text:
    In the Matter of the Application of the BUFFALO AND JAMESTOWN RAILROAD COMPANY v. THE RAILROAD COMMISSIONERS OF THE TOWN OF COLLINS.

      State Constitution, art 8, § 11 —Bonding of towns for mitroad purposes— effect of adjudication by county judge — Contract between town and railroad company — when complete.

    Section 11, of article 8, of the State Constitution, has the effect of repealing al acts of the legislature relating to the- bonding of towns for railroad purposes, except so far as they relate to existing contracts actually made and in force when the provision went into effect.
    The adjudication and judgment of the county judge, that a, majority of the taxpayers of a town consented to the issue of such bonds, created • no absolute right in the railroad company thereto.
    No contract or legal obligation is created, as against the town, till the subscription for the railroad stock is made.
    Motion made pursuant to the provisions of chapter 907 of the Laws of 1869, chapter 507 of the Laws of 1870, aud chapter 925 of the Laws of 1871, for an order of this court requiring the railroad commissioners of the town of Collins, in the county of Erie, to issue the bonds of said town to aid in the construction of the Buffalo and Jamestown'.Railroad, and to fix the terms upon-.which said bonds shall issue. •

      Grover Cleveland, for the railroad company.

      E. 0. Sprague and Torrance ds Allen, for the commissioners.
   E. Darwin Smith, P. J.:

This is an original application to this court, pursuant to the fifth section of the town bonding act, passed May 18, 1869, and amended in 1870, and as amended in 1871, in and by which it is provided that in case the commissioners, appointed upon any petition of the tax-payers under said act, and the railroad company cannot agree, or in case the commissioners refuse to make any agreement, then in either case this court, at General Term, upon motion, and upon a hearing of the parties interested, may determine upon what terms and conditions sncb bonds shall be issued to said railroad company.

It appears from the papers used upon this motion, that upon a petition purporting to be signed by a majority of the tax-payers of the town of Collins,, in the county of Erie, duly presented to the county judge of said county, said judge took such proceedings under the statute, that he ascertained, determined, and adjudicated, in due form, on the 27th day of July, 1872, that said petition was signed by a majority of the tax-payers of said town, and that he then proceeded to appoint, and then and there did appoint, the respondents upon this motion, railroad commissioners of said town, under said acts, and that the said parties took upon themselves the duty and office of such commissioners, and proceeded to issue to said railroad company $15,700 of said town bonds in exchange for the certificates of said company for $15,000 of the stock of said company, and that said commissioners have since refused to issue, and do 'refuse to issue, any more of said bonds, or to take or subscribe for any other shares of the stock of said company.

If it were a judicial duty, which we are not prepared to admit, for us to arbitrate between a railroad company and the railroad commissioners of a town, or make bargains between them, in respect to the issue by the latter of the bonds of their town, or to assume to order or prescribe the termsi upon which such commissioners should issue such bonds, where clearly we have no power to enforce obedience to our decision or direction, I should nevertheless think that this motion should be denied. The said railroad company have not acquired any vested right to require the issue of such bonds. The adjudication and judgment of the county judge, that a majority of the tax-payers of the said town of Collins had consented to the issue of such bonds, created no absolute right or obligation. It asserts, confers, and invests a mere power or authority in such commissioners to subscribe for the stock of said railroad company in behalf of the town, and to issue such-bonds in payment for such stock. Until such subscription is made, no contract on the part of the town is made — no legal liability has been created. (Aspinwall v. The Commissioners of Daviess County, 22 How. [U. S.], 374; Covington, and Lexington R. R. Co. v. Kenton County, 12 B. Monroe [Ky.], 144.)

Municipal corporations cannot be compelled by the legislature or the courts, to contract a debt in favor of any private enterprise of' business or profit, or in aid of any private corporation. The legislature may confer authority in such cases, and there its power ends. If the authority is exercised in conformity with the statute, then a contract may be, and will be created, which can be enforced in the courts like the ordinary contracts of individuals.

This view, asserted in the case of Bailey v. The City of New York (3 Hill, 531); Clarke v. The City of Rochester (24 Barb., 446); Town of Duanesburgh v. Jenkins (46 id., 294); and The People v. Batchellor (53 N. Y., 140), and in many others, is ■ now of less consecpience since the adoption of the constitutional amendments in this State, which went into effect on the first day of January of the present year. The amendment relating to this subject is as follows : “ No county, city, town or village shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in or bonds of any association or corporation, nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes.” This provision of the Constitution distinctly forbids the creation of any new debt by the town' of Collins, by subscription to the stock of the said railroad company, or otherwise to become the owner of such stock directly or indirectly. The power of the railroad commissioners of said town to subscribe for such stock, or to issue the bonds of said town, is taken away by such provision, and the town bonding acts, under which such proceedings were had before the county judge, are, in legal effect, repealed and annulled, except so far as relates to existing contracts, actually made and in force when this amendment went into effect. These remain valid, as the obligation -of existing contracts could not be impaired by subsequent acts of legislation.

It follows from this view, that this motion must be denied, and it is denied, with costs.

Present — Smith, P. J., Gilbert and MerwiN, JJ. ■

Motion denied, with ten dollars costs.


source: Caselaw Access Project

author: E. DaewiN SMITH, P. J.:

license: Public Domain

text:
    KATE L. ROSS, Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence of co-employes — liability of pvimvpal for — Co-emvployes — who are.

    The plaintiff was an employe of the defendant in the capacity of surveyor, and was injured through the negligence of the conductor on one of defendant’s trains, on which he was being transported, free of charge, from Medina, where he lived, to Jordan, where he.was at work. Held (1), that there being no . evidence that the conductor was an incompetent person for his place, or of neglect on defendant’s part in employing him, the plaintiff could not recover against the defendant damages for his injuries; (2), that the plaintiff was a co-employe with the conductor, within the rule exempting the master from responsibility to one servant for injury sustained by him arising from the negligence of another.
    The doctrine held in some States, that a railroad company is liable to a servant for an injury occasioned by the negligence of another servant when the duties of the latter, in connection with which the injury happened, were not in common nor in the same department with those of the injured servant, and when the negligence of the injured servant did not contribute to the injury, rejected.
    Appeal from a judgment against defendant, and from an order of the Orleans County Special Term, denying defendant’s motion for a new trial.
    The action was brought to recover, under the statute, for the negligent killing of Coral E. Ross, the husband of Kate L. Ross, the plaintiff, who sued as administratrix, etc., of the deceased.
    It is alleged in the complaint, that at and prior to the killing, the said Coral E. Ross “ was in the employ of the defendant as an assistant surveyor or chainman ; and that it was not his business to assist in the running of the defendant’s trains, the care of defendant’s tracks, depots or cars.”
    The complaint further alleged, “ that on the 10th day of March, 1873, while engaged in said business and acting under defendant’s instructions, and in its care, he (the deceased), at the village of Lyons, attempted to get upon a passenger car of the defendant for the purpose of traveling eastward to the village of Jordan, thence to prosecute the business of an assistant surveyor, aforesaid,” and - that the defendant ran a locomotive engine, with a train of cars thereto attached, against said Coral E. Ross and killed him.
    The defendant’s answer charges that said killing was caused by the negligence of said Coral E. Ross, and denies that his death was by reason of any fault, omission of duty or negligence whatever, on the part of the defendant, its agents or servants, except the fault or carelessness of the said Coral E. Ross.
    At the close of the evidence on the part of the plaintiff, the defendant’s counsel moved for a nonsuit on the grounds:
    First. That there was no negligence on the part of the defendant, as shown by the testimony given on behalf of the plaintiff, and that the negligence of the plaintiff’s intestate contributed to this injury.
    Second. That if there was any negligence causing this injury,'it was the negligence of a co-employe of plaintiff’s intestate, and that therefore this action could not be maintained.
    The motion was denied by the court, and an exception duly 'taken.
    The motion for a nonsuit was renewed at the close of all the testimony, upon the same grounds as before stated, and upon the 'further ground, “that no liability in law is established against this defendant.” This motion was also denied, to which decision the defendant’s counsel duly excepted.
    A motion for a new trial, on a case and exceptions, was made by the defendant at Special Term, and was denied.

