text:
    Fannie G. Parsons, App’lt, v. Charles W. Parker, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Taxes—Assessment—Occupied lands.
    An assessment of occupied lands to one, who is neither owner nor occupant, is void.
    2. Same-Sale—Presumption—Rebuttal.
    The presumption of regularity, arising from a tax lease, is rebutted by proof that the taxes, for which the lands were sold, had been previously paid,
    3. Same—Estoppel.
    When the owner of land is not estopped from denying the validity of an assessment in the name of her husband
    Appeal from a judgment dismissing the complaint.

      William P. Fiero, for app’lt; Wilson Brown, Jr., for resp’t.
   Brown, P. J.

—This action is to recover possession o£ two lots of land in the town of Mamaroneck, Westchester county, described as Nos. 117 and 118 on a map of lands of Thomas R Hawley. Hawley and his wife conveyed the lots to Henry Parsons, the plaintiff’s husband, in 1871, and in 1874 they were conveyed to the plaintiff. The defendant is in possession, and claims title under two tax' leases made by the supervisor of the town pursuant to a sale of the lots for unpaid taxes under an assessment for the years 1889 and 1890; and the principal question presented is as to the validity of such assessments and the ¡subsequent proceedings resulting in the lease.

The lots were, prior to 1871, a part of the McIntyre farm, but subsequent to that year were assessed separate from said farm, as residence land, in the name of Henry Parsons ; and the only dif-. ference in the assessment for the two years in question is that in 1889 they were assessed as one and in 1890 as two parcels. Parsons and wile were, subsequent to 1882, residents of the town of Bye, in Westchester county, and plaintiff never resided in Mamaroneck. The defendant claimed and the court found that at the time of the assessment the lots were occupied by one S. W. Parker, defendant’s father; and, although the appellant contents that such finding is without support in the evidence, it. is not material to the question presented. The assessment made did not conform with any provision of the statute regulating the manner in which property is assessed. Rev. St. (8th ed.) p. 1094, §§ 1-3. Occu-. pied lands, owned by a person who is a nonresident of the town in which they are situated, but a resident of the county, may be assessed to the occupant, as lands of nonresidents, or to the owner. § 2. The lots in question were not assessed in either manner specified, but as residence lands, to Henry Parsons, who was neither owner nor occupant. The assessment was therefore void. Hilton v. Fonda, 86 N. Y. 339 ; Stewart v. Crysler, 100 N. Y. 378; Sanders v. Downs, 141 N. Y. 422; 57 St. Rep. 580.

The defendant does not seriously contend that the. assessment was valid, but he claims that the plaintiff assented to the mode of assessment, and is now estopped from claiming it to be void. This claim is based upon the fact that up to 1889 the plaintiff’s husband, acting as her agent, annually sent for and paid the tax bills, and never informed the assessors that he had conveyed the lots to his wife, but permitted them to believe that he was the owner, and to ‘assess in his name. Hilton v. Fonda, supra, is relied on to sustain this contention, but that case has no application to the facts of this action. The plaintiff there sought to recover damages from the assessors personally for an illegal assessment; and because his agent informed defendants that plaintiff owned the lands, and appeared -before them when they met officially, and claimed and gave evidence to the effect that the valuation was too high, but made no claim that the lands were assessed as lands of a resident, the court held that the plaintiff waived the observance of the statute, and assented to the mode of assessment, and could not thereafter maintain an action for personal damages against the assessors; but it was also held that the assessment made was, illegal. In this case there is no question presented as to the right of the owner of the land to enforce a personal liability against the assessors. We are concerned only with the question whether the assessment was so made to create a charge upon the land, and it would seem to be too clear to require argument that there can be no lien upon land as the result of a void assessment. But the evidence does not support the finding that the plaintiff consented to the mode of assessment. Nothing was ever done or said by her or her husband with reference to the assessment in question. The plaintiff was under no obligation to inform the assessors of her ownership. The duty to inquire as to the names of taxable inhabitants is enjoined upon the assessors by statute, and, as each assessment is independent of every other assessment, nothing that occurred in prior years could have application to the assessments for 1889 and 1890. Indeed, there can be no presumption that the assessors of those years were the same persons who held the office in prior years. The evidence upon which the waiver is based is that plaintiff’s husband sent for and paid the tax bills which were made out in his name; but there is no evidence that either he or plaintiff ever saw or examined the assessment roll, or appeared before the assessors in their official capacity, or had any conversation with any of them in reference to the lots. The payment of the taxes of one year cannot be deemed to give assent to an illegal mode of assessment in subsequent years, and the evidence does not permit the conclusion that plaintiff misled the assessors into the performance of an illegal act, or that she waived any of her rights. It follows that the defendant acquired no title to the lots by leases based on the assessment for 1889 and 1890.

The defendant, however, claims title under two other tax leases, antedating the assessments of 1889 and 1890. One bears date October 27, 1877, and the other October 5, 1883. Neither the assessment nor the tax upon which either of these leases rest was proven, and does not appear in the case ; but reliance is put upon the statutory provision that “ such lease shall be presumptive evidence that such tax was legally imposed and of the regularity of all the proceedings and of the sale.” Laws 1874, ch. 610, § 6. We are of the opinion that sufficient appears in evidence to overcome the presumption of regularity given by law to the leases, and that they convey no title to the lots in question. As already stated, the lots were a part of a tract of land, of about ninety-acres, known as the “ McIntyre Farm,” owned by Thomas É. Hawley prior to 1871. °The leases of 1877 and 1883 described by bounds “ all that * * * parcel of real estate known as ‘Thomas B. Hawley’s McIntyre Farm,’ eighty-six acres,” etc., and the statute shows that the proceedings to sell related to taxes for the year immediately preceding the sale. The presumption to be drawn from the lease, therefore, is that the tax for the nonpayment of which the McIntyre farm was sold was legally imposed, and was a charge upon lots 117 and 118, and that the proceedings for the sale were regular. But the court found that the lots were conveyed by Thomas B. Hawley to Henry Parsons in 1871, and that in and subsequent to that year they were assessed separate from the McIntyre farm, and that the taxes were paid for every year to 1889; and the case shows in detail the amount of each annual tax, and the time and manner of its payment. It is clear from this evidence that the leases of 1877 and Í883 have no relation to the lots in question, and if the lots lie within the general description contained in those instruments the presumption of the regularity of the proceedings for the sale, so far as it apparently applies to them, is entirely overcome by the fact that the tax imposed on them was paid. The sale of land for taxes, where the tax has been paid, is plainly a void act, and a deed based on such a sale conveys to the purchaser no interest in the land. The other deeds introduced in evidence by defendant, whicli purport to convey the McIntyre farm, were all based, on a conveyance by Thomas R Hawley subsequent to 1871, and do not transfer any interest in or title to the lots in question. The plaintiff clearly established her right to the possession of the property, and the judgment must be reversed, and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Brown, P. J.

license: Public Domain

text:
    John Lang, App’lt, v. New York, Lake Erie and Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Master and servant—Injury to third person.
    The question whether a servant, when he injures a third person, is acting within the scope of his authority, is for the jury.
    Appeal from a judgment dismissing the complaint.

