text:
    Thomas Flynn, Resp’t, v. The Central Railroad Co. of New Jersey, App’lt.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Jurisdiction — Foreign corporation.
    The superior court of New York has jurisdiction of an action by a resident of this state against a foreign corporation for an injury inflicted in another state where process has been legally served within the county.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial

      E. R. Terry, for resp’t; De Forrest & Weeks (G. Holmes, of counsel), for app’lt.
   Gildersleeve, J.

This action is for personal injuries alleged to have been sustained by the plaintiff through the negligence of defendant’s servants.

The defendant first challenges the judgment upon the ground that this court has no jurisdiction either of the person of the defendant or the subject of the action. At'the time the injuries complained of were received, and at the date of the bringing of the action, the plaintiff was a resident of Brooklyn; the defendant was a foreign corporation; and the cause of action accrued in the state of New Jersey.

The question was first raised by the defendant at special term. Judge McAdam decided it adversely to the defendant’s contention, and we concur in the result that he reached, for the reasons set forth in his opinion, 27 Abb. N. c., 31, from which we quote with approval:

“ The defendant claims that, because the injury was inflicted in New Jersey, and the defendant is a corporation created under laws of that state, this court has no jurisdiction, and that to obtain it against a foreign corporation, two things must concur: First, the plaintiff must not only be a resident of this state, but of the city of New York. Second, the cause of action must have arisen within the state of New York. The argument is based on the phraseology of subd. 7 of § 263 of the Code, which, in view of other legislation, is in some respects confusing. Section 1780 provides that an action against a foreign corporation may be maintained by a resident of this state * * * * for any cause of action.’ This section is a codification of § 427 of the former Code, which provided that an action against a corporation created by or under the laws of any other state * * * * may be brought in the supreme court, the superior court of the city of New York, or the court of common pleas for the city and county of New York, by a resident of this state for any cause of action.’ So that, prior to the new Code, jurisdiction of actions like the present, both as to parties and subject matter, was clearly vested in this court. The jurisdiction so conferred was permanently continued by the provisions of the judiciary article of the constitution, as amended in 1869, art. 6, § 12, and if § 263 of the Code revision, or any subdivision thereof, in any manner limits or abridges the jurisdiction which the court possessed at the time the revision went into effect, it is to that extent unconstitutional and void. Popfinger v. Yutte, 102 N. Y., 38; 1 St. Rep., 334. The right of action is transitory, McIvor v. McCabe, 16 Abb. Pr., 319; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182; Barney v. Burstenbinder, 7 Lans., 210; S. C., 64 Barb., 212, and if process is, as it was here, legally served within the county, the jurisdiction of this court, both as to subject matter and parties, is complete. In Brooks v. Mexican C. Co., 49 Super. Ct., 234; 50 id., 281; and Robinson v. Oceanic S. N. Co., 56 id., 108; 16 St. Rep., 583; aff’d, 112 N. Y., 315; 20 St. Rep., 741, the plaintiffs were non-residents of the state, a feature that distinguishes those cases from the one at bar, for the plaintiff here is a resident of Brooklyn in this state. In Brooks v. Mexican C. Co., supra, § 263 of the Code was discussed, and it was doubted whether this court could take jurisdiction against the force of its provisions. The constitutional objection to that section was neither discussed nor decided.
“ That phase of the question is squarely presented now, and, as the objection is unanswerable, it must be met and sustained. The opinion of the court of appeals in Robinson v. Oceanic S. N. Co., 112 N. Y., 315; 20 St. Rep., 741, supra, read in connection with that in the Popfinger v. Yutte case, 102 N. Y., 38; 1 St. Rep., 334, supra, clearly sustains the jurisdiction of the court as to both subject matter and parties.”

Upon the trial, all questions in dispute were submitted to the jury, under a very fair and comprehensive charge, which, as a whole, fully protected the defendant’s rights.

Many exceptions were taken by defendant’s counsel to the charge and to refusals to charge, all of which we have examined, and find none of sufficient merit to call for discussion here.

The jury found for the plaintiff. There was no error in the admission or exclusion of evidence; and, upon a consideration of the whole case, it cannot be he'd that the verdict is against the weight of evidence.

It is a case of conflicting evidence which falls within the rule that the verdict of the jury should not be disturbed unless there was error in the course of the trial.

The judgment and order appealed from are affirmed, with costs.

Dugro, J., concurs.


source: Caselaw Access Project

author: Gildersleeve, J.

license: Public Domain

text:
    Florice Von Ax Halsted, Resp’t, v. Jacob Halsted et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Bill of particulars — Marriage.
    In. an action for admeasurement of dower, where the issue is as to plaintiffs claim to be decedent’s widow, a bill of particulars setting forth the time, piace and witnesses to a non-ceremonial marriage, is sufficiently comprehensive, and plaintiff should not be required to give the last known address of said witnesses; the hour of the marriage, or particulars of acts, declarations or acknowledgments of deceased in proof of such marriage, as this would call for a disclosure of evidence and transcend the office of a bill of particulars.
    Appeal from order of special term.

      Lewinson & Falk, for resp’t; Platt & Bowers (John M. Bowers, of counsel), for app’lts.
   Gildersleeve, J.

This is an action for admeasurement of dower. The only issue between the parties arises from the denial by defendants of plaintiff’s claim that she is the lawful widow of defendants’ testator, one Jacob Halsted, deceased. The plaintiff, in pursuance of an order of the court, served a bill of particulars, alleging that “ the allegation of widowhood in the complaint is founded upon a non-ceremonial marriage, contracted and consummated on or about April 4, 1889, in the apartments then occupied by the plaintiff, at No. 356 West Fifty-sixth street, New York city, there being present, at the time of the making of the marriage agreement, one George Baillard and Helene D’Enghien, as witnesses.” The defendants then interposed their answers, and moved for an additional bill of particulars as to the following matters : “ (1) The last known addresses of George Baillard and Helene D’Enghien, the two persons mentioned in the bill of particulars, already furnished, as having been witnesses to the alleged marriage of the plaintiff with Jacob Halsted, deceased; (2) the place or places where it is claimed the plaintiff and the said Jacob Halsted cohabited together as husband and wife; (3) a statement of the persons and their addresses before whom acts were performed or declarations made which are claimed to establish such marriage, and the time and place where such acts or declarations were made; (4) a statement of any acknowledgment at any time made by the said Jacob Halsted of the plaintiff as his wife, the places where made, and the names of any persons, with their addresses, in whose presence such declarations were made; (5) the time when, and the names and addresses of any person or persons before whom it is claimed that the said Jacob Halsted held out or recognized the said plaintiff as his wife; (6) the hour of the day on April 4, 1889, the day alleged in the bill of particulars, when the alleged marriage was contracted in the apartments of the plaintiff, 356 West Fifty-sixth street.”

The motion was denied, and from the order denying such motion the defendants appeal to the general term.

We are of the opinion that the defendants’ demand is much too comprehensive. The demand of the defendants almost amounts to a demand that plaintiff shall supply them with a detailed statement of the means by which she expects to substantiate her claim at the trial; and clearly such a requirement calls for a disclosure of the evidence, and transcends the office of a bill of particulars. Roberts v. Cullen, 40 St. Rep., 672. The purpose of a bill of particulars is to limit the generality of the complaint and prevent surprise at the trial, not to furnish evidence ; and where the demand seems calculated to enable defendants to seek evidence to meet the claim, rather than to ascertain the items of which it is composed, it should be denied. Gee v. Chase Mfg. Co., 12 Hun, 630; Drake v. Thayer, 5 Robt., 694.

The bill of particulars should be confined to the claim, Code, § 531, and there are no allegations in the complaint that would warrant the court in compelling the plaintiff to comply with defendants’ demands. The complaint merely alleges that plaintiff is the widow of the testator, and, on defendants, demand, has already given a bill of particulars of the alleged marriage, the place, date and the names of the witnesses.

It is not the office of a bill of particulars to apprise defendants of the nature of plaintiff’s proofs or the names of her witnesses. Dempewolf v. Hills, 53 N. Y. Super., 105. Nor is it given or required for the purpose of disclosing to- an adverse party the case relied upon, nor the proof to substantiate the same. Its entire scope and nature is to furnish information to an opponent and to the court of the specific proposition for which the party contends. Stevens v. Webb, 4 Civ. Pro., 64; Higenbotam v. Green, 25 Hun, 214. But it is not its purpose to disclose the evidence relied upon to establish any proposition. Ball v. Evening Post Pub. Co., 38 Hun, 11.

The bill of particulars already given is all that is warranted by the allegations of the complaint, and it is sufficiently comprehensive to prevent defendants from being taken unduly by surprise at the trial.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., concurs.


author:
A. H. Joline, Referee.
      Sedgwick, Ch. J.

text:
    Frederick Marx et al. Resp’ts, v. Eugene A. Gross et al., App'lts.

      New York Superior Court, General Term,

      Filed March 6, 1893.)

    Pleading — Contract—Allegation op different contract in answer.
    An allegation in an answer of a contract of other terms or of a different character from that alleged in the complaint has no function or effect in determining the basis of the cause of action; and where there is, in such case, no denial of the contract set forth in the complaint, the allegations of the complaint are to be taken as true.
    Appeal by defendants from judgment entered upon the report of a referee.
   The following is the opinion of the referee:

A. H. Joline, Referee.

The plaintiffs bring this action to recover damages for the breach of an alleged contract made with defendants in the month of September, 1886, by which the defendants agreed to sell and deliver to plaintiffs all the crude glycerine to be manufactured by them during the season of 1886-87, at the price of deven cents per pound up to April 1, 1887, and for the balance of the season at seven and one-quarter cents per pound.