      A. P. Laming, for the appellant.
    The rule is well settled that the master is not liable to his servant for injuries sustained by the latter while in his employment through the negligence of a co-employe engaged in the same general business. (Wright v. JY. Y. Q. R. R. Go., 25 N. Y., 562; Laning v. N. Y. G. R. R. Go., 49 id., 521, at 528.) ít must be presumed that the deceased understood the nature of the services which he contracted to perform, and the situation and character of the work or thing about which such services were to be rendered, and the hazards incident to the work which he was to do in the manner in which it was to be done, and that he contracted with reference thereto, and he will be held to have voluntarily assumed all the risks of the employment.
      (Goon v. The Sy. cmd Utica It. B. (Jo., 6 Barb., 231, at 241; S. O., affirmed, 1 Seld., 492; Sherman v. The Roeh: <md Sy. JB. JB. Go. 17 N. Y., 153, at 156.) To bring a case within the exemption, it is not necessary that the servant injured and the one causing the injury, should be engaged in the same particular work. (Toning v. N. Y. G. B. R. Go., supra ; Wright v. N. Y. G. R. R. Go., supra.) The intestate was there as the employe of the company, and because he was such an eznploye. (18 N. Y., 432, at 434; CriUsha7mon v. Stony Brook R. R. Co., 10 Cush., 228.) The liability of plaintiff’s intestate to receive an injury through the negligence of the persons engaged in operating the road, was a hazard incident to the nature of the engagement into which he entered, and in respect to which he became, so to speak, his own insurer. (Warner v. Erie By., 39 N. Y., 468, 470; Farwell v. Boston cmd Worcester R. R. Go., 4 Mete., 49; Morgcm v. The Yale of JNeath Railway Co., 1 L. R. [Q. B.], 149.) Not only did the nature of the business in which the plaintiff’s intestate .contracted to render services necessarily place him where he, while actually at work, would be in contact with the tracks used for traffic by the company, but he was actually using those tracks and the cars running upon them to get from point to point along the road where the work was to be done, and he will be presumed to have known that the negligence of the company’s employes engaged in running such trains, was one of the risks incident to the business in which he was engaged. (Russell v. The Hudson R. R. R. Co., 17 N. Y., 134; Wharton on Negligence? §§ 229-235; and also a very able article in the Alb. Law Jour., vol. 9, p. 69; Albro v. The Agawam Carnal Go., 6 Cush., 75; Walker v. Southeastern Ry. Go., 2 Hurl. & Colt. [Exch.], 102.) The defendant had a right to require him to ride to his work upon its cars, and in so doing he was not only on his way to his work, but actually engaged in the performance of the duties of his employment, in accordance with this contract; and during the journey he was a servant of the company, engaged in its service, and the relation of passenger and carrier did not exist between them. (Russell v. The Hudson R. R. R. Go., supra, 138; Shear. & Red. on Negligence, § 262.) The defendant was not bound to exercise the same degree of care toward the plaintiff’s intestate as if he had been an ordinary passenger, and the exception to the refusal of the judge to so charge was well talen. A railroad company is only bound to use ordinary care, except in favor of passengers. (Shear. & Red. on Negligence, § 447.) It is only required to use reasonable care in providing for the safety of persons in its employ. (Leaver v. Boston and Maine R. JR., 14 Gray, 466.) But a railroad company is bound to exercise the utmost care and vigilance for the safety of its passengers. (Caldwell v. Murphy, 1 Duer, 233; Shear. & Red. on Negligence, § 497.) And it is held to the same degree of care toward a person who has entered upon its premises in the customary way for the purpose of becoming a passenger upon its road, as if such person was actually in its cars. (Shear. & Red. on Negligence, §§ 262, 275.) The railroad track was there, which is, of itself, a warning of danger, and the deceased was familiar with the exposures, and it was an act of negligence for him to voluntarily approach such place of danger under such circumstances as that he would be unable to look and to stop, if necessary, before stepping upon the railroad track. ( Wilds v. JTF. T. O. JR. R. Go., 24 N. Y., 430; S. 0., 29 id., 315.) It was the duty of the deceased to have looked before lie went upon the track, and the court should have so stated the rule to the jury without the qualification to which the defendant took exceptions. (Hewitt v. The N. Y. O. R. R. Go., 3 Lans., 83; Havens v. Erie Ry. Go., 41 N. Y., 296.) When the verdict is so against the weight of testimony as to show passion, prejudice or inattention to their duty, on the part of the jury, the verdict ought to be set aside. (Cothran v. Gollins, 29 How. Pr., 155, 170.) When the preponderance in the evidence is so great as to lead naturally to the conclusion that injustice has been done, the verdict should be set aside. (The Townsend Manufacturing Go. v. Porter dé Tower, 51 Barb., 346.) In such a case it is the duty of the General Term to set the vei’dict aside and order a new trial. (Smith v. JEt/na Life Ins. Go., 49 N. Y., 211, 216.)

      S. E. FiTkvns, for the respondent.
    'Mr. Ross’ duties were not connected with the duties of the employes operating that railroad in any particular. Those duties were not such that in the performance of them he could exercise any watch and care over such employes. Such watch, if attempted, would not have promoted their vigilance in any particular. (Story on Agency [4th ed.], 604, § 453; 17 N. Y., 134; 5 Am., 49 ; Murray/y. Railroad Oo., 1 McMullen, 257 or 382 ; Perry v. Marsh, 25 Ala., 659 ; Hutchinson v. The Yorlc R. R. Co., L. R, 392; Farwell v. Boston a/nd W. R. R. Go., 4 Mete., 49 ; Hard, Admr., v. Vi. mid G. R. R. Go., 32 Yt., 473 ; Fit&patriehY. Hew Alb. and 8. R. R. Go., 7 Ind., 436 ; Gilmartin v. The Mad. and Ind. R. R. Go., 5 id., 336; Ryan y. G. and N. W. R. R. Go., 60 Ill., 171; 47 id., 110; 52 id., 401; 17 Wall., 553; 30 Ga., 146.) The reason of the rule, when it is applicable, is that each servant engaged in the same department of business, for the safety of all shall be interested in securing a faithful and prudent discharge of duty'by his fellow-servants, so that they will report to the master any delinquencies of those engaged in the pei-formance of duty. But the reason does not exist, nor can it, where one servant is employed in a separate and disconnected branch of the business from that of another servant. (70 Penn. St., 477; Ooo/per v. Mullins, 30 Ga., 146.) The States of Illinois, Indiana, Ohio, Kentucky, Georgia, Alabama, Tennessee and Yermont have, by their courts, established the principles that the master is liable for injury occasioned to his servant: 1st. By reason of furnishing improper machinery, etc. 2d. By reason of employing in conque tent fellow-servants, etc. 3d. By the negligence of a quasi co-servant, when the avocations of the two are so disconnected that mutual watch and care, each over the other, cannot be exercised while they are in the performance of their respective duties. Contributory negligence is a question for the jury, especially where there is any dispute as to the facts. (.Patten v. Philipps, 52 N. Y., 354 ; Alb. Law Jour, of May 1st, 1875, p. 279 ; 37 N. Y., 287 ; 56 id., 302; 53 id., 654.) When a person is at a railroad depot and about to get aboard of the cars, he has a right to presume that the way of ingress to them is free from obstruction. (39 How., 407 ; 38 N. Y., 440.) The cases holding that one about crossing a railroad track must look both ways, have no reference to ingress or egress from ears at passenger depots. (Beisiegel v. The H. Y. C. R. R. Go., 34 N. Y., 622; Ominger v. H. Y. O. and H. R. R. R. Go., 4 Hun, 159; Barton v. H. Y. O. and H. R. R. R. Go., 1 N. Y. S. C.; affirmed in Ct. Apps., 56 N. Y., 124; Ingersoll v. H. Y. O. and H. R. R. R. Go., 6 N. Y. S. C., 416.) Ross was entitled to the same degree of care from the company as any other passenger. (Eaton v. The Del., Lack, and West. E. E. Oo., A.lb. Law Jour, of date, May 25, 1872, p. 335; 107 Mass., 108; 40 Miss., 391; 40 Barb., 546; 11 Ohio St., 417.) The distinctions between slight, ordinary and gross negligence, so far as common carriers are concerned, have been abolished. (Ang. on Carriers, § 23 § 24 N. Y., 181, 196, 200, 201; 107 Mass., 108 ; Alb. Law Jour, of date, Nov. 15, 1873, p. 309-) The intestate was a passenger while going to and from the train. (8 Allen, 227 ; 53 Barb., 629 ; 43 N. Y., 528, 537; 26 id., 49 ; '43 id., 516; 49 id., 263.)
   E. DaewiN SMITH, P. J.:

If the intestate, Ross, had been an ordinary passenger, having paid his fare for his transportation over the defendant’s raiiroad to the place of his destination at the time of the accident, the action and the recovery could, doubtless, be sustained upon the ground of the negligence of the conductor of the train on which he was riding, in starting said train at the precise juncture when the westward bound train arrived at Lyons and was passing between it and the depot. Upon the principles of public policy, as applicable to public carriers, the carriers of passengers are bound to carry safely, so far as human care and foresight will go, all whom they receive into their cars or coaches, and' are responsible for any, even the slightest, negligence. (Stokes v. Saltonstall, 13 Peters, 181; Story on Bailment [8th ed.], § 601.) The negligence in this class of cases includes the neglect of servants and agents; not only of those engaged in the transportation of the passengers, but in all the subsidiary arrangements and incidents connected with the reception, ingress and egress, delivery and control and care of the passenger. But these principles do not apply to the relation of master and servant inter se. The rule which governs this relation is based upon contract simply, implied in law (Farwell v. Boston and W. R. R., 4 Metcalf, 49) where there is no express agreement. The master is doubtless liable for his personal negligence, like all other tort feasors,, upon the rules or principles which govern in actions of tort. (Ryan v. Fowler, 24 N. Y., 410.) But aside from the personal negligence of the master, the servant has no right of action against him, except for the violation of the implied contract, that he will exercise ordinary care not to expose such servant to unreasonable risks or dangers. (Noyes v. Smith, 28 Vermont, 59.) The rule is well stated in Gilman v. Eastern R. R. Cor. (10 Allen, 238), as follows: It is well settled, both in, England and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of their fellow-servants for his negligence in this regard.” The rule is asserted or stated in the same way, in substance, in Warner v. Erie R. R. Co. (39 N. Y., 533), and Wilson v. Merry (1 Scotch Appeals in House of Lords, 326).

The cases in this State in which the servant has been allowed to recover against the master for injuries received from the neglect of some other servant of such master, have been based, generally, upon the non-fulfillment, by the master, of his duty to or contract with the servant, within the rule above stated, or are sustainable, if at all, within the, principle asserted in such rule of liability or duty on the part of the master. Some contrariety of opinion has existed in respect to the question, whether the master could absolve himself from all responsibility to his servants by committing the general charge of his duties as master, as with corporations, to some executive officer or agent. This question is now finally settled in the Court of Appeals, in the case of Laning v. The N. Y. Central Railroad Co. (49 N. Y., 521), and also in the case of Flike v. Boston and Albany Railroad Co. (53 id., 549), where the rule is asserted, that where the master commits such control and management of his affairs, in any particular department, to a general superintendent, or other officer or agent, such officer or agent stands in the place of the master, and his acts or neglects or omissions’ of duty, are those of the master, in respect to the other employes of such common master. But the principle still remains, as Judge AlleN states it in Wright v. The N. Y. Central R. R. Co. (25 N. Y., 564), that personal negligence in such case is the gist of the action as against the master, the negligence of the agent acting for and in the place of the master being the negligence of the master. This principle must be limited, I think, to such acts as men, ordinarily, are competent to discharge, and not to those requiring skill, or artistic or scientific knowledge,

Aside from this question of personal negligence of the master, actual or thus imputed, there is no ground or principle upon which the servant can main tain an action against the master for injuries received from the negleet of any fellow servant or other person.

In Laning v. N. Y. Central R. R. Co. (supra) the action was held to lie to recover for the neglect of the agent of the defendant, intrusted with the duty of employing and discharging subordinate servants, agents or workmen, in retaining a drunken foreman in charge of work, in consequence of which the plaintiff sustained injury. In Chapman v. Erie R. R. Co. (1 N. Y. S. C., 526) a drunken telegraph operator was retained in the employment of defendant by its superintendent with knowledge of his habits.

The plaintiff in this case was an employe of the defendant. He was an engineer and surveyor engaged in work for the defendant, connected with the laying of new tracks on their railroad. His death was caused by the negligence of the conductor on one of the defendant’s trains, upon which he was being transported, free of charge, from Medina, where he lived, to Jordan, where he was employed in such work. Thei’e is no proof or pretense that there was any neglect in the employment of such conductor, or that he was ever supposed, or was in fact, incompetent or unfit for his place. It is difficult to find any basis in the case for the action arising out of any neglect of the defendant, or of any officer or agent acting in its place, in such relation or position as that his acts or neglects were those of the defendant as master. But it is urged on behalf of the plaintiff, that Ross was not a co-employe with the conductor whose negligence caused his death, within the purview of the cases which hold that the master is not responsible for an injury to a fellow-servant occasioned by the negligence of another servant engaged in the same general business. But there is no ground in the case for this exception to the general rule. The plaintiff was as much a co-employe with the said conductor, under the employment of a common master, as was the plaintiff in the case of Boldt v. The N. Y. Central R. R. Co. (18 N. Y., 432) or in Coon v. The Syracuse and Utica R. R. Co. (6 Barb. 231; S. C., 1 Selden, 492).

The rule exempting the master from responsibility to one servant for injury sustained by him from the negligence óf another servant, does not rest or depend upon the intimacy of their relations to each other in their particular work, respectively. It extends to all employes of a common master engaged in carrying on any general work or enterprise. It rests upon the single ground above stated, that the master impliedly contracts with each and every employe to subject them, respectively, to no unreasonable risks from the incornpetency of any of their fellow workmen. If workmen are employed together in any particular branch of labor, and their knowledge of each other, and of the state of the machinery or implements furnished for their common use, is as well known to them as to their master, this fact may furnish another element of exemption from responsibility on the part of the master, if they consent to continue to work with incompetent fellow-servants, or with defective or insufficient implements or machinery. Corporations act necessarily through agents and officers more- or less numerous, among whom there is no inequality of right or duty as respects their common master. They are all fellow-servants, except so far as such master has substituted some particular officer or agent in its place, to perform its duty to its employes. Such officer or agent stands in the place of the corporation as master, and binds it by his acts and neglects.