      C. D. Rust, for app’lt; Benjamin F. Tracy, for resp’t.
   Brown, P. J.

—The plaintiff, a'boy of 11 years of age, while riding upon a coal train of the defendant, going from Bergen to Weehauken, fell off, and received the injuries complained of. The plaintiff’s testimony, however, was to the effect that one of the brakemen of the train threw coal at him, and as he was about to get off he was hit in the back of the neck by a large lump of coal thrown by the brakeman, and knocked from the car. The complaint was dismissed on the ground that the brakeman was not shown to have any express authority from the defendant to remove intruders from the train, and nbne could be implied from his position, or the nature of his employment, and the correctness of that ruling is .the only question presented for review.

We are of the opinion that the case, in all its aspects, was for the jury. The question as to the liability of a master for the acts of his servant is one that has received full and careful consideration in numerous cases in this and other states. It is not always possible to harmonize the decisions, and it would be impossible, in an opinion of ordinary length, to attempt a review of the numerous cases to which our attention has been called by the learned counsel who argued this appeal. The general rule applicable to a master’s liability is quite well settled, but it is difficult to apply it to the different circumstances under which the question arises. The learned counsel for the respondent has cited the case of Coal Co. v. Heeman, 86 Pa. St. 418, in which the facts are quite similar to those before us, and which fully sustains the ruling of the trial court; but that case is, we think, opposed to the current of authority in this state. The test of the master’s liability is not whether the injury is the result of acts committed by the express authority of the master, but whether the servant has authority to act in respect to the business in which he is engaged when the injury was committed; and for all acts done by the servant in the execution of his employer’s business, within the scope of his employment, the master is liable. Higgins v. Watervliet Turnpike Co., 46 N. Y. 23 ; Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129. In Roitnds' Case the plaintiff was kicked from the platform of a car upon which he was stealing a ride, by a baggageman who had authority to remove him from the train; and by this latter fact the case is distinguished from the one at bar. But in Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25, the plaintiff was kicked from the train by the conductor or a brakeman, and the case was considered by the couit of appeals upon the assumption that the injury might have been inflicted by the act of either. In the course of his opinion, Judge Andrews said: “ It is conceded that authority in a conductor to remove trespassers, in a lawful manner, is implied, and is incident to his position. We think the same concession must be made in respect to the authority of a brakeman who finds a trespasser on the platform of a car. * * * The implied authority, in such a case, is an inference from the nature of the business, and its actual daily exercise, according to common observation.”

The reasoning of the court upon this question renders its conclusion as applicable to a coal train as a passenger train. The conductor and brakeman are in charge of the train, and the property carried by it. Their duty is not only to properly manage the train, but to guard and protect it; and, very obviously, this duty implies an authority to remove intruders from it. The same rule was applied in Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249; affirmed in 113 N. Y. 670; 23 St. Rep. 994. It did not appear in that case who it was that did the act which was the cause of the injury, except that he was an employe of the defendant But, because the purpose of the act was the removal of the plaintiff from the car, the court held it was within the scope of the servant’s employment The case of Palmeri v. Man. Railway Co., 133 N. Y. 261; 44 St. Rep. 894, is a recent illustration of the application of the rule which makes the master liable for the unlawful acts of its servants. In that case a ticket agent charged the plaintiff t with having given him a counterfeit coin, and called him a “counterfeiter,” and other names. He demanded another coin in place of the one given him, and detained him in the station while he endeavored to get an officer to arrest him. ’ Because he was acting for his employer, and endeavoring to recover his property, the master was held liable for his acts. The brakeman in this case, if the plaintiff’s story was true, was acting for the protection of his master’s property ; and his act in removing the plaintiff was within his implied power, and incident to his position upon the train. We are of the opinion, also, that this question was decided in the case brought by the plaintiff’s father. Lang v. N. Y., L. E. &. W. R. R. Co., 51 Hun, 603; 22 St. Rep. 110; affirmed, 123 N. Y. 656; 33 St. Rep. 1030. In Judge Barnard’s opinion, he says, “ The brakeman was engaged in the master’s business, and acting within the scope of the authority.” An examination of the printed case and the points of counsel show that the point was fairly presented upon the appeal.

It follows that it was erroneous to dismiss the complaint, and the case should have been submitted to the jury. The judgment must be reversed, and a new trial granted, with costs to abide the event. •

All concur.


author: Ingraham, J.

text:
    Percy Rich, Pl'ff, v. Sargent Granite Company, Def't.

      (Supreme Court, New York Special Term,

      Filed March 1, 1894.)
    Receivers—Discovery op property.
    The receiver of a corporation, in an action to sequestrate its property, may maintain a proceeding to examine as to its property, alleged to be in their hands.
    Application by receiver for a warrant to bring certain persons before a justice of this court, to be examined concerning property of corporation.

      Samuel A. Noyes, for motion; Joseph Fettretch and Fettretch, Silkman & Seybel, opposed.
   Ingraham, J.

—I think, under § 1788 of the Code, a temporary receiver has power to maintain any action or special -proceeding for the purpose of collecting, receiving, or preserving the property of the corporation, and that a proceeding to examine any person who is alleged to have in his possession property that should be taken possession of by the receiver is a special proceeding for the purpose of collecting, receiving, and preserving the property of the corporation. The provisions of the Revised Statutes under which this application is made appear to be still in force, and if the receiver brings himself within the provisions of the statute it would seem that he would be entitled to the relief asked; and I think the affidavits are sufficient to entitle him to such relief. It appears that Matthew Baird was the principal stockholder, a trustee, and the treasurer of the corporation, and that on the 16th of April, 1892, he resigned as trustee and treasurer, and trans ferred all his stock to one Harrington, who was thereupon elected a trustee of the company, and its president, and that subsequently Matthew Baird became, by virtue of a bill of sale in the nature of an equitable mortgage, the owner of most of the property of the company. Said Baird claims title to such property under various bills of sale and leases, and under a sale made by the sheriff of Waldo county, in the state of Maine, upon an execution entered on a judgment in favor of said Baird against the corporation for the sum of $146,000. These facts, of themselves, I think, give the receiver the right to examine into the transactions between Baird and the company, and bring the case within the provision •of the statute referred to. The motion will, therefore, be granted; order or warrant to be settled on notica


author: Per Curiam.—

text:
    Timothy L. Hayes, App’lt, v. James P. Bainbridge, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Triad—Jury—Framing issues.
    A motion to frame issues for the jury will be denied in an action to set aside a chattel mortgage, where the answer asks for the enforcement of such mortgage by way of counterclaim.
    Appeal from an order denying a motion to frame issues.
    The opinion of Mr. Justice Rumsey at special term is as follows:
    The complaint sets up the giving of the note and the chattel mortgage, and the payment of usury, and prays judgment that both be declared void. The answer sets up the same things, except the usury, which it denies, and prays judgment by way of enforcing the two papers. The facts set up in the complaint and in the answer are precisely the same, and the causes of action in the two pleadings are not separate and distinct When the defendants have answered the plaintiff’s proof, they have exhausted the evidence to prove their counterclaim ; and they can make no proof upon it, except what they offer to disprove the plaintiff’s case, because both claims are settled when the plaintiff’s case has been decided.
    The case is therefore within Cook v. Jenkins, 79 H. Y. 575. Ho reason appears why the court should exercise its discretion by sending the case to a jury for trial. Motion denied, with $10 costs, to abide event