The defendants allege that on or about September 16, 1886, the plaintiffs, by their representative, “ falsely and with intent to deceive, alleged and represented to these defendants that the market price at that time of crude glycerine of the same grade and quality as that manufactured by the defendants was seven cents or less per pound,” and that relying upon such representations, and believing the same to be true, the defendants orally consented to sell to the plaintiffs at seven cents per pound all such glycerine as they should manufacture between said 16th day of September, 1886, and the 31st day of December, 1886, but no longer."

The defendants further allege that afterwards, on or about October 15, 1886, they learned that such allegations and representations were false, and,, upon information and belief, that the same were made to them willfully, and with intent to deceive them, and that thereafter they refused to deliver any more glycerine to the plaintiffs at the price of seven cents per pound. They further charge that the market price of crude glycerine of the same character and grade as that manufactured by them was at least nine cents per pound on September 16, 1886.

The question whether or not a false representation by a vendee to a vendor as to the market price of the vendor’s own product constitutes a defense to an action to enforce a contract induced thereby, is not, in my opinion, one upon which I may exercise independent judgment. The general term of this court has held that the affirmative allegations of the answer with respect to false and fraudulent representations of market value by the plaintiffs constitute a good defense to the cause of action set forth in the complaint. Marx v. Gross, 58 N. Y. Super. Ct., 221; 31 St. Rep., 403. That decision is controlling here.

The main question to be determined by the referee is, therefore, whether the defendant has established, by sufficient and competent proof, that the plaintiffs’ agent made false representations to the defendants of the market price of crude glycerine, knowing such representations to be false, and intending thereby to induce the defendants to make the contract.

The defendants were manufacturers of candles. Crude glycerine is a by-product of their manufacture. The plaintiffs were refiners of glycerine, and for some time prior to September, 1886, had been in the habit of purchasing the crude article produced by defendants. On September 16, 1886, one Schwartz, an agent or representative of plaintiffs, came to the defendants’ office, and said, to Mr. Gross, of defendants' firm, that he had come over to see about their glycerine. Mr. Gross testifies: “I said, very well; what is it worth ? ’ He figured around one way and another, and said, ‘ Mr. Gross, we can buy glycerine at six and one-half cents, but we will give you seven for your glycerine, because we are accustomed to using it, and understand its nature. ’ He said furthermore : ‘ I can assure you that that is the price.’ He took out a letter and said: 11 have here a letter from France.’ * * * I said: ‘Very well, Mr. Schwartz, if that is the price of glycerine, all well and good.’ ” On his re-direct examination he testified that Schwartz said: “ I have a letter from France and I can assure you we can buy glycerine at six and one-half.” This is substantially all of the testimony as to what representations were made by plaintiffs or their agents.

Assuming that Schwartz’ statement: “We can buy glycerine at six and one-half' cents ” was equivalent to saying that the market price of crude glycerine of the quality of that produced by defendants was six and one-half cents, the evidence does not satisfy me that these representations were false or fraudulent, or known to Schwartz to be false when he made them.

The subject of the market price of crude glycerine is one which, as is manifest from the testimony, is involved in much obscurity. The defendants, in order to account for their ignorance of the market value of their own product, had proved that there was and is no public exchange where crude glycerine is bought or sold, and that its market price is not regularly reported on any price-list, or at any exchange. Mr. Schweitzer, who was called as an expert, says: “ There is one kind of official quotation once a week, which is made between brokers, but it does not give the real tone of the market, it is very often speculative, but it isn’t based on real actual transactions.” He says: “It is very hard telling” about the prices of glycerine. He could not say what the price was on September 16,1886, and he produced some bills of imported glycerine, but they did not enable him to give the’price in September, 1886, with any confidence, and it is plain that he did not regard them as affording any “ criterion.” Mr. De Castro, another expert, could not tell definitely the market price of crude glycerine in September, 1886. He testified to one transaction in 28 Beaume French glycerine, and to the price he would have paid for 25 Beaume glycerine of quality “ as good as the best French saponified,” which in September, 1886, he says would have been about eight and three-fourths cents. Mr. Glatz, a third expert, when asked what the price or value of defendants’ glycerine yras in September, 1886, found it “ very difficult to say,” and his statement on the subject was based upon the single transaction testified to by Mr. De Castro, which involved considerable calculation by the witness. There is practically no evidence as to the market value in September, 1886, of domestic crude glycerine of the character of that produced by defendants.

It is unnecessary to review in detail, or to make a minute analysis of all the testimony. It is sufficient to say that the proof fails to show that Schwartz knowingly spoke falsely when he said that hé could buy glycerine at six and one-half cents. The fact that in the late summer and fall the glycerine market was generally a rising one, it had been slack in the spring, beginning to improve in the latter part of August, and the further fact that in the latter part of November, 1886, plaintiffs made a sale at twelve cents, do not convince me that on the 16th of September, 1886, Schwartz could not buy glycerine of about the same quality as defendants at six and one-half cents per pound, and that he knew that he could not. On all the proof I am constrained to hold that the defendants have failed to make out their case.

The next matter for consideration is whether or not the plaintiffs have sufficiently proved the contract set out in the complaint. The answer does not contain a formal specific denial of the contract alleged in the complaint. The defendants rely upon the allegations in paragraph 6 of the answer, to the effect that they orally consented to sell their glycerine at seven cents per pound up to December 31, 1886, but no longer. Elaborate argument has been made by counsel on the question whether such an allegation in an answer as to what the contract was is equivalent, under the rules of pleading, to the denial required by the Code.

The record shows that the original answer was in substance a general denial. The court at special term allowed defendants to amend by setting up affirmatively the alleged fraud and false representations. The general term, on appeal, struck out the general denial as inconsistent with the affirmative defense. This result would have compelled the defendants either to admit the alleged contract as a whole, or to lose their affirmative defense. They, therefore, made further application to the court, and were permitted to interpose their answer in its present form. While there are decisions which intimate that it is not a good denial of a contract to plead affirmatively that the contract was different from the one alleged, I think that under the answer in this case defendants were entitled to introduce evidence as to what the contract really was, and are not to be held to admit the entire allegation of the complaint in that behalf.

The testimony of Mr. Gross as to the conversation is not contradicted by any witness. But while it satisfies me that January 1, 1887, and not April 1, 1887, was the date at which the price was to be increased from 7 to 7J cents per pound, it also satisfies me that the contract was for the whole season, and not merely up to January 1, 1887.

James Thompson, for app’lts; George A. Black, for resp’ts.

Mr. Gross, after testifying to the offer of seven cents, and his response that “ if that is the price of glycerine all well and good,” adds, “ this was to he up to January at seven cents. I said, ‘All right, Mr. Schwartz, if that is the price you can have the glycerine.’ Just at that moment my brother happened in the factory. Mr. Schwartz went out, and in going out he said : ‘We will give you 7J cents after January 1to which there was no reply, either from my brother or myself.” Bearing in mind the fact that the defendants had been in the habit of selling all their glycerine to the plaintiffs, and that their sales were made of the season’s product, there is no ground for finding that the plaintiffs and defendants were, at the interview of September 16, 1886, treating with regard to anything but the product of the whole season. Mr. Gross does not say that the offer of Schwartz was only for the product to January 1, or that he limited the contract to that date. It was to be seven cents up to January. In other words, seven cents was fixed as the price up to January, and Schwartz suggested an increase to 7J cents for the remainder of the season, to which no objection was made by defendants. In my opinion the minds of the parties met, both as to what was to be sold, and the price at which it was to be sold.

The ordinary measure of damages in cases of this description is the difference between the contract price and the market price at the time and place of delivery. Dana v. Fiedler, 12 N. Y., 40; Parsons v. Sutton, 66 N. Y., 92. The plaintiffs have alleged no special damage in their pleading. They have contented themselves with proving the amount of glycerine actually sold by defendants to others on several occasions from November, 26, 1886, to July 12, 1887, inclusive, at 12, 13, llj- and Ilf cents per pound.

In Graham v. Maitland, 1 Sweeney, 149, it was held that in cases where the damages to be recovered depend upon the market value of the goods, the law contemplates a range of the entire market,and the average of prices as thus found, running through a considerable portion of time, and that proof of a single sale is insufficient to establish the value of the goods so sold. In that case the proof was of a single sale of four bales of cotton. The market value of cotton was easily ascertainable. In the present case the difficulty of ascertaining the market value of crude glycerine at any particular period of time is-abundantly demonstrated. The plaintiffs have furnished the best available evidence. The proof is not of a single sale, but a number of sales of the precise article contracted for, running through the season, and at rates not varying widely. There is no evidence that these sales were not made in the ordinary course of business.

I have revised the computations in accordance with my findings, and direct that the plaintiffs have judgment in the sum of $10,-034.21, with interest from April 14,1887.

Sedgwick, Ch. J.

The action was for damages for the non-delivery of goods agreed by defendants to be delivered to plaintiff.

The learned counsel for the appellants have argued on the appeal certain questions which were not presented on the trial, and did not occasion any exception to the rulings of the referee. These were the effect of the statute of frauds in the case and whether the principal amount if due, assuming the damages to be unliquidated, bore interest, and also as of what time the damages were to be computed.

I am of opinion that the allegation of the complaint of the contract, not being controverted by the answer, was to be taken as true for the purpose of the action. Code § 522; Fleischmann v. Stern, 90 N. Y., 110. For the purpose of determining the basis of the cause of action, the allegation of the answer, of a contract of other terms or of a different character, has no function or effect

The differences of fact between the parties have been fully and satisfactorily considered by the learned referee. The facts found by him were supported by evidence. The conclusions of law from the facts were correct Judgment affirmed, with costs.