We are referred to several cases in other States, where a different rule is asserted. In Ryan v. The Chicago and N. W. R. (60 Illinois, 171) and Lake v. The Chicago B. and Q. R. R. Co. (52 id., 401), and Fitzpatrick v. The New Albany R. R. Co. (7 Indiana, 438), and others, it is held that a railroad company is liable to a servant for an injury occasioned by the negligence of another servant, when the duties of the latter, in connection with which the injury happened, were not in common, nor in the same department with those of the injured servant, and where the negligence of the injured servant did not contribute to the injury.

These cases, it seems to me, overlook or mistake the true principle upon which the master’s liability in such cases rests. All the servants of a common master stand to him in the same relation ; they severally undertake to work for the same master, and take and assume, on their part, the risk of all dangers ordinarily incident to their employment. The master, impliedly, undertakes on his part to exercise ordinary care to protect them from all unreasonable risks and dangers pertaining to sucb work, resulting from tbe employment of incompetent servants in other departments of his work. He is only liable for his neglect of ordinary care in this particular; he is not an insurer. If a servant of a railroad corporation divests himself of his character as a servant or fellow-servant, and becomes a paying passenger on the cars of the railroad, he will, doubtless, acquire and possess all the rights of a passenger, or of any third person unconnected with the master.

Upon these views, the plaintiff should have been nonsuited at the Circuit, or the judge should have instructed the jury, as requested, that if there was any negligence on the part of the defendant’s servants or agents, such negligence was the negligence of a co-employe of the plaintiff’s intestate, and therefore she could not recover. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event. .

Present — Smith, P. J., Gilbert and MekwiN, JJ.

Judgment and order reversed, and new trial granted, costs to abide event.


author: E. DabwiN Smith, P. J.:

text:
    SAMUEL WILLIAMSON, Respondent, v. S. AMANDA DODGE, Appellant.

      Mcmried woman — when liable on promissory note.

    An action can be maintained against a married woman possessed of a separate estate, on a promissory note, given for a sewing machine purchased by her on’ her own account, her husband being present at the time of the purchase, and refusing to purchase it or have any thing to do with it, and she promising at the time to pay it.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action is upon a promissory note, given by the defendant for a sewing machine. The note is as follows :
    “ $60.00 “ Gbeat Yalley, March 25,1873.
    “ One year from date, for value received, I promise to pay to L. 0. Miller, or bearer, sixty dollars with use.
    (Signed.) “S, AMANDA DODGE,”

      The defendant at the time of giving the" note was a married woman, living with her husband on a farm owned by him. She had a separate estate, consisting of timber land. The husband, she testified, supported and provided for the family. The note was given at the house of the defendant’s husband, and in his presence, and that of the family and of the plaintiff. The sewing machine was purchased, she testified, to do the sewing in the family, which consisted of herself, husband and two daughters. She never had carried on any separate business. The plaintiff testified that the defendant made the contract for the machine, and her husband said she must pay for it, in her presence when the note was given. The case was submitted to the jury, who found for the plaintiff.

      S. S. Spring, for the appellant.

      A. Ward, for the respondent.
   E. DabwiN Smith, P. J.:

The question presented to us upon this appeal, arises upon the defendant’s exception to tjie proposition in the charge of the judge to the jury, as follows: “But if the defendant made the purchase in her own name, and took the title to herself for her own use and management, and to be kept as part of her separate estate, to be held separate and distinct from the estate of her husband, free from his control and management, then she is liable upon her promise to pay for the same, which in this case is contained in the note.” To this proposition the defendant’s counsel duly excepted, insisting that there was no sufficient evidence on which the proposition could be founded. The verdict of the jury for the plaintiff affirmed this proposition upon the facts, and as the case comes here upon appeal from the judgment only, we cannot review the evidence, and can only consider the question of law raised or involved in this exception.

The action is.upon a promissory note. This constitutes the contract between the parties. The defense of coverture, being interposed by the defendant’s answer, and proved prima facie, avoids the note, as a contract invalid at common law. But this inference of the law may be repelled by proof, and the consideration of the note shown. The defendant, having a separate estate, might bind the same by an express contract for that purpose, as held in Yale v. Dederer (18 N. Y., 265, and 22 id., 450), and the Corn Exchange Insurance Company v. Babcock (42 id., 613). This note is no such contract. But it is also held in Maxon v. Scott (55 N. Y., 250), and in Kelty v. Long (4 N. Y. S. C., 164), that an oral contract, expressly-charging the separate estate, is valid.

This sewing machine was purchased by the defendant herself. She made the contract for it, and on her own account, and upon the credit of her separate estate, and she expressly agreed personally to pay for it, her husband refusing at the time to purchase it or have any thing to do with it. The title to it passed to her, and it became part of her separate estate. She testified at the trial that “she owned it yet.” The finding of the jury affirmed these facts, and it warrants the j udgment, within the cases of Maxon v. Scott, and Kelty v. Long (supra).

The judgment should be affirmed.

Present — -Smith,P. J., GtlbeRt and MeewiN, JJ.

Judgment affirmed.


text:
    ORSON COLLINS, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Contributory negligente — in ease of injuries to property.

    A railroad company has a right to use fuel in ordinary use for the purposes to which it puts it, and it is not guilty of negligence in so doing, unless such fuel is of a dangerous or hazardous quality.
    Where one’s property is exposed to risk or injury from or by reason of its location, as where it is situated in a position of constant exposure to fire, on the side of a railroad, the owner must use such care as prudence would dictate in view of the unavoidable perils to which it is exposed.
    The plaintiff was accustomed to stable his horses in a barn situated within about two feet of the fence beside defendant’s road; the bedding and manure of the horses were thrown out of a window in the barn near the track, and allowed to accumulate during a hot, dry season, from the spring until July twenty-fifth, on which day it was set on fire by a spark from one of defendant’s locomotives. Held, that the evidence of contributory negligence on the part of the plaintiff was sufficient to require the question to be submitted to the jury.

      Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order of Special Term denying a motion for a new trial, made upon a case and exceptions. The plaintiff was accustomed to stable his horses in a barn situated within about two feet of the fence beside defendant’s road; the bedding and manure of the horses were thrown out of a window in the barn near the track, and allowed to accumulate during a hot, dry season, from the spring until July twenty-fifth, on which day it was set on fire by a spark from one of defendant’s locomotives.

      Jewries M. Willett, for the appellant.

      J. II. White, for the respondent.
   E. DabwiN Smith, P. J.:

The Circuit j udge, having said in his charge to the jury, that if one -kind of fuel was more dangerous than another, if the defendant could obtain it in the market, it was their duty to see that they used a proper kind of coal, was requested by the defendant, at the close of his charge, to charge the jury that if the engine was furnished with the proper appliances to prevent the escape of sparks, and they were kept in order, the defendant was not required to use the very best quality of fuel that could be obtained. The Circuit judge in response to such request said: “I have not said that they were bound to use the best quality. I said if the jury was satisfied that one kind was less dangerous than another, and they could obtain it in the market, they should use the fuel that was less dangerous.” The counsel for the defendant duly excepted to this charge and refusal, and further asked the court to charge the jury, that the defendant was not liable for using an inferior quality of fuel, unless it was of a known dangerous and hazardous character, and the Circuit judge replied: “I so charge.” The objection to the charge, as originally made, and as contained in the response to the first request, I think is obviated by this final charge on this point. It should be regarded, as it is, a modification of the original charge, and of the answer to such request. The. defendant had the clear right to use the fuel in ordinary use, whether it was wood or coal, and no charge of negligence could be predicated of tbe use of such fuel, or any kind of fuel, unless sucb fuel was known to be of a dangerous and hazardous quality. The judge in effect charged on this point finally, as the defendant’s counsel requested and virtually assumed in such request the rule of law to be. The counsel for the defendant also asked the court to charge the jury, that if the plaintiff was negligent, and such negligence contributed to the injury, he could not recover. The Circuit judge said, in response to this request, that he would charge that there was no evidence that the plaintiff was negligent. ITe charged that there was no evidence that he was using this property in such a way as to bar him from recovering, if the defendant was negligent. The defendant’s counsel excepted to this charge and refusal, and then asked the court to charge, that if the plaintiff placed dry and combustible material outside of his barn, and allowed it to remain in an exposed situation, knowing that he thereby increased the liability of fire taking from sparks escaping from passing engines, then the jury may find that he was negligent in that respect, and if such negligence contributed to the injury he cannot recover.” The court refused so to charge, and the defendant’s counsel duly excepted.