      Geo. M. Williams, for pl’ff; Chas. A. Widener, for def’t.
   Per Curiam.—

Order appealed from affirmed, with $10 caste and disbursements.


author: Dykman, J.

text:
    Charles A. Hedges et al., Resp’ts, v. West Shore Railroad Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Riparian owner—Rights.
    Riparian owner’s right to access to a navigable stream cannot be taken away without compensation.
    2. Eminent domain—Judgment.
    Judgment for damages, caused by operation of a railroad on plaintiff’s land, which requires plaintiff to release the damages caused by the operation of the road as subsequently changed, is inequitable.
    Appeal from a judgment in favor of plaintiffs.

      Ashbel Green {Edward Winslow Paige, of counsel), for app’lts; George W. Weiant {Andrew Shiland, Jr., of counsel), for resp’ts.
   Dykman, J.

—As the law is now settled in this state, an upland owner whose legal title extends to high-water mark upon a navigable stream of water has property rights therein, incident to his riparian proprietorship, which constitute property within the meaning of the fundamental law, of which he cannot he deprived without just compensation. Among such rights are access to the navigable part of the stream from the front of his land, and the right to cbnstruct a wharf for his own use or for the use of the public. Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79; 44 St. Rep. 248. Another principle equally well settled is this: The fact that the owner of land bounded by a navigable river has conveyed to a railroad company, for the use of its road, a strip of land along the water front, over which its route runs, does not deprive him of the character of riparian owner, within the meaning of the statute in reference to grants of lands under water, nor does it give to the company that character. Although the title granted to the company is a fee, it holds, and can only use, the land, for the purposes of its road. N. Y. C. & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83 ; 48 St. Rep. 373. These two principles will furnish material aid in the determination of this appeal.

The plaintiffs are the owners of a parcel of land in the town of Cornwall, on the westerly shore of the Hudson river, and they have also obtained, from the commissioners of the land office .of this state, a grant of land under the waters of the Hudson river in front of their premises. Upon the upland premises, the plaintiffs have constructed a brickyard, and all the structures and appliances appropriate to the manufacture of brick, and they have conducted that business there for several years last past The plaintiffs received their title to the upland in 1886, and their water grant in 1887. In 1882 the New York, West Shore & Buffalo Railway Company, the predecessor of the West Shore Railroad Company, constructed a railroad along the Hudson river in front of the lands of the plaintiffs, and between them and the navigable waters of the river. The road is so constructed as to obstruct the access to the river from the premises of the plaintiffs. The West Shore Railroad Company has succeeded to the rights of the corporation which constructed the railroad, and is subject to all the obligations and duties imposed upon railroad companies incorporated. The defendant the New York Central & Hudson River Railroad Company is the lessee of the road from the West Shore Company, and now operates the railroad. This action is brought for the purpose of restraining the operation of the railroad, and recovering the damages which have resulted therefrom.

The cause has been tried before a judge without a jury, and a judgment rendered in favor of the plaintiffs for $1,750 damages in the use, of the brickyard and $9,000 damages to the fee of the premises; that the plaintiffs are entitled to an injunction restraining the defendants from the further maintenance of the obstruction to the access to the Hudson river, but, in case the defendants pay or tender to the plaintiffs such sum, with interest, the injunction is not to issue, and then the plaintiffs must deliver to the defendants a release conveying to the defendants the right to use the waters, and the lands under water, within the boundaries of the lands granted by the people of the state to the defendants for the maintenance and operation of their railroad as the same is now constructed, or shall be hereafter changed, and a release of all future damages to be incurred by the plaintiffs from the maintenance and operation of said railroad as the same is now constructed, and as it shall be hereafter changed. The defendants have appealed from the entire judgment, and the plaintiffs have appealed from that portion of the judgment which directs them to release to the defendants the right to use the waters and the land, as the same shall be hereafter changed,' and to release all future damages resulting from the maintenance ami operation of the railroad as the same shall be hereafter changed. There was a claim for damages to a piece of property called “Sloop Hill,” but the claim was rejected by the trial court, and the plaintiff has not appealed from that portion of the decision. We therefore make no mention of the claim, or its rejection.

In relation to the appeal of the defendants which involves the merits of the action, it is only necessary to say that the first principle laid down at the head of this opinion is sufficient for the maintenance of this action. The Hudson river is viewed as a great public thoroughfare, and the rights of riparian proprietors upon that river and the rights of abutting landowners upon public streets are regarded as similar, and the rights pertaining to each are considered the same. Commencing with the Story Case, 90 N. Y. 122, and continuing through the numerous cases against the elevated railroads, and the Rumsey Cases and the Aldridge Case, supra, the questions have all been examined with a fertility of learning and reasoning and a wealth of illustration which has exhausted the subject. This case falls within the principles of those decisions. The plaintiffs had a right of access0 to the river from their property, and the railroad was an obstruction and an impairment of such right, and caused damages to the plaintiffs in the prosecution of their business, and diminished the value of their property. The amount of both sorts of damage has been assessed by the trial judge in amounts which are reasonable. Our conclusion, therefore, is that the appeal of the defendants presents no error. We think, however, that the trial judge has required too much from the plaintiffs in directing them to release to the defendants all future damages to be incurred from the maintenance and operation of the railroad as the same shall hereafter be changed. That requirement is not in harmony with the theory upon which the damages were assessed. The fee damages were awarded to the plaintiffs as compensation for the injury already inflicted by the obstruction as it has existed, and existed at the time of the commencement of the action. The provision requires the plaintiffs to release the defendants from damages which may result from any change of the structure, however injurious it may be. That seems to be inequitable. Ho damages have been allowed for future injuries, and none could be. The Lahr Case, 104 N. Y. 287 ; 4 St. Rep. 340, holds that abutters upon public streets are entitled to such damages as they may have sustained by reason of the invasion of the street by the elevated railroad, and such is the rule established in that class of cases. We have found no case which authorizes such a provision in a judgment, and we have been referred to none.