Dugro and Gtldersleeve, JJ., concur


author: Dugro, J.

text:
    Frederick Marx et al., App’lts, v. Eugene A. Gross et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Costs — Taxation.
    Where a party obtains leave to withdraw a juror and amend on payment of costs and disbursements to date, the order is a final adjudication as to the right of the parties as to those items of costs, and they cannot he again taxed in favor of either party.
    Appeal from order denying motion for retaxation of costs and affirming the taxation made by the clerk.

      George A. Black, for pl’ffs; Foster & Thomson, for def’ts.
   Dugro, J.

During the trial the defendant obtained leave to withdraw a juror upon paying the costs and disbursements of the action up to date. He paid the costs and amended. A final judgment was obtained by the plaintiffs, who presented a bill of costs from which, upon taxation, the clerk struck all items included in the costs paid as a condition of obtaining leave to amend.

From an order made, at special term affirming the taxation this appeal is taken. The clerk’s action was proper. The items in question were finally disposed of by the order allowing the defendant to amend, he having paid the costs and amended. The order was an adjudication that the items covered by it belonged to the plaintiff ; they could not be again taxed in favor of either party. Seneca Nation v. Hawley, 32 Hun, 288; Provost v. Farrell, 13 id., 303.

Order affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., and Gildersleeve, J., concur.


author: Herrick, J.

text:
    In the Matter of the Proceedings to extend South Market Street in the Village of Johnstown through lands of Mortimer Wade et al.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Condemnation proceedings — Constitutional law.
    A local special assessment imposed on lands adjoining those taken, for raising the' money required to make payment therefor, is not a sufficient proviSon for compensation to comply with the requirements of the constitution. Nor is the fact that a sufficient provision is made for compensation made out by showing that it is a charge upon the village or other corporation which can be met by taxation.
    2. Same — Johnstown.
    The charter of the village of Johnstown in relation to the taking of land for streets does not provide a certain, ample and reasonably prompt method of providing compensation, and hence does not comply with the requirements of the constitution.
    Appeal from order appointing commissioners to ascertain and assess damages for lands taken for the extension of South Market street, in Johnstown.

      John M. Carroll, for app’lt, Younglove; Andrew J. Nellis, for village; Philip Keck, for Wade et al.; Harwood Dudley, for Thorne.
   Herrick, J.

This is an appeal from an order of the special term of this court, appointing commissioners to ascertain and assess the damages claimed by land owners for their lands taken for the extension of South Market street in the village of Johns-town.

Among other objections made to the proceedings is that the law under which they are taken does not provide a certain, ample and reasonably prompt method of providing compensation for the land taken.

If this objection is well founded, then the law does not comply with the requirements of the constitution, and the proceedings taken under it must fail.

It is contended in this case that the compensation for the land taken, or to be taken, is abundantly provided for, if in no other way, that it is or will be a charge upon or claim against the village, which can be met by taxation. I cannot assent to that view. I do not think the general power to raise money to pay the ordinary expenses of government, or to carry into effect the powers granted by the charter, is a sufficient authority or direction to pay land owners for property taken from them by such proceedings -.is here contemplated.

Unless the statute imposes a duty to pay, it cannot be implied from the mere fact of the taking of land for a city street. The authority to take, and the duty of the corporation to pay for the land taken, depend upon positive law. The authority to take will be ineffectual unless accompanied with proper provision for payment, but the duty of the corporation to pay the land owners must be found in the affirmative prescription or reasonable intendments of the statute. Sage v. City of Brooklyn, 89 N. Y., 189, 198-99.

Here the sums awarded for damages are not declared to be debts against the city, nor is it made the duty df the corporation to pay them. The only way in which the village would be responsible would be for neglect to set the necessary machinery in motion to make and collect the assessments. McCullough v. Mayor, 23 Wend., 459, approved in Sage v. Brooklyn, 89 N. Y., 204-5.

In the Sage case there was an express provision of the charter, which was held to apply to that case, requiring the comptroller of the city to pay the person adjudged to have been injured. An unqualified direction to pay, not out of assessments collected, or from any particular fund.

So in the Matter of Mayor of City of New York, 99 N. Y., 578, the city was directed to pay within four months after confirmation, and if not done, the parties might maintain an action. As the court said: “ There is no ambiguity about this provision, and the citizen is not turned over to the blind remedy of uncertain and complicated assessment and a devious and doubtful litigation.”

, In the charter of the village of Johnstown there is a way provided for compensating persons whose lands are taken in such proceedings as these; the question is whether it provides a certain, definite and adequate source and manner of payment.” 99 N. Y., 577.

Section 47 of chap. 303 of the Laws of 1881 (charter of the village) grants the trustees of the village power to open and extend streets and highways in the village. Section 48 as amended by chap. 136 of the Laws of 1891, prescribes the manner in which they shall exercise such powers. It provides that: “ Whenever the trustees shall have determined to lay out, alter, widen, straighten or extend any street, alley, lane, sewer, highway or public ground, and to take and appropriate the land necessary for the same, and shall have determined to assess the expense of such improvement, or any part thereof, as hereinafter provided, they shall give notice, etc.” It then proceeds td provide for the appointment of commissioners, and defines their duties, among others, that “ they shall determine and award to the owner or owners, so claiming damages as aforesaid, such damages as in their judgment such owner or owners will sustain by such improvement, after making due allowance for any benefit which such owner or owners may derive therefrom. They shall at the same time determine what real estate, if any, is benefited by such improvement, and shall assess and apportion the said damages, if any, upon such real estate, the owners of which shall -have had the opportunity to be heard as aforesaid, as nearly as may be in proportion to the benefit resulting therefrom; but if the whole of such damages cannot justly and equitably be assessed on the real estate, as above provided, then the said commissioners shall only assess such proportion thereon, as in their opinion will be equitable and just; and the balance thereof they shall assess or order to be paid by a general tax upon the village, provided said balance does not exceed the sum of $50,000 ; and such balance shall thereupon become a charge upon said village, and shall be added to and raised with the next general assessment or tax levy for village purposes, and the same shall be payable to the persons entitled thereto as soon as the same shall be collected as above provided.” Section 56 provides for the collection of assessments for public improvements, if the assessment is not paid that the land be sold, or that the trustees may, at their option, sue for the same in a civil action.

Ho provision, however, is made, as in the charters of some municipal corporations, for the village buying the property in case there are no bidders willing to pay the assessment upon it, thus insuring a sale and the collection of the assessment.

It will be seen that the law provides that the compensation shall be paid to land owners out of moneys raised by a special tax or assessment, which may, in the discretion of the commissioners, be placed wholly upon a limited area and number of people, or may, in part, be raised by a general tax or assessment

The constitutional validity of a law is to be tested, not by what has been done under it, but by what may by its authority be done. Stuart v. Palmer, 74 N. Y., 183-88.

■ As we have seen, under this law the assessment to raise money to pay for the land to be taken in these proceedings may be levied upon a limited area, and we must test the sufficiency of the law upon the assumption that the assessment is to be levied and apportioned upon a limited area Indeed, the resolution passed by the trustees to initiate these proceedings provides for an assessment upon a limited area of property and number of people; after providing for the extension of the street in question and announcing that the lands necessary are appropriated therefor, and setting forth the names of the persons whose lands said street will cross, it also sets forth the names of the persons whose lands and property will be benefited by such extension.

They then further proceed as follows ; “ Resolved, further. That the damages and expense for the extension, laying out and opening of said South Market Street as aforesaid as the commissioners hereafter appointed by the court may determine, shall be assessed and apportioned on the real property, in said village, owned by the persons lastly hereinbefore named, and hereby deemed likely to be benefited thereby.”

It is contended that the commissioners are the ones to determine who are to be assessed, and whether a portion of the expense shall be assessed upon the village generally, and that any determination" by the trustees is of no consequence. There is an apparent conflict in § 48 as to who shall determine how the expense shall be assessed. I shall not attempt to reconcile the different portions of the section with each other, or determine whether the trustees or the commissioners are to determine the area over which the assessment shall be spread. I have quoted the resolution to show the intention of the village authorities to confine the assessment to a limited area and to a limited number of people, and as we have already seen, the statute is so worded that assessments can be so imposed and the collection of the assessments so imposed is the means provided to make compensation for property taken.

I do not think that such a law provides “ a certain and definite and adequate source and manner of payment.” 99 N. Y., 577.

A remedy for compensation, contingent upon the realization of a fund from taxation for benefits within a limited assessment district, does not meet the constitutional requirements. Sage v. Brooklyn, 89 N. Y., 189-96.

A local special assessment imposed on lands adjoining those taken, for raising the money required to make payment therefor, is not a sufficient provision for compensation to comply with the requirements of the constitution.

It is hot certain, definite or adequate, and does not provide payment without any unreasonable delay, and any one at all familiar with the making and collection of assessments for municipal improvements must be aware that payments dependent thereon are uncertain and very apt to be unreasonably deferred. Chapman v. Gates, 54 N. Y., 132.

I do not think it necessary to consider the other questions raised by this appeal, but that, for the reasons already given, the order of the special term appealed from should be reversed, the motion for the appointment of commissioners denied, with ten dollars costs, and with ten dollars costs of this appeal and printing and other disbursements.

Let an order be entered accordingly.

Matham, P. J., and Putnam, J., concur.


author: Mayham, P. J.

text:
    Mary Carey et al., Adm’rs, Resp’ts, v. James J. Browne, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Default — Excuse foe failure to answer.
    On motion to open a default, it appeared that, shortly after service, defendant was taken ill and confined for five weeks in a dark room with disease of the eye. and that he lost the summons; that, on recovering, he wrote for a copy, but received no answer. Held, that the default was so far excused as to entitle him to be let in on terms.