It seems to me quite clear that the learned judge erred in refusing to charge as requested in respect to both of said requests, and that both these exceptions are well taken. There certainly was evidence proper for the consideration of the jury, on the questions whether the plaintiff was not guilty of great neglect in collecting and leaving combustible materials exposed to fire close by the defendant’s railroad. He testified himself, that the weather at the time of the fire (July 25, 1873), was dry, very dry, and the season had been dry; that his barn stood within about two feet of the railroad fence on the north side of the road; that he had been keeping his horses in this barn a year or more; that his horses stood in the. south-west corner of the barn, and the barn was on the northeast side of the railroad track. While keeping his horses in this barn, he threw out his straw on the west side, out of a window. The pile of straw and manure was about eight or ten feet from the south-west corner of the barn, and had been accumulating there ever since spring. It was the accumulated bedding from the horses. There was also hay in the barn. The straw had become dry, and there was dry and refuse stuff under the barn, which had been there for some time. It appears that a spark from a locomotive fell upon this straw, and the same took fire immediately. The fire was discovered within five minutes after the train passed. There certainly was some evidence for the consideration of the jury in respect to the negligence of the plaintiff. In these cases of negligence, the situation and condition of the persons "and property affected, are always proper and necessary parts of the evidence. Negligence is not an abstract, but a relative and mixed, fact or inference, to be deduced from the various elements and circumstances attending all accidents and injuries resulting from misfeasance of some party, and when the question goes to the jury, they are entitled, and are bound, to look at all the surrounding circumstances of the case in forming their conclusion that one party or the other, or both, are guilty of negligence. The refusal of the learned judge at the Circuit to charge as requested in respect to the plaintiff’s negligence, was doubtless based upon the assumption or opinion that the same rule, in respect to contributory negligence on the part of the plaintiff, did not apply to cases where the injury was done to property, that applied in cases where the injury was to the person. It is doubtless true that the location of a man’s building near a railroad, or some other place where it is exposed to danger from fire, cannot be alleged as a matter of negligence, and if it be so located, it would be no excuse as against trespassers or wrong-doers, as held in Cook v. The Transportation Compamy (1 Denio, 100). But I think the rule is well settled, that one whose property is exposed to risk or injury from or by reason of its location, as where it is situated in a position of constant exposure to fire on the side of a railroad, must use such care as prudence would dictate in view of the unavoidable perils to which it is subject. What shall constitute such negligence in this class of cases as to preclude a plaintiff from a recovery on the ground that his own negligence contributed to the injury, is a question for the jury when it arises. In the case of Cook v. The Transportation Company (supra), Judge Bbabdley calls it culpable negligence. In Ross v. Boston and Worcester R. R. Co. (6 Allen, 92), it was said: “ That as the case stood before the jury, it was proper to be submitted to practical men having all the facts before them.” In Smith v. H. and St. Joe. R. R. Co. (37 Missouri, 287), it is said that it was a question for the jury, whether there was any negligence on the part of the plaintiff which materially contributed to the damages. The same rule is asserted in The Illinois Cent. R. R. Co. v. Nuse (57 Ill., 78); and in The Ohio and Miss. R. R. Co. v. Shufelt (47 id., 497), and- in the case of Fero v. Buffalo and State Line R. R. Co. (22 N. Y., 210). The question of the plaintiff’s negligence, in exposing his building to take fire from the sparks emitted from a locomotive, by leaving open the door of an unfinished building, which was used as a shop for joiners employed in said building, where shavings were lying about upon the floor which were ignited by such sparks, was left by the Circuit judge to the jury, in which he charged, that “ the plaintiff was bound to use such care in protecting his premises, as a man of ordinary prudence would have employed under the circumstances, and if, through his neglect, or that of his employes, his house was consumed, or if such neglect on his part concurred with negligence on the part of the defendant in producing the result, the plaintiff could not recover.” This charge was approved by the Court of Appeals in this case, and of the submission of the question to the jury.

For the refusal of the Circuit judge to submit this question to the jury as requested, I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Present — Smith, P. J., Gilbert and Merwin, JJ.

Judgment and order reversed, and new trial granted, costs to abide event.


author: E. ÜARWIN Smith, P. J.:

text:
    FANNY A. COLLINS, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — when railroad com/pamy liable for fires occasioned by sparhs — Payment of insurance on property — cannot be proved in mitigation of damages.

    The fact that property in the vicinity of a railroad is consumed by fire originating from sparks emitted from a passing locomotive, does not necessarily imply that the railroad company has been guilty of negligence.

      Where, upon tlie trial of this action, brought to recover damages sustained by a fire occasioned by a spark emitted from the smoke-stack of one of defendant’s locomotives, evidence was given tending to show that the engine was of the first-class, fitted with the most approved kind of spark arrester in use, and that it was in good order on the day of the fire, and that the escape of sparks from engines when in motion cannot be wholly prevented: held, that it was error in the court to refuse to charge that unless there was some defect in the smokestack or spark arrester from which the sparks escaped, the defendant was not liable.
    In an action to recover the value of property destroyed by a fire occasioned by the negligence of the defendant, the fact that the property was insured and that the insurance company has paid the loss, cannot be given in evidence in mitigation of damages.

      Merrick v. Brainard (34 N. Y., 208) followed.
    Appeal from an order of the Special Term, denying a motion for a new trial made upon a ease and exceptions. ■
    The 'action was brought to recover the value of a barn destroyed by a fire lighted by a spark from one of defendant’s engines.

      Jas. M. Willett, for the defendant.

      J. H. White, for the respondent.
   E. ÜARWIN Smith, P. J.:

The defendants, being authorized by the legislature to operate their railroad by steam power (chap. 140, § 28 of the general railroad act of 18S0, p. 223), have consequently a lawful right to use fire and water for the purpose of creating steam. They can be liable for such use of fire only upon the ground of negligence. They are doubtless bound in using fire for the said purpose, to use it in a prudent manner, and with the utmost care, and are liable for the neglect of such care, to any person injured by such neglect. The law on this point was, I think, properly stated to the jury in the charge of the learned judge who tried this cause at the Circuit; and he held correctly also, that this question of negligence belonged to the jury. The only question reviewable, I think, upon the case, arose upon the exceptions taken to the charge of the judge, and to refusals to charge as requested.