The judgment should be modified by striking out that portion of the judgment, and, as so modified, affirmed, with costs to the plaintiffs.


author: Per Curiam.

text:
    Richard Miller et al., App’lts, v. George W. Miller et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Will—Wira¡-and children.
    The word “wife” of a man, as used in a will, means the woman to whom he is legally married, and the term '‘children” means, in its usual and ordinary significance, legitimate descendants.
    2. Costs—Executors, etc.—Accounting.
    Where parties, who bring an action to compel the accounting of an executor, are not beneficiaries under the will, they should not be allowed a bill of costs out of the estate.
    Appeal from a judgment in favor of defendants.
    The opinion of Mr. Justice Rumsey at special term is as follows:
    Upon the proofs there is hardly any claim that James M. Miller was ever married to Margaret Fitzhugh. Whatever might have been said upon that point when the plaintiffs rested their case, such a marriage was shown to have been impossible when it was made to appear that the alleged husband was then actually married to Eliza Jane Shepard, and that she was living at the time of the trial of this action. The principal part of the cause of action was therefore eliminated from the case, and the plaintiffs stand now upon their claim that Margaret Bell and her children are the wife and children of James M. Miller referred to in the will of Andrew Miller, and are the persons intended to the beneficiaries under that name. In considering this claim, we must start with the proposition that the wife of a man. is the woman to whom lie is legally married, where there is such a person, and that by the term “children” is meant, in its usual and ordinary significance, bis legitimate descendants. Mowatt v. Carow, 7 Paige. 328 ; Shearman v. Angel, 1 Bailey, Eq. 351. In the highest English court it has been said and decided that the word “children” in a will means, prima facie, “legitimate children,”—as much so as if the word “legitimate” had been introduced before it,-—unless, when the facts are ascertained, some repugnancy or inconsistency would result from so interpreting it. The probable intention of the testator cannot-be taken into account. Dorin v. Dorin, L. R. 7.H. L, 568. See, also, Paul v. Children, L. R. 12 Eq. 16. It is-plain that the will contains no expression or description which will point to or identify Margaret Fitzhugh or her children as the persons referred to as the “wife and children” of James M. Miller. But the plaintiffs claim that, if there are no legitimate children,' it is competent to prove the situation of testator’s family to show that, in the particular case, he used the term “children” to mean natural children. If that rule is applied here the question will be, what has been made to appear with regard to Andrew Miller’s knowledge of the relations between his son and this woman, and whether, from the facts so appearing, there arises any presumption that he intended to provide for them under the description of the “wife and children” of bis son ? While it is clear that there were improper relations between James M. Miller and Margaret Fitzhugh, in Rochester, in 1856, there is no evidence, except her own,. that the person with whom she lived as her husband, there or in Hamilton, was James M. Miller, the son of Andrew Miller. Mr. David Jones knew James M. Miller, and he saw them together in 1862 or 1863, when they brought the plaintiff to W. I. Jones to be kept. It may be inferred from that testimony that the intimacy between James M. and Margaret still continued, and that he • acknowledged that child as his. But, with that exception, no.t one witness was sworn, except the alleged wife, -who, having known James M. Miller, could or did say that it was he who lived with this woman as her husband. They say that she was called Mrs. Miller, but their evidence as to her alleged husband entirely fails to identify him. Mrs. Both saw him go there, but she never saw him to his face, and she did not know James M. Miller, and never saw the man she supposed was he until she saw him at Ontario street. Mrs. Kiernan saw the alleged husband there, but she never knew James M. Miller, and cannot identify him. Mrs. Tierney never saw any man there. These are all the witnesses who speak of the association of James M. and Margaret. They all lived in Rochester, and they knew nothing of the life of these people in Hamilton. It is noticeable that they give no description of James M. Miller, and there is nothing to show that he was the person who lived with Margaret on Ontario street, so far as their evidence goes. They were not shown the picture which Mrs'. Bell identified as that of the father of her children, and which hung in her parlor in her house in Hamilton. Whether or not it was James Miller with whom she lived on Ontario street, there is no pretense that his father, Andrew Miller, knew of the intimacy, or of the children, or anything about it This is the only important matter with regard to that period of the lives of these two people, and this must all the time be borne in mind. But when we come to the life in Hamilton the evidence is still more meager. It is to be rejnembered that the plaintiffs try to show that this woman and James .Miller lived in that city as man and wife for several years; that a family of children grew up there; that she was recognized as his wife; and that Andrew Miller knew all this, recognized these children as his grandchildren, and had that familiarity with and affection for them which raises a presumption that he had them in mind-when he made his will, and intended to provide for them. _
    _ It is apparent from the evidence in the case that James Miller was well known in Hamilton. His father had property there, and spent such time in the city, as did James also. His brother lived there, with his family, at the very time that it is asserted that James and Margaret lived there as man and wife. It is strange that not one person of all those who must have seen these persons and Andrew Miller in the same house, and associating together, is brought here to prove it, if it took place. The plaintiffs say their cohabitation was open and notorious ; that it was legitimate and proper, and so recognized by the parents of James; and yet not one person, of all in that city, is brought to swear that these people even lived together. It is a strange failure of proof on a vital point. So this important matter stands solely upon the testimony of interested witnesses, and, in the last analysis, the only evidence there is to show that the person with whom she lived in Hamilton was James Miller, or that the older man was Andrew Miller, is that furnished by Margaret Fitzhugh. Her oldest child, born in 1857, was only six years old when Andrew Miller died. None of the children pretend to say anything about him! They say that there was an old man there who paid some attention to them, but who he was they do not pretend to say. So with their father. They say a man was there whom they were told was their father. They saw him seldom. Those who describe him say he resembled the picture produced, and that they were told this was a picture of their father. All this amounts to nothing, aside from the testimony of Mrs. Beil. So the whole case of the plaintiffs, to bring them within the will, hinges on her testimony. Aside from the fact that she has a deep interest in this action, her character, as shown by this testimony, is not such as to enhance her credit. But that point need not be discussed. Her testimony is that James Miller lived with her, as her husband, in several houses in Hamilton,—part of them owned by his father. She says that the man who lived with her there was the man whose picture is produced on the trial. This picture w7as on the wall, and she said it was the picture of her children’s father and told them so, and Richard swears it resembles the man whom he called his father. Mrs. Bell swears it was James M. Miller’s picture, and that he gave it to her. . Now, if there is anything established in this case, it is that that picture is not the portrait of James Miller. No one swears that it was, except Mrs. Bell. Mr. David Jones, a witness for the plaintiffs (the only one besides Mrs. Bell who knew James Miller), was not shown the picture. On the part of defendant, three men who knew James Miller testified that the picture was that of another man, and not of him. James Miller lived in Rochester many years. There were, I doubt not, a very large number of people in that city whocould have told whether or not the picture resembled him, or was his portrait. As none of them were called, it is fair to assume that the fact that it was his likeness was disproved.
    The overthrow of that important part of Mrs. Bell's testimony strikes a fatal blow at her credibility. If the man she lived with in Hamilton was not James Miller, the plaintiffs’ case is at an end. So, if she is wrong in her statement that the old man who played with the children in her rooms was Andrew Miller, „ the case miserably fails. If the man she then lived with was not James, of course, the old man was not James’ father. To suppose that he would visit his son’s paramour while she was living with another man is absurd. There is not one particle of evidence to support her claim that this old man was the testator. No witnóss ever heard him speak of this woman or of these children. No other person than she ever saw him there. He made them no presents. He was not with them in the street. No one says he took them anywhere, There is not one tittle of evidence that he knew them, except the testimony of this woman, discredited by her history, not probable in itself, and totally uncorroborated. It is incredible that Andrew Miller should have visited these people so frequently and familiarly without some one of Mrs. Bell’s friends seeing him there, or some one of his acquaintances hearing him speak of them. In the absence of some testimony of this kind, or of some other kind, to bolster up the testimony of Mrs. Bell, I would not feel at liberty to accept it as decisive of an important case. Unless it is accepted there is nothing to show thatr Mr. Miller knew of these children, or had any regard for them, or intended to refer to them when he made the devise for the benefit of the wife and children of his son James. The plaintiffs’ claim that they are beneficiaries under the will, therefore, falls to the ground. When their case fails there can be no reason for giving them costs out of the estate. They have no more right to bring an action for construction of the will of Andrew Miller than for the construction of the will of A. T. Stewart. Indeed, the complaint alleges no such object. The action is purely and simply to get one-half of Andrew Miller’s estate. The fact that they have failed to get what they prayed for affords no reason why the true owners of the estate should be compelled to pay to them a premium for their efforts to deplete it, by way of a bill of costs. Whatever claim these people might have had, in justice, to share in James Miller’s estate, they surely have none in that of his father, who was in no way responsible for them or chargeable with them. The award of costs must follow the usual rule.