      2. Same — Answer.
    It is not absolutely necessary to serve with motion papers to open a default the proposed answer, if sufficient appears in the affidavit to show the nature of the defense, and the court can see the good faith of the party in asking to defend.
    Appeal from order of special term denying defendant’s motion to open judgment entered against him upon his default.
    The action was to recover $500 as damages, being the value of an oil painting called the “ Birth of Venus,” alleged to belong to Frank Carey, plaintiffs’ intestate, at the time of his death, on April 2,1890, and wrongfully converted by defendant about January 20, 1892.
    In the moving affidavit, among things, it is stated that defendant purchased said picture of one Stephen W. Carey, who was a brother of deceased, and paid $350 therefor.

      Magner & Hughes (Foley & Wing, of counsel), for app’lt; H. Dunkel, for resp’ts.
   Mayham, P. J.

The affidavits on this motion disclose that the defendant was a summons a complaint, and that a short time after such service he was taken seriously ill, and remained in that condition for about five weeks, during most of the time compelled to remain in a dark room by reason of some disease of his eyes. That while in that condition he lost the summons and as soon as he was sufficiently recovered he wrote to plaintiffs’ attorney for a copy of the summons, but got no response until presented by the sheriff with an execution issued upon the judgment obtained by default in the action.

I think the defendant so far excused his default as to entitle him to be let in, to defend this action on terms. The defendant in his affidavit states facts in addition to the affidavit of merits which show that he purchased this picture and paid for it, of the person in whose possession it was, and while on a trial it may turn out that the person of whom he purchased it was not the true owner and had not the right to sell the same, yet, I think, he should if he desire have the opportunity of litigating that question, and that he has sufficiently excused his default to entitle him to relief under § 783 of the Code of Civil Procedure.

On the whole proof on this motion the title to the picture in controversy is by no means free from doubt, and while the granting or refusing a motion to set aside a judgment is to a great extent a judicial discretion, to be exercised by the special term, the exercise of that discretion in favor of the judgment creditor should not be without due regard to the protection of the rights of the party who had not had his day in court, and who excuses his default. Fassett v. Tallmadge, 15 Abb., 206; Bank v. Gifford, 40 Barb., 659; Ellsworth v. Campbell, 31 id., 134.

It is not absolutely necessary to serve with motion papers to open a default the proposed answer, if sufficient appears in the affidavit to show the nature of the defense, and the court can see the good faith of the party in asking to defend. Palmer v. Van Orden, 17 J. & S., 89.

No injustice can be done the plaintiff by allowing the judgment to stand and at the same time permitting the defendant to come in and defend on such terms as will indemnify the plaintiffs for all steps taken by them after the default.

The defendant may answer in this case upon payment of all costs and disbursements after defendant’s default, which are included in the judgment, and ten dollars cost of this motion and printing disbursements and serving an answer herein, within twenty days after the announcement of this decision, the judgment already entered to stand as security, and on compliance with above conditions, the order of special term appealed from is reversed.

Putnam and Herrick, JJ., concur. '


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    John Peter Eisenlord, App’lt, v. David H. Clum et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Trial — Direction of verdict.
    Where there is a substantial dispute on a question of fact, which affects the merits of the controversy, either arising out of conflict of testimony or a doubt as to the credibility of witnesses, it is error to take the case from the jury by directing a verdict.
    Appeal from a judgment entered upon the verdict of a jury in favor of the defendants, by the direction of the court.

      William J. Byam (A. J. Abbott, of counsel), for app’lt: Morrell & Spraker (George W. Smith, of counsel), for resp’ts.
   Mayham, P. J.

The plaintiff prosecutes this action to recover the possession of certain lands of which Peter 0. Bisenlord died seized and intestate, on the ground that he is the only son and heir-at-law of the intestate, the lands in dispute being in possession of the defendants, who claim title as heirs-at-law of the deceased.

The plaintiff claims as the legitimate son of the deceased; the defendants claim as brothers and sisters of the deceased, and the principal question involved in controversy is as to the legitimacy of the plaintiff.

The contention of the plaintiff is that Peter 0. Bisenlord was, in June, 1857, duly and lawfully married to Margaret Lipe, and that he is the legitimate issue of that marriage, and the sole surviving child of Peter 0. Bisenlord, and, as such, in law inherits his property.

On the other hand the contention of the defendants is that Peter O. Bisenlord was never married, and that he died intestate without lawful issue him surviving, and that they, as his next of kin and heirs-at law, inherit his property.

If the plaintiff’s contention was right, then he was entitled to a verdict and judgment for the possession of the land in dispute.

If the defendants’ contention was correct, then the plaintiff had no right to the land, and the defendants were entitled to a verdict and judgment in their favor.

The determination of this controverted question was a fact to be found by the jury; unless the evidence was so overwhelming in favor of one theory and against the other as to present only a question of law for the court

The theory of our jurisprudence is that disputed questions of fact, in actions at law, must be tried and determined by a jury, and that right is guaranteed to parties by the provisions of the fundamental law of the land by which courts, as well as legislators, are to be governed. It is true that courts may, when by the evidence there is no substantially disputed question of fact between the parties, direct a verdict; or when a verdict has been rendered and the court can see that the weight of evidence is so overwhelming against it as to evince prejudice or passion on the part of the jury, the court may set their verdict aside.

But this rule does not, I think, authorize the court to invade the province of the jury, and weigh the disputed facts and the evidence to support such dispute by its standard, and if in its opinion the jury reach a wrong conclusion, set aside a verdict for that reason.

Nor should the court interpose and take a case from the jury by directing a verdict, when there is a substantial dispute on a question of fact which affects the merits of the controversy, either arising out of conflict of testimony or a doubt as to the credibility of witnesses. Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609; Nicholson v. Conner, 8 Daly, 212; Elwood v. Tel. Co., 45 N. Y., 554; Wait v. Agricultural Ins. Co., 13 Hun, 371.

Tested by the elementary principle underlying our judicial system, and by the rule established by these cases, and many others that might be cited, we think that there were disputed questions of fact in this case which should have been submitted to the jury.

There was positive evidence of marriage by direct proof of the fact, and the admissions of the deceased; and while perhaps this evidence was open to criticism and doubt, that doubt we think should have been solved by the jury.

On the other hand, there were strong circumstances in evidence bearing upon the credibility of some of the plaintiff’s witnesses, and the truth of their testimony, as well as circumstances tending to prove the improbability of the marriage, which should, we think, have been submitted to and passed upon by the jury.

Upon these disputed and controverted questions in this case, we doubt whether the court would have felt authorized to have set aside the verdict under the rules we have stated, by which courts are governed in setting aside verdicts, if the same had been either for the plaintiff or defendants.

We think the court erred in directing a verdict, and in not submitting the question to the jury, and that for that reason the judgment should be reversed.

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

Putnam and Herrick, JJ., concur.


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    The People, Resp’ts, v. Dayton S. Kellogg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Highways — Dedication.
    The owner of certain land had the same laid out into lots with streets and caused a map thereof to be made, and thereafter sold some of the lots with reference to said map, subject to the right of the public in the street and reserving the right to make improvements in such street. . There was no acceptance on the part of the municipal authorities until ten years after making the map, and in the meantime the said owner had died. Held, that there was not such a dedication to the public as to vest the public with a right to the land as a highway; that if the acts of the owner can be construed as an evidence of willingness to dedicate these streets to the public, such proffered dedication was revoked by her death.

      Appeal from a conviction and judgment thereon, in the court of sessions of Montgomery county, for an alleged misdemeanor in obstructing an alleged public street or highway in the village of Fort Plain.

      George E. Phillips (A. M. Mills, of counsel), for app’lt; Charles S. Nisbet, for resp’ts.
   Mayham, P. J.

The principal question on this appeal is whether the locus in quo upon which the alleged obstruction was erected by the defendant, was by dedication by the owner of the land, and acceptance by the municipal authorities of the village of Fort Plain, a public highway.

There is no claim on the part of the respondent, that the land upon which this obstruction was placed by the defendant had ever been condemned and taken by the public authorities for a public street under the power of eminent domain.

But it is insisted that the facts proved on the trial established in law a dedication by the owner and an acceptance by the municipality of the land in dispute so as to constitute it a public street.

The case shows that Hannah Kellogg prior to, and during the year 1881, owned the land then and now known as Prospect Hill ; and that in November of that year, at the request of this defendant, an engineer laid out part of Prospect Hill into lots and staked out streets, drove stakes at the corners of each lot, and marked out to show where the streets were to be located, and after that was done, made a map of it

At the time of making this survey and map, the land known as Prospect Hill was all a part of the farm of Hannah Kellogg, and used as meadow and pasture lands by her until December, 1881, when she with her husband, this defendant, deeded to one Edwards lots designated in such conveyance as “ lots Nos. 1 and 2 in section 5 on map of village.lots made by E. H. Putnam, civil engineer, for Dayton’ S. Kellogg in the month of November, 1881.”

This conveyance bounded the lots on the east by Clinton avenue, and north by Henry street, conveyed the fee of Clinton avenue, subject to the right of the public to use said street, and reserved the right in the grantors to make such improvement on such street or avenue as they may deem advisable in the interest of lot owners.

In 1885 Dayton S. Kellogg and Hannah Kellogg conveyed lots Nos. three and four by deed with similar reference to the survey and map and with like reservations and in May, 1886, lot No. eight with like reference and reservations.

Several other deeds were executed in 1885 by the same parties, containing similar reference to the map and survey, and containing substantially the same reservations.

These deeds were all put in evidence by the People under the defendant’s objection.