The plaintiff’s barn was unquestionably consumed by fire originating from sparks emitted from the defendants’ locomotive. But I think this fact did not necessarily imply that ’ the defendants were guilty of negligence, and that the defendants’ request to the Circuit judge so to charge should have been complied with. (Wharton on Negligence, § 869; Sheldon v. Hudson R. R. R. Co., 29 Barb., 227; S. C., 4 Kern., 224.) Notwithstanding the fact that sparks were emitted from the engine, which caused the fire, there was evidence in the cause tending to show that the smoke-stack of the said engine and the spark-arrester thereon, were in good order at the time of the fire. In respect to such evidence, the counsel for the defendants requested the court to charge the jury, that unless they should find that there was some defect in the smoke-stack or spark-arrester, from which the sparks escaped which burned the building, then there was no evidence in the case upon which they could find that the defendants were guilty of negligence which contributed to the accident. The judge said he thought in his charge he had covered the whole subject, and he hardly thought he was called upon to parcel out the case into separate fragments and say what one fragment amounted to, and what another, and further observed, that unless there was ■some amount of care that was required in running this engine — unless from that negligence the accident occurred — the company was not liable.

The counsel for the defendants then stated to the court that his request was, that unless the jury found the engine was defective when the sparks escaped, the defendants were not liable. The judge then said in reply, that if the smoke-stack and spark-arrester were so that the sparks could not get out, and that was the only place he had heard suggested, of course they were not liable. This response hardly met the point of the request. The counsel was entitled to have his request answered explicitly by the court. The point of the request was, that if the engine was not defective, was in proper order as such engines are constructed and in use, as complete and perfect as they are made, the company was not liable, although sparks might, to some extent, or in some degree, have escaped from it. It was in proof that the engine was a first-class engine, fitted with the most approved kind of spark-arrester in use, and that sparks do escape from all engines more or less when in motion, and when in all respects in good order, and that no means have yet been discovered or devised to prevent such escape ; and there was proof that this engine was frequently inspected, and was in good order on the day of the fire. The evidence upon this point was sufficient, I think, to call upon the judge to answer distinctly the request to charge, that if said engine was not defective when the sparks escaped, the defendants were not liable. There was no other way or course suggested for the escape of the sparks, except the smoke-stack, and if this was in perfect order, and in as good condition to prevent the escape of sparks as could be made, or were made and in use, the defendants had done all their duty, and could not be held guilty of negligence.

The defendants are not responsible for accidents caused by fire in the use of their locomotives, if they use all due and proper care and caution to prevent such fires. (Rood, v. The N. Y. and Erie R. R. Co., 18 Barb., 80.) They are entitled to run their locomotives at all times, and in all weather, and in all states of the weather, to fulfill their duty and obligations to the traveling public. The plaintiff lived near the rairoad, and was bound to know that such road was largely used by engines propelled by steam, and that there was constant danger from fire from sparks from the locomotives, and was bound to take due precautions on her part, . not to expose her property to danger by allowing any combustible matter to be collected and remain thereon, in dangerous proximity to said road.

The offer to show, in mitigation of damages, that the plaintiff had duly protected herself from loss by insurance to the amount of $200, and had received the insurance money, was made and overruled at the Circuit, and the defendants’ counsel excepted. I should have thought this evidence admissible, as held by Lord Campbell in his charge to the jury, contained in a note to the case of Pym, Administratrix, v. The Great Northern R. R. Co. (116 English Com. Law, 401), if it were an open question, but I think the case of Merrick v. Brainard (38 Barb., 574, affirmed in the Court of Appeals, in 34 N. Y., 208), requires us to hold otherwise. I cannot conceive upon what principles a party is entitled to recover in damages a greater amount than sufficient to fully indemnify him for his loss, except where he is entitled to recover punitive damages for a willful wrong. • Railroad companies are held, and should be, by the courts, to the strictest responsibilities in such case, and required to use the greatest care to guard against accidents, but when they have done so, and injuries occur, they are damnum absque im/juria.

Negligence in this class of eases, as in all others, is-not to be presumed, but must be clearly proved. (Wharton on Negligence, §§ 869, 870, 872.)

There should therefore be a new trial, with costs to abide the event.

Present —Smith, P. J., Gilbert and Merwin, JJ.

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


author: E. DarwiN SMith, P. J.: MeewiN, J.

text:
    JAMES H. CRAWFORD, Appellant, v. LILLIE G. DOX and others, Respondents.

      Assignment <fi equitable title to properiy — Bank stock — rights of bona fide purchaser of —when unM prevail over equities of third persons — rights of a donee.

    Ann Ward, being entitled to certain bank stock upon the death oí her mother, executed an instrument whereby she assigned the same to her two sons, reserving to herself the right to collect the dividends thereon during her natural life, but notin any way to diminish the capital. Upon the death of her mother the stock was transferred on the books of the hank to Ann Ward. Subsequently, the defendant Dolger, in ignorance of the assignment, and in good faith, purchased a portion of the stock from the said Ward, paying her the par value thereof, the proceeds of the sale being applied by the said Ward to purchase a house for the defendant Dox, an adopted daughter.
    Upon the death of Ann Ward, this action was brought by the plaintiff, one of her sons, to compel the defendant Folger to retransfer the stock, upon payment of what he had paid therefor' and interest thereon, and to compel the defendant Dox to transfer to him the house purchased with the proceeds arising from the sale of the stock. Held (1), that as the equity of the defendant Folger was equal to that of the plaintiff, and as he had also the legal title, the action could not be maintained as to him (Merwin, J., dissenting); (2), that as the defendant Dox was not a bona fide purchaser for value, the plaintiff, having the prior equity, was entitled to succeed.
    Appeal from a judgment in favor of tbe defendants, entered on the report of a referee. The action was brought to rtecover 122 shares of stock in the Commercial Bank of Albany, from the defendant Chas. J. Folger, on payment to him of the full amount paid by him, with semi-annual interest, less the dividends received by him; and' also to recover the money thus paid by defendant Folger for said stock, or the avails thereof, from the defendant Lillie G-. Dox, she being the donee of the same. The plaintiff claimed that he and his brother, who was a defendant, were the joint owners of the stock.
    The plaintiff and his brother Stephen were the only children of Ann Crawford, afterward Ann Ward, since deceased. Ann Crawford was one of the three children and legatees of one Job Gould, who died prior to April 30th, 1846, seized of a large personal estate, including bank stock in various banks in Albany city, and, among others, in “ The Commercial Bank of Albany.’’ On the 30th-of April, 1846, the widow and all the heirs at law and legatees of said Job Goirld entered into an agreement in writing, providing that the widow, Mary Gould, should have the use of the estate during her life, and at her death it should be equally divided between the three children.
    On the 27th day of September, 1847, Ann Crawford, mother of plaintiff, in view of her approaching marriage with Jabez Ward (whom she married a few days afterward), made, executed and delivered to the plaintiff two instruments in writing. By the first of these she transferred to the plaintiff and his brother Stephen, their heirs, etc., “All my right, title and interest in and to all my portion or part of bank stock, being the bank stock I shall be entitled to receive on the death of Mary Gould,” etc. Afterward, but on the same day, the second was ■ executed; by which she transferred to them “ all the personal property, choses in action and in possession, of whatever description, of which I am in any manner possessed in law or equity, and also all my right, title and interest to or in any personal property or chose in action, and in particular my portion of bank stock that, on the death of Mary Gould, my mother, becomes mine, either by descent or otherwise.” Both recited a consideration of one dollar and divers other considerations. Both contained the following provisions: “Provided nevertheless, and this agreement is on this express reservation, that I, the said Ann Crawford,' shall, during my natural life, enjoy, if I choose, the use of the said property, or the dividends of the said stock, not in any manner diminishing the capital; and I do hereby authorize the said Stephen and James to take all lawful means, in my name or otherwise, to collect and reduce to their possession all said property.” And both were delivered to the plaintiff at the same time.
    November 14th, 1857, Mary Gould died. November 20th, 1857, the three children settled up and divided the estate, and the administrator, James S. Gould, assigned to Ann Ward, formerly Crawford, mother of plaintiff, 172 shares of stock in the Commercial Bank of Albany, as her share of the estate, and on the 1st day of December, 1857, those shares were duly transferred to the said Ann Ward, on the bank books. Neither the administrator nor the-bank had any knowledge or notice of the execution of the assignments until after Mrs. Ward’s death. Mrs. Ward continued to draw the dividends on said stock until she sold the same, as stated hereinafter. Jabez Ward died in 1849; after that Mrs. Ward adopted the defendant Lillie G. Dox, as a daughter, and Lillie lived with her in that relation until her (Mrs. Ward’s) death.
    About May 21, 1864, Ann Ward died at Geneva, New York.
    On the 3d of September, 1863, 100 shares of the stock were sold by Mrs. Ward, at par, to the defendant Folger, and the proceeds arising from the sale were used to purchase a lot of about four acres, which was conveyed to the defendant Lillie G. Dox, and was held by her at the time of the commencement of this action.
    The referee found that at the time of the sale of the stock, neither Folger nor Lillie G. Dox had any notice or knowledge of the claim of the sons under the two assignments; nor had they any such knowledge until after the death of the said Ann Ward, but that each of them believed that the stock and the proceeds arising from its sale were her sole and absolute property.
    Ann Ward made a will, by which she gave to her adopted daughter, Lillie G. Dox, all her property except one or two articles. The will was duly proven, and the property all paid over and delivered to the defendant Lillie G. Dox, by the executor, before he had any notice of the claim of plaintiff in this, action. The property thus paid and delivered over included a bond and mortgage of $400, part of moneys received of the defendant Fol-ger, for stock. There was a question, under the evidence, as to the value of the stock at the time of its purchase by Folger.