      M. F. Brown, for app’lts; Geo. W. Miller, for resp’ts.
   Per Curiam.

—Judgment appealed from affirmed, with costs, ‘ on opinion of Rumset, J., at special term.

All concur.


author: Brown, P. J. Dykman, J.

text:
    Clara Ottendorff, Resp’t, v. James Willis, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Negligence—Question eor jury.
    The facts, in this case, were held to render the question whether the driver was negligent one for the jury.
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.

      Henry L. Schenerman, for app’lt; Norman A. Lawlor, for resp’t.
   Brown, P. J.

—The plaintiff’s intestate, while crossing South street, in the city of Hew York, was run over by a large truck owned by the defendant, and received injuries from which he died. The accident happened about midday upon the crossing leading from Roosevelt street ferry to the southwest corner of South and Roosevelt streets. The deceased was coming from the ferry, and the truck was being driven to the dock of the Clyde line of steamships. The only witnesses who saw the accident, and attempted to describe it, were the driver of the truck and a man named Leo. The, latter was called by the plaintiff, and when she rested her case it did not appear which party was to blame. At the suggestion of the court, Leo was thereupon recalled, and testified as follows: “ This truck was standing still on Roosevelt street. This old gentleman was walking ahead when it was standing still. He was about fifteen feet from the truck when it started, -while he was walking ahead. When it started, Ottendorff was walking right ahead of the truck. He was always in front of the truck. I should judge, about eight feet, at that time. He was in front of the truck, and the driver whipped up his horses. He was eight feet away from the truck.—six feet from the truck. There was three crosswalks there,—two straight ones, and a slanting one from the ferry,—and this old gentleman was walking on the slanting cross-walk, towards Roosevelt street. Then the truck was standing on the side of Roosevelt, when he started ahead and struck the old gent. If the old man had stopped when the truck started, ahead, he would not have been hit. He was not in line with the truck. He kept right ahead,— going ahead of the truck. The driver of the truck brought his truck between Ottendorff and the sidewalk. There was more than fifty feet beyond where he could have gone clear. This truck was driving towards the down-town side on Roosevelt street,— going towards the river side.”

The driver contradicted this evidence, and gave testimony which, if believed, entirely exonerated him from fault, and placed the blame upon the deceased. I think the case was for the jury. If the deceased started to cross the street while the truck was standing still, his action in doing so was not careless, and the driver of the truck was bound to avoid him. The driver testified that he saw the deceased, and observed that he was an old man, and appeared timid; and his proper course was to have delayed starting his team until the deceased had passed in front of him. The evidence, I think, permitted the conclusion that the driver was negligent, and that the deceased exercised due care.

It was within the discretion of the trial court to permit the witness Leo to be recalled, and the exception to the ruling presents no question upon this appeal. Whether Leo’s testimony was worthy of belief was a question for the jury, and not for the court.

The judgment and order should be affirmed, with costs.

Cullen, J., concurs.

Dykman, J.

(dissenting).—This is an action under the statute to recover damages resulting from the death of John Philip Ottendorff. The plaintiff, who is the administratrix of the deceased, recovered a verdict for $1,500, and the defendant has appealed from the judgment entered thereon, and from the order denying a motion for a new trial upon the. minutes of the court. The accident occurred on the 18th day of January, 1890, upon the cross-walk leading from the Roosevelt street ferry diagonally across South street. The deceased was coming from the ferry. At that time a heavily laden truck, drawn by two horses, belonging to the defendant, and driven by a person in his employ, was waiting to go to the Clyde dock, and to reach there it was necessary to cross the diagonal sidewalk. But one person who witnessed the accident was called by the plaintiff, and his testimony was quite unsatisfactory. In one portion of his evidence he said he saw the wagon and the man approach each other, and saw the accident, but did not know how it was. When the plaintiff rested the defendant made a motion to dismiss the complaint, and the trial judge intimated that the case was very meager with respect to the party who was in fault Thereupon, a witness was recalled, and said the truck was standing, and started after the deceased was in front of it. Then the motion for a nonsuit was denied, and the defendant ealléd the driver of the truck as a witness ; and he said he shouted to the deceased, who stopped, and then he (the driver) got under way, and thereupon the deceased attempted to run around ahead of the team ; and that he got nearly past the team when the cross bar struck him. That testimony harmonized with^ the evidence of the plaintiff’s witness, and with all the other proof introduced by the defendant. In view of the rule of law that negligence on the part of the defendant and freedom therefrom on the part of the injured person are affirmative facts, to be established by the plaintiff by a preponderance of proof, we think the plaintiff failed to sustain the burden, thus cast upon her. All the witnesses were disinterested, except, as it may be said, the driver was interested to show himself free from fault Yet he was fully corroborated by the officer. In one material point he was corroborated substantially by the chief witness of the plaintiff, who said the deceased kept walking straight ahead, and if he had stopped when the truck started ahead he would not have been hurt The driver said, on that point, that he just got started to go ahead as the deceased stopped, and then he put the whip on the horses, and the deceased attempted to run around the team. In a case quite similar to this it was held by the court of appeals that: “ It is negligence per se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind, under such circumstances, upon nice, calculations of the chances of injury. If such attempt be made, and the calculations fail, to the plaintiff’s harm, he can have no redress for injuries received in his mistaken effort.” Belton v. Baxter, 54 N. Y. 245.