There is no direct evidence in the case that the corporation at the time, or near the time of making this map and survey, did any act to adopt such survey, or the streets platted on it as streets of the village.

Hor is there any evidence to which attention has been directed, or that I can find in the record, that any highway or street labor has ever been applied on the streets designated on that survey, or map, before the passage of a resolution by the common council of the village of Fort Plain on the 27th of July, 1891. The resolution or ordinance is as follows: Whereas, Hannah Kellogg, deceased, owner, did in the year 1881 lay out certain streets in the village of Fort Plain commencing at or near the bridge at the red mills in said village, naming said streets as Kellogg avenue, Clark avenue, Gilbert avenue, Clinton avenue, Henry avenue and Edward avenue, as per map made and filed in Montgomery county clerk’s office.

Therefore, resolved, That said village accept of said streets above named as laid out and dedicated by said Hannah Kellogg, deceased, land owner; that said streets retain the same names and be known and named as originally named by said land owner.” This ordinance was received in evidence under the defendant’s objection.

The survey, map, conveyances and ordinance, above referred to, constitute all the evidence of a dedication and acceptance which I am able to find in the record.

Without stopping here to consider the admissibility of the evidence by which this dedication and acceptance is sought to be established, I do not think it proves such a dedication and acceptance as is required to divest the owner of the lands embraced in these streets, or to invest the corporation with the title for street purposes.

Ho act of the owner of this land has been proved, showing, or tending to show, an absolute surrender on her part to the village or public of her right, title and control of these lands. Assuming that the survey and maps were made by her direction and authority, which is not shown, still that act would not be inconsistent with a purpose on her part to retain title and control in herself of all these lands, subject only to the rights and privileges conferred by her grants on her grantees.

It was in no sense a dedication to the public or the village, but simply a method of sub-dividing her own property for her own convenience, in order to facilitate sales of the same in small parcels.

To constitute a dedication to the public which shall divest the owner of, and invest the public with, the right or title to land, something more is required than was done by her in this case.

In Niagara Falls Suspension Bridge Co. v. Henry Bachman, 66 N. Y., 261, it was held that: “When the owner of lands lays the same out in lots and streets, makes and files a map or plate thereof, and sells and conveys lots by the map, bounded upon the streets as delineated thereon, this does not necessarily, and without other facts, make the streets so laid out public highways.” It was also held that “ To constitute a public highway by dedication, there must not only be a setting apart, and a surrender to the public use of the land by the owner, but also an acceptance and formal opening by the proper authorities or a user.

The acts ana declarations of the owner must be unmistakable in their purpose and decisive in their character, showing the intent to dedicate the land absolutely and irrevocably to the public use.

In Holdane v. Trustees of the Village of Cold Spring, 21 N. Y., 478, Wright, J., in discussing this question, says: “ Throwing open lands in a village and fencing it on each side, and causing the way or avenue to be designated on a public map of the village, are acts tending strongly to show a design, presently, or at some future time, to dedicate and devote it to the public use.

“ But these acts are not conclusive to establish a present dedication, binding upon the owner of the land.

“ One may fence off a strip of his own for the purpose of a passage way, opening on a public street, or he may lay out a street through it, with a view of subdividing his land bounded upon it into village lots, intending, upon the sale of such lots, to dedicate the street to the use of the public, but in such case, though the public may have occasionally, or, indeed, at all times, used the open way in passing to and from the inclosure of an adjoining proprietor, it could scarcely be pretended that the land had thereby become burdened with an irrevocable public servitude.”

Tested by this rule, there was not such a dedication to the public by Mrs. Kellogg, in her lifetime, as to vest the right to these lands in the public as a highway.

But if the acts of Mrs. Kellogg could be construed into evidence of willingness on her part, at the time of this survey, to dedicate these streets to the public, still there was clearly, at that time, no adoption by the municipality of such' proffered dedication.

The adoption of the ordinance of July, 1891, was a declaration or acknowledgment on the part of the municipality that up to that time there had been no adoption by it, and hence no dedication, Cohoes v. D. & H. C. Co., 54 Hun, 558; 27 St. Rep., 613; reversed, 134 N. Y., 397; 47 St. Rep., 612; and the law is well settled that there can be no dedication without an acceptance by the public. Fonda v. Borst, 2 Keyes, 50; Niagara Falls v. Bachman, supra.

Before such acceptance the village owed no duty to the public in reference to these streets, and at the time of its adoption the proffered dedication by Mrs. Kellogg, if any was ever made, was, it would seem, revoked by her death. Bridges v. Wyckoff, 67 N. Y., 132; 43 Ohio St., 537.

If I am right in the above conclusions there was no public highway or street at the point where the alleged obstruction was placed bv the defendant, and his act was not a violation of § 385 of the Penal Code.

Upon this view of the case, it is unnecessary to examine the other exception taken by the defendant on the trial.

The judgment of conviction must be reversed, and a new trial ordered, under the provisions of § 543 of the Code of Criminal Procedure.

Putnam, J., concurs in result; Herrick, J., not voting.


author: Putnam, J.

text:
    Peter J. Flinn, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Railroad — Negligence—Apparatus.
    A railroad company is liable in damages for any injury resulting from its neglect to introduce any improvement in its apparatus which is known to have been tested and found materially to contribute to safety, the adoption of which is within its power so as to be reasonably practical, the company being allowed a reasonable time in which to adopt the apparatus.
    3. Same.
    Whether five years is a reasonable time to adopt such new appliance is a question of fact for the jury
    3. Same.
    Evidence showing that showers of sparks were frequently emitted from defendant railroad company’s engines prior to 1879 on plaintiff’s house, setting fire to it on several occasions, is evidence of negligence on the part of defendant sufficient to justify the court in refusing to charge “that there was no evidence in the case upon which the jury could find that the defendant was negligent in the use of the appliances it had prior to 1879,” when a better appliance came into existence.
    Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial.
    Action to recover damages for injuries alleged to have been caused by the negligence of defendant to a building owned by plaintiff.

      Hale & Bulkley (Matthew Hale, of counsel), for app’lt; Parker & Countryman (E. Countryman, of counsel), forresp’t.
   Putnam, J.

It is conceded that the former decision by the general term in this case determines that negligence cannot be imputed to defendant for laying its track on any part of the premises referred to in the complaint, however near plaintiff’s building, or in running long and heavy trains thereon. Hence, the only questions before us are : (1) Whether there was sufficient evidence in the case to submit to the jury, indicating that the fires which injured plaintiff’s building were caused by sparks from defendant’s engines, and if so, whether the emission of said sparks was due to any negligence on the part of defendant; and (2), whether any exceptions taken on the trial to the rulings of the trial judge, to his charge or his refusal to charge, should cause a reversal of the judgment.

I think there was sufficient evidence that the fires which injured and destroyed plaintiff’s building were caused by defendant’s engines. The plaintiff testified: The showers of sparks and smoke would be thrown into the windows, if they were open in warm weather, and set fire to the carpet; I am speaking what they did; the effect was still greater if they did not pass readily ; if they were lodged there, because it was upgrade, and the trains would sometimes become stalled ; impossible for the engines to do their work, and then, if the locomotives were lodged in front of the building, showers of sparks would be thrown all about, and if it were dry weather the building would take fire, and sometimes when it was not dry it would take fire; the entire roof and alley and all about there would be flooded with these live coals ; this state of things continued about ten years. The final result ivas that the house was destroyed; these fires continued from 187'4, the time the additional trade was laid, until the destruction of the building by one of those fires in August, 1884-”

“ I visited this house immediately after it had been set fire; I went there to see how much damage had been done, and to see about getting it repaired. I have gone there perhaps five or six times after these fires, when I would be at home ; I can’t give the dates ; perhaps in 1876, 1877, and 1878, along that way; in 1879; I would notice the floor of the building, the cinders, if there had been a hole burned in the roof in a day or so, without being repaired, the hole remained there then the cinders would come in and around about there; it would be two or three or four inches deep of those large cinders.”

Michael Cantwell also testified as follows : “ Remember the fires to the premises described; those fires seemed to be on the roof when I got there ; saw sparks from the engine on the roof; I never measured them ; the tenants moved out; I know about the tenants ; I talked with the tenants ; I think they were an inch and a half and larger; a chunk of coal probably an inch and a half; have seen fires catch from these sparks; have been in the yard and seen the engines work outside, and the sparks settle on the building and set it on fire, and I extinguished it.”

There was other testimony given on the trial indicating that the fires which injured plaintiff’s premises were caused by defendant’s engines, evidence sufficient to sustain a verdict in favor of the plaintiff. Sheldon v. Hudson River R. R. Co., 14 N. Y., 218; Crist v. Erie Railway Co., 58 id., 638; O'Neill v. N. Y., O. & W. R. R. Co., 115 id., 579; 26 St. Rep., 268.

It is suggested, however, that the engines of. the Boston & Albany Railway Company also, at the time in question, run over the same track, and that it is impossible to tell whether the fires in question were caused by the engines of the latter company or defendant’s. It must be admitted that the testimony in the case as to the origin of the fire is not very clear or decisive, but the evidence given by all the witnesses showing the emission of sparks and cinders from engines seems to point to those of defendant Thus the witness Judge swore that the engines he referred to were those of the New York Central Railroad Company.

Hughes swore he never saw a Boston & Albany engine stalled. Almost all the evidence in the case indicating that plaintiff’s house was injured by sparks point to the defendant’s engines' as emitting them. It was, therefore, a question of fact to be submitted to the jury whether or not the defendant's freight engines caused the injury to plaintiff’s building. Collins v. N.Y. C. & H. R. R. R. Co., 33 St. Rep., 570-1.