      Angus McDonald, for the appellant.

      F. 0. Mason, for the respondent Folger.

      E. G. Lcvpham, for the respondent Dox.
   E. DarwiN SMith, P. J.:

The two bills of sale executed by Mrs. Crawford to the plaintiff and his brother, on the 27th of September, 1847, should be construed together. They were executed at the same time for the same general object, to give to her sons her personal property, to take effect in possession at her decease. They are deeds of gift, and I think clearly valid, as such, to vest in the plaintiff and his brother an equitable interest in, or title to the personal property of Mrs. Crawford, whatever it might be, which remained to her at the time of her death, subject to the reservation to her of the use of the same during her life. (Harris v. Clark, 3 N. Y., 111; Fulton v. Fulton, 48 Barb., 582.)

At the time of the execution of said papers, she had nothing more than an equitable interest in such personal property. The title to it was in her brother, as administrator of her father’s estate, and it so remained until the decease of her mother; she then took and became possessed of the legal title to -172 shares of the stock of the Commercial Bank of Albany, by the proper transfer of the same to her upon the books of the bank; and she then received the usual certificate of stock issued by the bank, as evidence of her title to such stock. When she, through her agent, proposed to sell said stock to Mr. Folger, it appeared that the same was standing in her name upon the transfer books of the bank, and that she had also the usual and every proper indicia of title to said stock, and was entitled to receive, and had received, the dividends thereon, from the time of its transfer to her, on the 1st day of December, 1857, the date of said certificate, till the transfer to Folger, of 100 shares, on the 4th of September, 1863, and of twenty-two shares, on the twenty-ninth of the same month; and was thus invested in her own name and apparent right with the absolute legal title to said stock.

The purchase of said stock of her by Folger, at the time aforesaid, at par, upon and with the payment therefor, was a purchase in good faith, and gave him the absolute legal title thereto. If it were not so, there could be no safety in the purchase of bank stock. If the purchase from the apparent owner, having all the indicia of title thereto, and in receipt of the dividends thereon, could be affected by any latent or dormant equity between the vendor and any other third party, it would be difficult for a man to purchase such property and be sure that he was getting to it a valid title. Folger has, certainly, an equity equal .to that of the plaintiff, and he has a valid, legal title. This in equity gives him the superior right, and he cannot be divested of such title. (1 Story’s Jurisprudence, § 64, c.; Moore v. The Metropolitan National Bank, 55 N. Y., 41; McNeil v. The Tenth National Bank, 46 id., 325; Calais Steamboat Co. v. Fan Felt, 2 Black., 374; Grimstone v. Carter, 3 Paige, 437.)

But this principle, that a party with an equal equity, who has clothed himself with the legal title, has the superior right, does not apply to the defendant Lillie Gr. Dox; she is not a bona fide purchaser ; she is a mere grantee of the real estate, conveyed to her by the direction and request of Mrs. Ward, without consideration. The $1,800 paid for such real estate, was a mere gift to said Lillie Gr. Dox, by Mrs. Ward. Between persons having equal equities, the prior equity must prevail. Mrs. Crawford had made a valid deed of gift to the plaintiff and his brother in 1847; she retained possession for them, or in subordination to their rights, during her life, in the character of a trustee of the title, taking herself the income of the property. She could not convey the property to another who had notice of the plaintiff’s rights, so as to pass a valid title.

So far as relates to the defendants, Lillie G-. Dox and her husband, I think they are liable to account for the proceeds of the sale of the stock to Folger, so far as the same were invested in specific property, remaining in their possession at the time of the commencement of this suit, or at the time of any earlier demand therefor, or to a conveyance of such property. The house and lot conveyed to Lillie Gr. Dox stands in the place of the stock sold to Folger. This property she is bound to relinquish to the plaintiff and bis brother, or to pay the amount of money invested therein. This conclusion follows inevitably when we regard the' two bills of sale as deeds of gift. In such cases the title passes immediately upon the delivery of the deed to the grantee. It could not be an escrow in his hands. No delivery of the property was contemplated till the death of Mrs. Crawford. The deed gave the right to the grantees to claim and enforce the immediate possession of the property, in fact, upon the death of Mrs. Crawford. The possession was in the mean time retained by Mrs. Crawford, in accordance with the terms of the deed, as she reserved the use and income of the property during her life. Upon the delivery of the deeds, she became a trustee of the title for the donee (Parish v. Stone, 14 Pickering, 205), and could do nothing to defeat such title, except to sell the property, for a valuable consideration, to a Toonafide purchaser, without notice of the trust.

It follows from these views, that the judgment should be affirmed as against the defendant Folger, with costs, and that it should be reversed as against the other defendants, Lillie G. Dox, William H. Dox and William H. Dox, Jr.; and that a new trial be granted as against these defendants, with costs to abide the event.

MeewiN, J.

(dissenting):

I dissent from so much of the conclusions of my brethren, as affirms the judgment as to defendant Folger. He bought for $2,000 what was in fact worth $3,000. This is such an inadequacy of consideration, as will permit the plaintiff, one of the cestui que trust, to come in and redeem, on payment of what was paid or advanced thereon. In no other way can he be protected against the negligence of the trustee in not finding out what the stock was worth. The defendant should not, certainly, without consideration, receive the fruits of such negligence. If he is made whole, that is all equity will give him. He has paid only part of the value, and is entitled to protection only so far. (Peabody v. Fenton, 3 Barb. Ch., 462; Stalker v. McDonald, 6 Hill, 96; Pickett v. Barron, 29 Barb., 508.)

Present — Smith, P. J., Gilbert and Merwust, JJ.

Ordered in accordance with opinion of Smith, P. J.


author: GILBERT, J. :

text:
    BERNHARD A. WENDE, Appellant, v. PATRICK W. BRADLEY and another, Respondents.