To the same effect is the case of Wendell v. N. Y. C. & H. R. Railroad Co., 91 N. Y. 420.

The police officer saw more of the occurrence than the principal witness for the plaintiff, and as he corroborates the testimony of the driver the great preponderance of the evidence is in favor of the defendant It shows the driver free from fault, and convicts the deceased of contributory, nngligence. The condition and situation in which he was placed demanded from him a vigilant use of his eyes, and a careful exertion of prudence, and it is plainly evident that the exercise of ordinary care and caution would have saved him from injury. Instead of stopping and remaining in a place of safety as he could easily have done, he moved forward into a situation of great danger, which was plainly apparent. The dav was bright, and there was nothing to obstruct the view or obscure the danger. The proof therefore fails to establish negligence on the part of the driver, or freedom from negligence on the part of the deceased. The judgment and order denying the motion for a new trial should be reversed, and a new trial granted, with costs to abide the event.


text:
    David H. Sprague, Resp’t, v. Edward Sprague et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Evidence—Handwriting.
    A witness who, though he never saw the intestate write, narrates occasions when he received papers from him under such circumstances as left no doubt that they were written by him, is qualified to express an opinion as to the genuineness of his signature.
    Appeal from a judgment entered on a verdict for plaintiff, and ■t, from an order denying a motion for new trial.

      C. D. Van Name, for app’lts; Louis S. Phillips, for resp’t.
   Brown, P. J.

—This action is upon a promissory note made by the defendants’ intestate. The answer denied the making and delivery of the note, and any indebtedness thereon. The main question of fact litigated upon the trial was as to the authenticity of the note, and the verdict of the jury has, upon ample testimony, determined that question in the plaintiff’s favor. The question of consideration did not arise upon the pleadings. The answer was in effect a general denial, and that put in issue all facts which plaintiff was bound to prove to make out his cause of action. Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429. A promissory note, whether it expresses value received or not, imports a consideration, and the burden rests upon the defendant to prove the fact is otherwise. Carnwright v. Gray, 127 N. Y. 92; 38 St. Rep. 56. As the answer did not plead that defense, the court was correct in its charge that there was no question of that kind in issue. The fact that the payee of the note was the maker’s mother did not take the case out of the operation of the rule cited.

Exception was taken to the admission of certain specimens of the deceased’s handwriting, and also to the evidence of Edward Sprague that the signature to the note was that of the deceased. This witness testified that he never saw the deceased write, but he narrated occasions when he received receipts and other papers from him under circumstances which left no doubt that they were written by the deceased. In our opinion the witness was qualified to express an opinion as to the genuineness of the signature to the note, and the papers were properly admitted in evidence for the purpose of comparison. The statute (chapter 555, Laws 1888) makes such writings admissible when “ proved to the satisfaction of the court to be the genuine hand-writing ” of the person who it is'claimed executed the disputed instrument; and, if this witness was to be believed, no reasonable doubt existed as to the genuineness of the papers admitted.

No other question requires notice. The judgment and order must be affirmed, with costs. All concur.


text:
    The People ex rel. Edward Hazlett, App’lt, v. Alfred T. White, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Municipal corporations—Officers—Removal.
    The discharge of a meter inspector, by the commissioner of city works, for reducing the reading of a water meter without apparent reason, will not be disturbed on certiorari.

    Certiorari to review the decision of the commissioner of the department of city works, discharging relator from the position of meter inspector of said department.

      J. Stewart Ross, for relator; Albert G. McDonald, Corp. Counsel (Howard O. Wood, of counsel), for resp’t.
   Brown, P. J.

—I advise an affirmance of the order in this case without an opinion. Relator was charged with gross carelessness in changing the reading of the water meter of the Citizens’ Electric Illuminating Company in July, 1891, and in.recommending the reduction of the reading. The readings from the meter appear at folio 60 of the appeal book. There is no evidence that there was anything the matter with the hand of the meter which registered hundred thousands. Without, apparently, any justification, relator recommended a reduction of the reading of March 12tli to 542,157 feet. This was far below the register for January 19th. There was no complaint that the readings of December and January were wrong, and, unless they were, the reading of March 12th was about right. Relator made no examination of the matter until May, and in July reduced the reading of March 1,000,000 feet. His action is somewhat remarkable, and although he had been in the city’s employ many years, and bore an excellent character, the respondent had power to remove him; the facts justified it, and I do not think the court ought to reverse his decision. There is no question of law in the case, and nothing calling for an opinion. All concur.


text:
    William N. Dykman, as Receiver, etc., Resp’t, v. William J. Northridge, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Banks—Bona fide purchaser.
    A bank is not a purchaser for value of a note discounted by it, while still in possession of the proceeds.
    2. Evidence—Documentary—Bank books.
    Entries in hank books, made by a person, who has no knowledge of the transactions, are not admissible to show payment of a check.
    Appeal from a judgment entered on a decision by the court without a jury.

      Thornton, Earl & Keindal, for app’lt; James C. Bergen, for resp’t.
   Brown, P. J.

—This action is upon a promissory note, dated May 10, 1893, made by John J. Vail to the order of appellant, payable three months after date, at the Commercial Bank. Vail was the cashier of the bank, and the court found that the appellant indorsed the note at his request, and for his accommodation. Under the pleadings, it was essential to the plaintiff’s recovery that lie should prove that the bank was a holder for value, and this he attempted to do by the production of the bank’s books and reading in evidence various entries in reference to the note. But no witness was produced to give testimony as to the transaction by which the bank acquired the note, although there is no reason apparent why the evidence of the cashier or paying teller, who would appear to have knowledge of the matter, was not taken. By appropriate entries read from the discount book it appeared that the note had been discounted by the bank, and its proceeds credited to the cashier account. But, obviously, that was not sufficient to give to the bank the character of a holder for value. The cashier's relation to the bank was such that money credited to an account kept in the name of his official title must be deemed to be in the possession of the bank. The plaintiff then produced a cashier’s check for the amount of the proceeds of the note, signed by Yail, and payable to himself, individually; also thecheclt book containing the stub from which the check was torn; and read in evidence, against the defendant’s objection and exception, from a book of paid checks, an entry of the payment of the check, and from the ledger an entry charging such check to the cashier account. The clerk who made these entries testified that he had no knowledge of the transaction, and that he made the entries in the books from the checks taken from the paying teller’s desk. No other testimony was offered, and upon these facts the court found the check was paid. The bank could not become a holder for value of the note by crediting its amount to the cashier. Unless he received the money as an individual, and not as cashier, the bank parted with nothing. Central Nat. Bank v. Valentine, 18 Hun, 417. The entries in the bank’s books were not admissible as proof of payment, and the objection thereto was well taken. But the entries did not prove the" fact of payment. They were not made by persons having knowledge of the transactions which they purported to record, and the inference drawn from them is all based upon the assumption that a check found upon the desk of the paying teller has been paid by the bank. The court could not assume such a fact. If it had any relevancy to the case, it was a matter to be established by competent proof. The evidence is wholly insufficient to support $he judgment, and it must be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: Mayham, P. J.

text:
    In the Matter of the Estate of Francis A. Bush, a Lunatic. In the Matter of the Accounting of Frank F. Hathaway, as Committee, etc.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894,)

    1. Lunatic—Committee—Accounting.
    A committee of a lunatic, who receives from his predecessor securities iu lieu of cash, is responsible for the propriety of the investment.
    2. Same.
    The evidence was held not to establish bad faith on the part of thecommittee in receiving a mortgage from his predecessor.
    Appeal from an order confirming the report of a referee appointed to state the accounts of a committee o£ a lunatic.