It will be seen that this case differs from Searles v. Manhattan Railway Co., 101 N. Y., 661, and McDermott v. N. Y. C. & H. R. R. R. Co., 8 W. Dig., 531, to which defendant refers. In this case there was evidence sufficient to submit to the jury tending to show, and which made it probable that the fires in question were caused by defendant’s engines.

It is claimed by defendant that assuming the injury to plaintiff’s premises was caused by sparks from its freight engines, yet there is no evidence to show negligence on the part of defendant in causing the emission of said sparks by the use of improper spark arresters. That railroad companies are not bound to use appliances that have not been tested, although approved by the highest scientific authority. They are required to use only those that have been not only tested, but put in general use. Steinweg v. Erie Railway, 43 N. Y., 123.

That where an appliance not obviously dangerous has been in daily use for years, they may continue to use the same without the imputation of negligence. Lafflin v. B. &. S. R. R. Co., 106 R. Y., 136; 8 St. Rep., 596; Burke v. Wilherbee, 98 N. Y., 562.

But in fact there was evidence in the case from which the jury could properly find that the engines used by the defendant were obviously dangerous, evidence indicating that plaintiff’s house for a number of years prior to 1884 had been repeatedly fired by those engines, they throwing out for a considerable distance from its track showers of large sparks that were liable to fire the building of plaintiff and others Therefore, the above cases cited by appellant are not decisive of the question before us.

In 1879 or 1880 a new kind of smoke stack and spark arrester came into use, and was placed by defendant on its passenger engines, but not on those drawing freight trains. On freight engines the defendant continued to use the old diamond smoke stack. The evidence in the case shows that the new smoke stack greatly diminished the amount of sparks emitted. One witness testified that only one-third as many sparks would issue from the new arrester as from the old diamond smoke stack.

The doctrine is now established that, while railroad companies-are not bound to adopt an untried machine or to use every possible prevention which the highest scientific skill might suggest, yet, they are guilty of negligence if they fail to adopt the most approved mode of construction and machinery in known practical use. Steinweg v. Erie Railway Co., 43 N. Y., 127; Burke v. Manhattan R. R. Co., 13 Daly, 81; Beier v. Delaware & Hudson C. Co., 13 Hun, 258; Crist v. The Erie Railway Co., 58 N. Y., 638.

Although the facts of the cases are not alike, I think the correct doctrine, as applicable to this case, is laid down in Smith v. The New York & Harlem R. R. Co., 19 N. Y., 127, viz.: “A railroad company is liable to damages for any injury resulting * * * from its neglect to introduce any improvement in its apparatus which is known to have been tested and found materially to contribute to safety, the adoption of which is within its power so as to be reasonably practical.”

It was shown that the new smoke stack and arrester was much better than the old diamond stack, it only emitting one-third as many sparks. The defendant could, without the imputation of negligence, take a reasonable time to place the new appliance on its freight engines. Whether from 1879 to 1884 was a reasonable period was a question of fact which the judge properly submitted to the jury. If the old engines with the diamond stacks constantly set fire to wooden buildings near its tracks, and the new smoke stack would decrease the sparks emitted two-thirds, and thus greatly diminish the probabilities of fires, the jury might properly have found that the defendant was negligent in not adopting the new arrester within four or five years. I think, therefore, that the trial judge properly submitted to the jury the question whether the damage to plaintiff’s house was caused by defendant’s negligent omission to place on its freight engines the new smoke stack and spark arrester.

The appellant put the new smoke stack on its passenger engines in 1880. The appliance, therefore, was then in practical use to the knowledge of the company, and its officers and servants must have known that this new smoke stack materially diminished the risk of fire from sparks from the engines. It was a serious ques ■ tion whether, under the circumstances, the defendant should not in 1880 or 1881, or prior to 1884, have placed this new spark arrester on its freight engines. This question was properly submitted to the jury by the trial judge in a fair and impartial charge.

For the reasons above stated the court did not err in declining to charge as requested, that the jury could not find that the defendant was guilty of negligence in using the old smoke stack and spark arrester it did prior to 1884; and also that there was no evidence in the case from which the jury could say that defendant was negligent in not using some other kind of smoke stack than it did. As we have seen, these were questions of fact for the jury, not questions of law for the court. The defendant might properly have asked the court to charge that the defendant was not guilty of negligence in not adopting the new arrester immediately after its discovery; that it had a reasonable time after such appliance came into practical use within which to adopt it. What was a reasonable time was a question of fact for the jury to determine.

I think that defendant was entitled to the instruction, that no recovery can be had for damage prior to 1879 by reason of defendants not having adopted the new spark arrester. The trial judge seems not to have understood the request, and his answer was practically a refusal to instruct the jury as requested. But on examination of his charge it will be seen that he had already, in effect, thus charged. There was no dispute whatever in the evidence that the new arrester was first used in 1879 or 1880. The judge instructed the jury as follows: “It is for you to determine whether the evidence in the case justifies you in saying that they were negligent in refusing to adopt the new appliance that has been spoken of. "* * *

Whether, in other words, if they had adopted in 1879, 1880, 1881, 1882 and 1883, before this fire occurred * * * the new appliance that has been referred to, that then this building would have been destroyed or its rental value depreciated. You will have to find all these things. You will have to find that they * * * negligently refused to adopt the modern appliances which were in practical operation and had received the test of experience.”

It will thus be seen that the court below, in effect, instructed the jury that the negligence, if any, of defendant in failing to use the new appliance, was in the years 1879, 1880, 1881, 1882 and 1883. Having so charged the jury, he was not called upon to repeat the instruction.

I also think that the court correctly declined to charge that there was no evidence in the case upon which the jury could find that the defendant was negligent in the use of the appliances it had prior to 1879. Without considering the evidence of Kirk, there was some evidence of negligence on the part of defendant prior to 1879. It is decided in Field v. N. Y. C. R. R., 32 N. Y., 346, that the fact that the sparks or coals were scattered at all upon their roadway in such quantities as to endanger property on abutting premises, raised an inference of some weight that the engines wei£ ¿mproperly constructed or managed.” See also, Bedell v. Long Island R. R. Co., 44 N. Y., 369 ; O'Neill v. N. Y., O. & W. R. R., 115 id., 583-584; 26 St. Rep., 268; Shearman & Redfield on Negligence, 2d ed., § 33; Sugarman v. The Man. El. R. Co., 42 St. Rep., 30; Ruppel v. Man. R. Co., 13 Daly, 11.

In this case there was abundant evidence showing that showers of sparks were frequently emitted from defendant’s freight engines on plaintiff’s house, setting fire to it on several occasions. This, within the cases above cited, was evidence of negligence on the part of the defendant justifying the refusal of the court to charge as requested.

I do not think the judge erred in declining to instruct the jury to disregard the evidence of plaintiff that the market value of his house was $700 or $800, on the ground that the witness on cross-examination stated that he understood by the market value of the house what it would cost to replace it. The witness had contradicted himself. He first swore that he meant by the market value what it would cost to replace it. He was afterwards asked and answered as follows :

Q. Do you understand that the cost of rebuilding or replacing a building is the proper test of market value? Ho, sir, I don’t.

Q. Do you understand that the market value of a building means what it will bring in the market ? A. Yes, sir.

Q. But in making your answer of $1,200 as the market value of your building, do you say you meant what it would cost to replace it? A. Yes, sir.

The witness was not asked whether, in placing the market value at $700 or $800, he meant what it would cost to replace the house. The meaning of the witness is somewhat doubtful. Under the circumstances, I think the testimony was properly submitted to the jury by,the trial judge as weak and inconclusive evidence.

Other-exceptions were taken on the part of the defendant which I do not deem it to discuss.

I conclude that the judgment should be affirmed, with costs.

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


text:
    Alexander Chace, Resp’t, v. James M. Lamphere, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Will — Construction.
    Testator, by his will, devised to plaintiff the farm now occupied by him, containing 174 acres, and to defendant the farm now occupied by him, containing 140 acres. The acres devised to each did not correspond with the number occupied by each. Defendant had occupied the 143 acre farm for a number of years, and also the twenty-seven acres in dispute, but upon the understanding and agreement that the same should continue to-be regarded as part of the farm occupied by plaintiff. Held, that testator’s intention was to give the portion in dispute to plaintiff.
    2. Same — Ejectment—Damages.
    In an action to recover possession of said twenty-seven acres, plaintiff is only entitled to recover damages for withholding the premises for the time prior to the commencement of the action.
    Appeal from a judgment entered upón the decision of a justice, made on trial of the cause at circuit
    Action brought to recover possession of twenty-seven acres of land, and damages for unlawfully withholding the same.

      H. W. McClellan (Orin Gamhell and James K. Averill, of counsel), for app’lt; A. Frank B. Chace, for resp’t.
   Herrick, J.

This case has been before this court once before upon appeal, 51 Hun, 524; 21 St. Rep., 676, and the legal questions in the case disposed of, so that there is no need of reviewing them at this time. The testator possessed about 314 acres of land, consisting of two farms, one known as the Homestead farm, consisting of about 143 acres, and another that he had purchased of one Sherman Griswold, and consisting of about 170 acres of land, Gris-wold had purchased some 153 acres of such farm from a man named Wooley, and the whole tract of 170 acres conveyed by Griswold to the testator was generally known and spoken of in the neighborhood as “ The Wooley Farm.”

The 170 acre tract embraces the land in dispute.

The tract of land in question adjoins the Homestead farm and consists of a little over twenty-seven acres, and had been occupied by the defendant in connection with the Homestead farm upon which he resided from some time in the year 1871, down to and at the time of the death of the testator ; the remainder of the farm purchased of Griswold by the testator had been occupied and resided upon during the same time by the plaintiff.

