner in which it shall be done.”

In Lynch v. The Mayor, 76 N. Y. 60, the court held that a city, in constructing sewers, may exercise its discretion, subject to no review or question in any court, whether at any particular place it will build a sewer, and what waters it will conduct into an existing sewer, and what drains it will connect therewith.

Judge Rapallo, in Hines v. The City of Lockport, 50 N. Y. 236, says: “ Where the po wer is conferred upon public officers or municipal corporations to make improvements, such as streets, sewers, etc., and keep them in repair, the duty to make them is quasi judicial, or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise the power, or an erroneous estimate of the public needs, no civil action can be maintained.”

The above remarks are directly in point and applicable to this case. The city must be permitted to adopt its own plans for building the trunk sewer and overflows, and whether better plans might have been adopted, and the overflows dispensed with, are questions which this court cannot, upon this motion, judicially determine.

The motion, therefore, must be denied.