      Matthew Hale {Q. H. Beckwith, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Mayham, P. J.

Francis A. Bush, the lunatic, having died intestate, Alfred Gordon was duly appointed administrator of his goods, chattels, and credits, and as such filed his petition for the accounting of the committee, Frank F. Hathaway, who thereupon joined in such petition, and, having filed his accounts as such committee, the court duly appo:m.ed Boyal Corbin as referee to take and state the accounts of such committee, who, after hearing the parties, made his report, which, on application to the court, was modified, and, as modified, was confirmed, from which order of confirmation this appeal is taken. .

The first question raised on this appeal is as to whether two mortgages held by the committee as such should be turned over to and received by the administrator at their face value as a part of the trust fund in the hands of the committee, or whether he should be charged with the face value of the same in cash. The appellant, Hathaway, succeeded Hiram Clark, as committee of tile estate of Francis A. Bush, the lunatic. Clark had been such committee for several years, and on his accounting, on the 14th of February, 1892, there was found to be due the estate of the lunatic the sum of $8,257.13, and also a bond and mortgage for $1,000, given to the committee, Clark, by one George L. Clark, 'and a pension certificate issued to the lunatic, granting him a pension at the rate of $72 per month. On the 15th of February, 1892, Hathaway, as committee, filed his inventory of the estate of the lunatic, stating that he had then on hand, cash, $8,257.13, únd the George L. Clark mortgage of $1,000, for which he on that day gave his predecessor, Clark, his receipt. The referee finds the appellant, Hathaway, at the time .of giving such receipt, received in lieu of cash from his predecessor, Clark, a mortgage of $2,500, executed by said Clark to Merritt Sowles, and assigned by him to Hathaway as such committee; and that at the same time, in lieu of cash, he, as such committee, received another mortgage, made by Gregory to Webster Clark, a brother of Hiram Clark, committee, on which there was unpaid and owing the sum of $1,466.50, principal and interest. Hathaway, as such committee, received from- his predecessor several other real-estate mortgages as cash, about which ho question is raised here. The referee held and reported that the Clark and Gregory mortgages were not proper securities in which to invest the trust funds in the hands of the committee belonging to the lunatic, or to allow the appellant to turn them over to the administrator in payment and discharge of his liability as such committee, and the special term sustained the report of the referee in that respect. The appellant duly excepted 'to. this part of the report of the referee, and to the decision of the court thereon, and the principal contention on this appeal arises out of that refusal. Hathaway, when he assumed the duties of committee of the person and estate of the lunatic, by his inventory acknowledged' the receipt of his predecessor of $8,257.13. His predecessor, by his account, was charged with that sum as cash on hand, and made no claim that any of that amount was at that time invested in either of the mortgages in controversy here; so that the appellant must be deemed to have .voluntarily made these investments himself, and not to have accepted those securities as investments made by his predecessor. He had it in his power to compel his predecessor to pay the amount found in his hands in cash, and, having received these securities in lieu of cash, he, and not his predecdssor, must, on this accounting, be held liable if the securities received by him were not such as he might receive as an investment of the trust funds committed to his care. While it is quite apparent from the transactions connected with the making of the Hiram Clark mortgage that he gave the same for the purpose of meeting in part his liability as committee on his accounting, we do not see how that fact alone can prejudice the rights of the appellant, provided he had reason to believe, and did believe, that the mortgage was good and adequate security for the amount invested in it. The execution of the mortgage by Clark to Sowles, who was at that time presiden^, of the First National Bank of Plattsburgh, and who gave Clark his check for $2.500, the amount of such mortgage, who indorsed the check to the order of Hathaway, committee, who received the same in part payment of the amount due from Clark as late committee, was a valid payment. That check bore date on the 15th of December, and was deposited by Hathaway to his credit in the bank, and on the 29th of January .he gave his check for $2,500 to Sowles, and received for the same an assignment of the Clark mortgage. There is nothing in this transaction which seems to impugn the good faith of Hathaway in taking the assignment of this mortgage as an investment for the benefit of the trust estate. He could at any time, on his check, after the Sowles check was placed to his credit, have drawn the currency from the bank as committee. Instead of that he saw fit to invest the proceeds of his deposit in the purchase of an interest-bearing security. This was his d&ty as committee, provided the security in which such investment was made was reasonably adequate for the amount invested.

The referee, in his thirteenth finding o'f fact, finds that this Clark mortgage of $2,500 was doubtful security for that amount, and by his fourteenth finding of fact he finds that the same was not taken by Hathaway in entire good faith; and by his conclusion he finds that the lunatic’s estate is not bound to take the same, but is entitled to demand cash of the committee for the amount of the same. Exceptions were duly taken by the committee to such findings and conclusions. The referee, in his report, refers to the social, business, and kinship relations existing between Hiram Clark and the appellant at the time lie became the committee of this lunatic, to which the appellant excepted. It is difficult to see the materiality of these facts to the real question under consideration. The real question is, was the mortgage such a security as a prudent business man would take on investing his own funds? The answer to this question would seem, under the authorities, to measure the responsibility of a committee of the estate of a lunatic. In King v. Talbot, 40 N. Y. 86, the court of appeals, in discussing the liability of a trustee, by Woodruff, J., says: “My own judgment, after an examination of the subject, and bearing in mind the nature of the office, its importance, and the considerations which alone induce men of suitable experience, capacity, and responsibility to accept its usually thankless burdens, is that the just and true rule is that the trustee is bound to employ such diligence and such prudence in the care and management as in general prudent men of discretion and intelligence in such matters employ in their own like affairs. * * * The preservation of the fund, and the procurement of a just income therefrom, are primary objects of the creation of the trust itself, and are to be primarily regarded.”