The testator disposed of these farms by his will in the following language:

- Second : I give, devise and bequeath a life estate in the farm of land now occupied by Jarnos M. Lamphere to my said sister Happy Shaw, during the life of my said sister; and I further give to my said sister fifty dollars each year during her natural life, and said fifty dollars, each year as aforesaid to be, and is hereby made a charge against and to be paid from the farm occupied by said Chace, as an annuity therefrom, to which said farm is hereby made subject to the payment of, as aforesaid, to my said sister.

Third. I give and bequeath four hundred dollars to Abby Hold-ridge of Spencertown, to be paid her one year after my death, from the farm occupied by said Lamphere, which farm I charge with the payment of said sum to said Abby Holdridge.

Fourth. Í give and bequeath four hundred dollars to Helen Holdridge, to be paid her one year after my death, from the farm occupied by said Chace, which farm I charge with payment of said sum to said Helen Holdridge.

Fifth. I direct my executors, hereinafter named, to erect a suitable monument of the value of four hundred dollars over my remains, for myself and my said sister Happy, the expense of which is made a charge equally against my said two farms, occupied by said Lamphere and Chace, and to be paid, from each said farm, two hundred dollars, from each.

Sixth. I give, devise and bequeath to James M. Lamphere, his heirs and assigns forever, all my said farm situated in the town of Austerlitz, Columbia county, N. Y., and containing about one hundred and forty acres of land, with the appurtenances thereunto belonging, being the farm on which said Lamphere now resides, to have and to hold the same to said Lamphere, his heirs and assigns forever, subject, however, to the life estate of my said sister, Happy Shaw, therein and to the payment of the several sums and legacies hereinbefore charged against the same.

Seve?iih. I give, devise and bequeath to Alexander Chace, his heirs and assigns forever, all my said farm, situated in the town of Austerlitz, Columbia county, N". Y., and containing about one hundred and seventy-four and three-quarters acres of land called the “Wooley Farm,” which I purchased of Sherman Griswold, and on which farm said Chace now resides, together with the personal property_ now on said farm, to have and to hold the same to said Chace,'his heirs and assigns forever, subject, however, to the payment of the annuity of fifty dollars each year to my said sister, Happy Shaw, with which said farm is hereinbefore charged, and is hereby charged, and also subject to the payment of the several sums and legacies hereinbefore charged against said farm.

It will be observed that the farms are spoken of as “ occupied” or “resided” upon by the plaintiff and defendant respectively.

The acres devised to each do not correspond with the number occupied by each; if the land in dispute, and which was occupied by the defendant, is held to have been devised by him by the terms of the will, then instead of taking about 140 acres of land under the will he will take about 170 acres, and the plaintiff instead of taking about 174 acres under the will, will take about 143 acres.

When the case was here before the court said: “We are persuaded that the case can be decided upon the ascertained intention of the testator as deduced from the provisions of the entire will, construed in the light- of the facts and circumstances proper to be considered in connection with such instrument"

The intention of the testator was a matter of fact to be found by the trial court. The character of the occupancy by the defendant of the piece of land in dispute; whether the testator intended to make it a part of the so-called Homestead Farm, or whether he intended it to be and remain a part of the so-called Wooley Farm; were, of course, important questions in determining the intention of the testator.

Upon the trial the courtfoundthe following as matter of fact in relation to the strip of land in question: “ These lands at the time of the death of Shaw, and prior thereto during the residence of the defendant upon the one hundred and forty-three acre farm, a period of about eight years, had been occupied and used by the defendant in connection with said one hundred and forty-three acre farm, but such use and occupation was upon the understanding and agreement between Shaw and the plaintiff that the same should continue to be regarded as a part of the farm of one hundred and seventy acres above mentioned, upon which plaintiff resided, and of the whole of which he had been in the actual use and occupation up to that time."

While from the evidence, as it appears in the printed case, my impression would lead me to a contrary conclusion, yet the learned trial justice heard the living witnesses, witnessed their demeanor, and could better determine what credence should be given to their testimony; and there being testimony to sustain his finding I do not feel at liberty to reverse it

As the case presents itself to me, the character of the occupancy of the land in question by the defendant, whether as a part of the Homestead farm, or with the understanding that it should still remain and be considered a part of the Wooley farm, is a controlling factor in the case, and so believing, I am forced to' agree with the finding of the trial j'ustice that, “ By the sixth clause of this will the testator intended to, and did, devise to the defendant the farm of about one hundred and'forty-three acres above mentioned, and did not include in said devise the land and premises in dispute in this action. By the seventh clause of the will the testator intended to, and did, devise to the plaintiff the farm purchased by him of Sherman Griswold, including the land in dispute in this action.”

And it follows from such findings that the plaintiff is entitled to recover.

I think, however, the court erred in permitting the plaintiff to recover damages for withholding the premises for a period of six years prior to the commencement of the action, and also from the time of the commencement of the action down to the rendition of the judgment, making about twelve years. The damages were estimated and allowed at the rate of forty-five dollars per annum, and the plaintiff was allowed $580.62.

I think he is only entitled to recover for the period of six years. Code Civ. Pro., § 1531; Gaslight Co. v. Rome, W. &. O. R. R. Co., 51 Hun, 119; 24 St. Rep., 154.

He would, I think, however, be entitled to interest upon such damages from the time of the commencement of the action, which in all would amount to $362.66, and to that amount the recovery-should be reduced.

If plaintiff consents to reduce his recovery for damages to the sum of $362.66, and to pay the appellant the costs of this appeal, then let the judgment as so modified be affirmed; otherwise let the judgment be reversed, and a new trial granted, costs to abide the event

Mayhah, P. J., and Putnam, J., concur.


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    John Barth, Assignee, et al., Resp’ts, v. Erastus P. Backus, Sheriff, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Assignment fob creditors — Foreign assignment.
    A voluntary assignment for the benefit of creditors by a debtor residing in another state, valid by and under the laws of that state, and not in contravention with the law or policy of this state, operates as an assignment of the debtor’s property in this state, and the assignee can hold the same against subsequent attaching creditors in this state.
    Appeal from judgment for plaintiff, after trial at special term without a jury.
    August 19, 1891, the Wilkin Manufacturing Company, a Wisconsin corporation engaged in business at Milwaukee, made to the plaintiff, John Barth, a general assignment of all its property for the benefit of creditors, without preferences, under chapter 80 of the Revised ' Statutes of Wisconsin and the acts amendatory thereof. The Canton Lumber Company, of this state, was then indebted to the Wilkin Manufacturing Company in the sum of $6,170.24. After the assignment, but before the beginning of this action, the defendant, Erastus P. Backus, as sheriff, attached the said debt under warrants of attachment in four several actions in this court against the Wilkin Manufacturing Company, in one of which the Bank of America was plaintiff, while the St. Lawrence County Bank was plaintiff in the others. Both banks are New York corporations. This action was brought by the plaintiff, as assignee, against the Canton Lumber Company, to recover said debt; the amount of the debt was paid into court by the Canton Lumber Company; and Sheriff Backus, claiming it by virtue of the attachments, was substituted as a defendant in place of the Canton Lumber Company. After the beginning of this suit the money in court was attached, under a warrant of attachment in a fourth action brought by the St. Lawrence County Bank a en ins t the Wilkin Manufacturing Company, by L. Howard Wilson, the present sheriff of St. Lawrence county, who was also made a party defendant to this action. After a trial at special term, before Justice Russell without a jury, the court rendered a decision in favor of the plaintiff, on which the judgment appealed from was entered.

      Nelson L. Robinson, for app’lts; Ledyard P. Hale (Thomas Spratt, of counsel), for resp’t
   Herrick, J.

It has been held that a voluntary assignment by a residing in another state, valid by and under the laws of that state, and not in contravention with the law or policy of this state, operates as an assignment of the debtor’s property in this state, and that the assignee can hold the same against subsequent attaching creditors in this state. Ockerman v. Cross, 54 N. Y., 29; approved in Warner v. Jaffray, 96 id., 248.

There seems to be nothing in the law of Wisconsin under which the assignment is made or in the assignment itself that is hostile to the statutes or policy of this state. Mr. Justice Russell, before whom this case was' tried, has written so fully upon the question, that it seems to me unnecessary to enlarge upon it here, inasmuch as I agree with the conclusion arrived at by him.

The judgment should be affirmed, with costs and disbursements.

Mayham, P. J., and Herrick, J., concur.


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    Marvin Lane, Adm’r, Resp’t, v. The Town of Hancock, App’lt.

      Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Highways — Negligence.
    In an action to recover damages for the death of plaintiffs intestate 7, Z caused by the negligence of the commissioners of highways of defendant ( j town, it appeared that at the point on the highway where the accident ’/' happened the road was about eleven feet wide and sloping considerably from the upper to the lower side, where there was a perpendicular descent, over which the sleigh in which the deceased was riding fell. There was a water-bar running diagonally across the road, and the water flowed over this place and was frozen and the road slippery; the sleigh slipped without any negligence on the driver’s part. The highway had been in this condition for several years and there was no barrier on the sides. Held, that the evidence rendered necessary the submission to the jury of the question of the commissioners’ negligence.
    2. Same.
    The fact that no accident had ever occurred at the place -in question before is not conclusive as showing that the place was not dangerous.
    3. Same — Want of funds.
    In such case want of funds to repair the road is a defense to be asserted and proved by defendant.
    Appeal from a judgment in favor of plaintiff, entered on a verdict at circuit.
    Action brought under chapter 700, Laws of 1881, to recover damages resulting from the death of plaintiff’s intestate.

      Wesley Gould, for app’lt; John F. Anderson (T. F. Bush, of counsel), for resp’t.
   Putnam, J.