Adopting the rule as above stated, and applying it to the security under consideration, and eliminating all the extraneous consideration of the relations between the outgoing and incoming committee, and testing this question by an examination of the sufficiency of the security alone, it seems clear that the referee’s determination as to the Clark mortgage was erroneous. The estate of the lunatic has thus far suffered no loss by this investment. The assignor of this mortgage took it as a sufficient security for a loan to Clark of $2,500. He was a business man, and president of a bank, at the time of making such loan and taking this security. Several apparently competent business men and real estate owners and dealers, acquainted with the real estate covered by this mortgage, and with other real estate located in its vicinity, testified that its value was, at the time of the assignment of this security to the committee, from $3,000 to $4,400. The mortgage-bore interest at the legal rate of interest, and contained the interest •and insurance clause, and was apparently in every respect a desirable security. If, under such conditions, the trustee charged with the duty of keeping trust funds invested on interest is to he held responsible for the payment of the same in cash, without recourse to the securities, then the duties and obligations of committees and trustees will become too onerous and risky for ordinary business men, and responsible and competent men will refuse to assume-such duties. It is quite true that trusts for the benefit of the incompetent and infants should be administered with great care- and-fidelity, and that improvidence and dishonesty on the part of a trustee should be visited with severe condemnation and penalties-by the courts. But when the trust has been administered with fidelity, and with the prudence and caution that would characterize-a prudent business man in the management of his own affairs, if loss happens, it should not be visited upon the trustee. I am-therefore clearly of the opinion that the Hiram Clark mortgage-was a security in which the committee might, at the time lie took the same, lawfully invest the trust funds; and that the administrator of the estate of the lunatic should be required to take the same-at its face value, with accrued interest, and credit the same to-the committee on his account on this final accounting.

A careful examination of the evidence of the Henry Gonyea mortgage leads to the conclusion that that was full and adequate security for the amount of the trust fund invested in it, and that the reasons stated in reference to the Hiram Clark mortgage apply with equal force to the Gonyea mortgage, and that it, too, should be received by the administrator of the estate of the lunatic, and credited to the committee on his accounts. The referee was right in disallowing the committee’s claim for personal services, and in his refusal to allow for the payment of interest on the Moon mortgage. The order appealed from should be so modified as to allow the appellant a credit of $2,500, the amount of the Hiram Clark mortgage, and $1,466.50, the amount of the Henry Gonyea mortgage, and that those mortgages, with the bonds accompanying them, be transferred and delivered by the appellant to the administrator of Francis A. Bush, the deceased lunatic, and as so modified, that the same be affirmed, without costs of this appeal to either party as against the other. All concur.


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    Richard H. Shires, Resp’t, v. Fonda, Johnstown and Gloversville Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894)

    Negligence—Contributory.
    A person, who drives on a railroad track without looking for an approaching train, is guilty of contributory negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Baker & Burton, for app’lt; L. F. Fish, for resp’t.'
   Mayham, P. J.

Two questions only seem to be. presented for our consideration on this appeal: First. Was the defendant negligent in running its trains at too high a rate of speed in crossing this highway, without suitable signals and warnings of its approach? Second. Was the plaintiff guilty of contributory negligence, or rather did the evidence show that he was free from contributory negligence, in driving his horse and wagon onto this railroad track at the time of the collision and injury ? The track of the defendant’s railroad starts from the depot at Fonda, and runs in a westerly direction, nearly parallel with Main street in that village, about 1,000 feet, where it crosses the Cayudetta creek, and there commences to curve to the north on an ascending grade of 42 feet to the mile, and, at a distance of 200 feet from the creek, crosses that street af an acute angle with the same. Northerly of the railroad bridge over this creek, and at a distance of 185 feet therefrom, Main street crosses the creek, and continues in a westerly course 128 feet, to where it is crossed by the railroad track. At this junction of the railroad and the street, the carriage of the plaintiff collided with an engine of the defend.ant, and the injury of which the plaintiff complains was inflicted. The accident occurred about 7 P. M. on the 10th of May. The traiii started from Fonda, and was moving up the track towards Johnstown at a moderate rate of speed, and as the same passed over the railroad bridge, 200 feet from the junction, the plaintiff drove over the wagon bridge in the direction of the junction, and 128 feet therefrom. Between the turnpike or street on which the plaintiff was driving, and the railroad track, there appears to have been three intervening obstructions to vision,—one a house 22 feet wide, and two elm trees. With the exception of these obstructions, the railroad track was visible, from the street on which the plaintiff was driving, all the distance from the highway bridge to the railroad crossing. The undisputed evidence shows that from a point on the highway or street on which plaintiff was driving, 45 feet from the track, the view of the track from the crossing to the railroad bridge, a distance of 200 feet, was entirely unobstructed. The train was moving at the rate of from 8 to 10 miles per hour, and seven witnesses swear that the whistle of the locomotive was sounded and the bell rung as the train approached this crossing. The plaintiff, his wife, and a lady riding with them each swear that they did not hear these signals.

Upon these facts, we think that the plaintiff failed to make a case of negligence on the part of the defendant. It does not appear that the defendant’s train, at the time of the accident, was running at an unusual or dangerous rate of speed. And the evidence that the usual signals and warnings were given on the train, on approaching this crossing, seems overwhelming. That evidence is of a positive and affirmative character, and testified to by seven witnesses, some of whom do not appear to be in any way connected with the defendant, and as to those who are shown to be the employes of the defendant, there is no greater presumption of bias attached to their testimony, on the ground of interest, than would attach to the testimony of the plaintiff and the two íadies riding in the-carriage with him. The burden is upon the plaintiff, who charges negligence upon the defendant, to establish the truth of his charge. In this he seems, upon the evidence, to have failed; and, if the appellate court ought ever to reverse where there is some evidence in support of a verdict, but a clear and decided preponderance of evidence against it, this is such a case. But if there is sufficient evidence of negligence on the part of the defendant to uphold the verdict, we think that the evidence wholly fails to establish the plaintiff’s freedom from contributory negligence. As we have seen, the plaintiff was in plain view of this track, for most of the distance from the railroad and wagon bridges to the crossing at which the accident occurred. He was acquainted with the location of the highway and railroad track. The evidence shows that if, on approaching the railroad track, he had looked, he could and must have seen the approaching train. Had he done so, he could without difficulty have avoided collision by turning to the right-, -into the public road on the east side of the Lisner House, or, if he had passed that house, by turning into the road to the coal house, between the Lisner House and the railroad sign, either of which presented a safe and accessible way of escape. It is true the plaintiff testifies that he was lookiug to the north, and did not observe the approaching train on the south; but, as trains were liable to approach from either direction, he was required, in order to relieve himself from the imputation of negligence, to look in both directions. Cullen v. President, etc., D. & H. C. Co., 113 N. Y. 667; 23 St. Rep. 719; Crandall v. Lehigh Val. R. R. Co., 72 Hun, 431; 55 St. Rep. 170. We think that the learned trial judge erred in refusing to nonsuit the plaintiff, on the motion of the defendant, at the close of the testimony, and in refusing to set aside the verdict and grant a new trial on defendant’s motion upon the minutes.

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