The questions whether the death of plaintiff’s intestate was, or was not, caused by the negligence of the commissioners of highways of the town of Hancock, and whether there was any contributory negligence on the part of said deceased, I think, were properly and fairly submitted to the jury by the trial court.

The matters litigated in the action have been passed upon in so many reported cases, and the principles involved are so well settled, that a brief discussion of the case will be sufficient.

There was evidence on the trial showing, or tending to show, that at the point on the highway where the accident happened the road was about eleven feet wide and sloping considerably from the upper to the lower side', where there was a perpendicular descent of several feet, over which the sleigh, in which deceased was riding, fell.

There was a water-bar running diagonally across the road, and the water flowed over this place and was frozen so as to make the road slippery. The sleigh, when it came to the point in question, without any negligence on the part of the driver, slipped off the road, was overturned and deceased was killed. The highway had been in this condition for several years and had no barrier on the sides. The testimony given on the trial as to the condition of this road at the place where the accident occurred rendered the submission of the question as to the negligence of defendant’s highway-commissioners to the jury necessary, within the cases of Ivory v. The Town of Deerpark, 116 N. Y., 476; 27 St. Rep., 643; Maxim v. The Town of Champion, 50 Hun, 88; Bryant v. The Town of Randolph, 133 N. Y., 70; 44 St. Rep., 85, and many other cases which it is unnecessary to mention. In fact the evidence of negligence in this, case on the part of the officers of defendant was stronger and more conclusive than was shown on the part of the defendant’s commissioners in either of the three cases above cited. In this case there was a road sloping rapidly to a steep embankment with a water-bar running diagonally across it, over which road water was suffered to flow and freeze, and on which a loaded sleigh would be likely to slip and be thrown over the embankment, however properly driven, as was the sleigh on which deceased was riding.

The fact that no accident had ever occurred at the place in question before, if such fact was shown on the trial, although some evidence tending to show that this point in the road where the accident occurred was not dangerous, is not conclusive in that regard, especially in a case like this, where the testimony given by plaintiff • so strongly indicates an unsafe condition of the highway. Maxim v. The Town of Champion, 50 Hun, 93.

Counsel for defendant compares this case to Hubbell v. The City of Yonkers, 104 N. Y., 434; 5 St. Rep., 730, and Glasier v. The Town of Hebron, 131 N. Y., 447; 43 St. Rep., 319. A careful examination of the testimony, and consideration of the facts, has led me to the conclusion that this case is not similar to those authorities.

In the Hubbell case the road was thirty feet wide, macadamized and in good condition. The accident was caused by the plaintiff’s horse being frightened and not by the condition of the highway. Here the road was only eleven feet wide, sloping, without barriers, covered with ice, and in such a dangerous condition that a sleigh passing along the highway would naturally and almost necessarily slip and go over the embankment. And the accident by which deceased lost her life was in fact caused by the sleigh slipping over the embankment on account of the defective condition of the highway.

In Glasier v. The Town of Hebron, supra, the road was seventeen feet wide and in good condition. Here, as we have seen, there was evidence to justify the jury in finding that the highway where the accident occurred was in bad condition, and in such a state that said accident might naturally have been anticipated.

The highway having been in the same state for seven years prior to the death of Mrs. Lane, the officers of defendant must be deemed to have had notice of its condition.

It is suggested by counsel for appellant that, the highway being in the same condition as when accepted by the commissioners, and having been made in accordance with the plan adopted by them, the defect, if any, was incident to the plan adopted, and was an error of judgment of the commissioners, on which no judgment can be obtained. Urquhart v. City of Ogdensburgh, 91 N. Y., 67.

. The testimony in the case, however, does not sustain defendant’s position. It appears that when the road was built there were “ fenders ” put at the place where the accident happened. That the road had since become filled in with earth higher than the fenders. Also there was no water-bar when the road was made. Had there been a fender at the place where the accident occurred, the sleigh on which deceased was riding would not have gone over the embankment. Hence, there was evidence in the case justifying the jury in finding that deceased, lost her life, not on account of any defect in the plan of the road as adopted by the officers of the town, but on account of its.being allowed to become out of repair.

The defendant insists that it was for the plaintiff to allege and show, as a part of his cause of action, that the commissioners had sufficient funds, or the power to procure sufficient funds, to repair the highway in question and neglected to take the proper and necessary steps to obtain such funds.

I think the want of funds was a defense to be asserted and proved by defendant Bullock v. Town of Durham, 46 St. Rep., 459; Hover v. Barkhoof 44 N. Y., 118; Adsit v. Brady, 4 Hill, 634; Clapper v. The Town of Waterford, 131 N. Y., 388-9; 43 St. Rep., 316.

Also, the evidence in the case was such that the jury could properly find that defendant’s officers either had the funds, or could easily have procured the small amount (twenty dollars), necessary to properly repair the defective part of the highway in question. Without attempting to discuss the question, I will refer to the remarks of Bradley, J., in Ivory v. The Town of Deerpark, 116 N. Y., 484; 27 St. Rep., 643, as entirely applicable to this case. Also, the opinion in Warren v. Clement, 24 Hun, 474. The highway had been in the same bad condition for several years. It required only twenty dollars to repair it. The highway commissioners, who must be deemed to have had notice of the condition of the road, had a right to, under the statute, raise the sum of $1,000 for highway purposes each year. The j ary could properly have determined that they negligently failed to take proper' steps to provide funds, if they did not in fact have means on hand, to make the repair, that would only cost twenty dollars, at a. place on the highway that had needed such repair for seven years. The trial judge submitted the question to the jury as to the possession of funds by the defendant’s officers in a fair charge, to which no exception was taken, and I am unable to see that any error was committed by him in his instructions to the jury or rulings in the matter.

Several exceptions were taken by appellant to decisions of the trial judge in receiving or excluding evidence offered, which are urged as grounds for granting a new trial. I have examined and considered each of said decisions carefully, but do not think they require discussion, or that the trial judge in either of the rulings so excepted to made any error that should cause a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


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    Eliza Babcock, Adm’rx, Resp’t, v. The Fitchburgh Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Railroad — Precautions against pibe.
    A railroad company is bound to exercise as great a degree of care in furnishing safeguards against the escape of fire to the injury of the public, as they are required to exercise towards their patrons.
    Appeal by defendant from a judgment rendered on a verdict after trial at Bensselaer county circuit
    Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of defendant, a railroad company, in failing to adopt, after adequate opportunity, essential improvements in their engines, in consequence whereof sparks escaped from their engine and caused an explosion in a powder mill, by which intestate was killed.

      Townsend, Roche & Nason (M. I. Townsend, of counsel), for resp’t; T. F. Hamilton, for app’lt.
   Mayham, P. J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff.

The action was for the alleged negligence of the defendant in the use of a locomqtive engine, upon its railroad, from which sparks were emitted, which it is alleged ignited powder in a powder mill in which plaintiff’s intestate was employed,thereby causing his death. This case was before this court at a former term on. an appeal from a judgment entered upon an order of the trial judge, dismissing the plaintiff’s complaint. 46 St. Rep., 796.

The evidence on that appeal is, so far as we can discover, in all respects like that contained in the record on this appeal, and this court then reversed the judgment and ordered a new trial on the ground that there were two questions of fact which should have been submitted to the jury; one, whether the spark arrester on the smoke stack of the defendant’s locomotive, employed in drawing the train of cars up the grade past the powder mill, where plainiff’s intestate was employed, was reasonably safe and suitable for the use to which it was applied, and whether there was not another and more safe smoke stack, and spark arrester, disclosed by the evidence to be in use by railroad companies, and which the defendant, in the exercise of reasonable care, could and should have used, and thus minimize the danger to combustible- material along its railroad.

The other question for the jury was whether the spark from defendant’s locomotive ignited the powder, and thus produced the explosion which caused the death of plaintiff’s intestate. This court then adopted, and applied to this case, the rule laid down by the court of appeals in the case of Steinweg v. The Erie Railway, 43 N. Y., 123.

It is now urged by the appellant that this court misconceived the effect of that decision ; and that as in that case contractual relations existed between the plaintiff and defendant, the defendant owed a higher duty to the plaintiff to adopt the best and safest machinery and appliances reasonably attainable, than was required of the defendant in this case towards the plaintiff’s intestate.

No authority is cited by the learned counsel for the appellant to sustain that proposition.

While it is true that the case of Steinweg v. Erie Railway was one between consignor and carrier, yet the cases referred to by Folger, J., in delivering the opinion were those arising between railroad companies and strangers whose property, was damaged by fire dropped from a locomotive. Field v. N. Y. C. R. R. Co., 32 N. Y., 346.

Nor do we see how the contractual relation between a bailor and carrier increases the obligation of the carriers beyond that which.they owe to the general public to guard against damage by fire. -A carrier is liable for loss by negligence; not by virtue of any contract against negligence. Atlantic Ins. Co. v. McLoon, 48 Barb., 27.

In the absence of authority to the contrary, we see no reason for holding a railroad company to a greater degree of care in furnishing safeguards against the escape of fire to the injury of its patrons than they should exercise towards the public, whose lives and property are equally exposed to injury from its negligent escape. *

On the question as to the origin of the fire which produced the explosion, the jury found with the plaintiff, and we think their finding cannot be disturbed as unsupported by evidence. The question of negligence of the defendant in the case under consideration was one clearly raised by the evidence, and fairly submitted by the learned trial judge to the jury, and we see no error committed by him either in the reception or rejection of evidence, or in his charge or refusals to charge. Norwas his refusal to set aside the verdict on the motion of the defendant error.

The judgment and order must, therefore, be affirmed, with costs.

Putnam and Herrick, JJ., concur.