      Short summons under section 38 of non-imprisonment act (4 Edm. St., 473) — affidavit for — uihat must contain — when residence of plaintiff must he stated in.

    A justice of tlie peace has no jurisdiction to issue a short summons, under section 33 of the non-imprisonment act of 1831 (4 Edm. St., 473), without the affidavit required by section 19 of article 3, title 4, chapter 3, part 3 of the Revised Statutes.
    The affidavit should state that the defendant is a non-resident; that the cause of action arose upon contract, and facts showing, that the defendant cannot be arrested under the provisions of the non-imprisonment act. It need not state that the plaintiff is a resident. If he is a resident, the justice has jurisdiction to issue the summons without taking security, even though the fact has not been proved before he issues the summons.
    It is sufficient for the plaintiff to state in his affidavit that the cause of action arose upon contract, express or implied. It is not necessary that he should go into the particulars of his demand.
    Appeal from a judgment of tbe County Court of Erie county, reversing a judgment in favor of tbe plaintiff, recovered in a justice’s court.
    The action was begun by a short summons, as tbe defendants were non-residents of Erie county. On the return day of the summons, tbe defendant, before answering, raised various objections to tbe sufficiency of the affidavit on which tbe summons had been issued, which were overruled by the justice. The affidavit was as follows:
    ERIE CouNTY, SS. .'
    Bernhard R. Wende, being duly sworn, says that he has, as he verily believes, a good cause of action against P. W. Bradley and C. A. Canfield, contractors on the New York Central and Hudson river railroad, which cause of action arose upon contract, express or implied ; and deponent further says, that said cause of action is not for the recovery of money collected by them as a public officer, nor for official misconduct, or neglect of duty by them, nor for damages for misconduct, or neglect in any professional employment by them; but according to the provisions of sections 30 and 31 of chapter 300 of Laws of 1831, no warrant can issue against the said P. W. Bradley and C. A. Canfield; that the said Bradley resides in the county of Ontario, and that the said C. A. Canfield resides in the county of Steuben, and that they are non-residents of the county of Erie; and the said Bernhard A. Wende prays a short summons against the said Bradley and C. A. Canfield.
    BERNHARD A. WENDE.
    Sworn before me this 30th) day of June, 1874. j
    WM. RearioK,

      Justice of the Peace.

      Oeo. W. Cothran, for the appellant.

      C. F. Tabor, for the respondents.
   GILBERT, J. :

This court, in 1852, decided that the effect of section 43 of the non-impi’isonment act of 1831, was to continue in force section 19 of article 2, title 4, chapter 2, part 3, of the Revised Statutes (2 R. S., 229); and that the affidavit required by that section is a prerequisite of the jurisdiction of a justice of the peace to issue a short summons, pursuant to section 33 of said act of 1831. (Waters v. Whitamore, 13 Barb., 634.) The rule of law stated in that case has been followed in numerous instances since, and the correctness of it assumed by elementary writers on the subject. (2 Wait’s Law and Pr., 80.) Whatever our own views of the subject may be, it is too late to reopen the discussion of it. The principle stare decisis ought, on grounds of public policy, to be conclusive.

The requirement of section 19 of the Revised Statutes cited, is, that the affidavit shall “ state the facts and circumstances within the applicant’s knowledge, showing the grounds of his application, whereby-the justice may the better judge of the necessity and propriety of issuing ” the short summons.

The county judge reversed the judgment in this case upon two grounds, namely: First, that the affidavit did not show the residence of the plaintiff; and, second, that it stated no facts in reference to the plaintiff’s claim, so that the justice could determine whether his action was upon contract or not. These objections are extremely technical, and we must treat them accordingly. With respect to the first, it is sufficient to say that the residence of the .plaintiff does not enter into the grounds of the application for a short summons; nor does the statute require any preliminary proof in respect to the residence of the plaintiff, except when the. application is made by a non-resident plaintiff. When a resident plaintiff applies for a short summons against a non-resident defendant, all that the affidavit need contain, is a statement that the defendant is a non-resident, that the cause of action arose upon contract, and facts showing that the defendant cannot be arrested under the provisions of the non-imprisonment act. It is, no doubt, proper to state in the affidavit, that the plaintiff is a resident of the county, so that the justice may have evidence that it is not necessary for him to withhold the summons until security be given. But the legislature has not seen fit to make -the exercise of the jurisdiction of the justice, in the case of a resident plaintiff, dependent upon preliminary proof that lie is a resident, and it is not the province of the court to do so. If the justice issues a short summons in favor of a non-resident plaintiff, without receiving security, he acts without jurisdiction, and renders himself liable for the illegal act; and it will be a valid objection to the proceedings, in any stage thereof, when the fact appears. But if the plaintiff be in fact a resident, the justice has jurisdiction, although that fact has not been proved before he issues the short summons.

In other respects we think the affidavit contains all that the statute requires. It states particularly that the cause of action arose upon contract, express or implied. That is a statement of a fact, and not of a legal conclusion. It shows that the defendant is not sued for a tort; in which case the statute requires that he shall be proceeded against by .warrant, but upon a contract. That accomplishes the object of the statute. And it would, as it seems to us, be quite superfluous to go into the particulars of the demand to enable the justice to decide that it sprang from a contract. Whether the demand arose upon a contract or a tort, is a fact within the plaintiff’s knowledge, and can be proved by him directly, without the aid of a judicial determination. The affidavit also states that the cause of action is not for either of the causes mentioned in subdivisions 2, 3 or Í, of section 30 of the non-imprisonment act. Whether it was or not, was also a fact which was within the plaintiff’s knowledge, and might be proved by him directly. It is neither necessary nor proper to go through the circumlocution of stating in detail how the cause of action arose, in order to prove that it was not for either of the causes mentioned in the subdivisions of section 30, referred to. Upon the merits we are satisfied that no error was committed by the justice.

For these reasons the judgment of the County Court must be reversed.

Present — SMITH, P. J., Gilbert and M'erwiN, JJ.

Judgment reversed. •


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    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. CORNELIUS M. HORTON and another, Appellants.

      Nuisance — dbstn’uction of navigable waters — injunction to restrain — when granted,.

    Any obstruction which renders the navigation of a port less convenient or safe than it formerly was, is a nuisance.
    If it be a hindrance to navigation, it is no defense that the public inconvenience is counter-balanced by the benefit afforded by it.

    Whether or not any given encroachment upon a public or private right is a nuisance, is a question of fact.
    Where the mere presence in a ship canal of a floating elevafor is not of itself an obstruction to navigation, but it only becomes such when used in a particular manner, a court of equity will not direct the removal of the elevator, but simply forbid its use in such unlawful manner.
    Where, in an action brought to restrain defendants from obstructing the ship canal in the city of Buffalo, it appeared that the harbor masters of the port had full power to locate and change the stations of the vessels therein, that they had never directed the defendants to change the location of their elevator, and there was no evidence that the harbor masters had ever neglected to perform their duty in- reference thereto : held, that as ample power had been vested in the harbor mastex-s to redress summarily any obstruction on the part of the defendants, a court of equity would not interfere by injunction.
    Appeal from a j ndgment in favor of the plaintiff, entered npon the trial of this action by the court, without a jury.

      The action was brought by the people of the State to enjoin the defendants from obstructing the City Ship Canal, in the city of Buffalo, by a floating elevator.
    The justice before whom the ease was tried found, among other facts: “That the defendants are in the legal and rightful possession of a parcel of land lying on the north and river side of said canal and abutting thereon, with about 200 feet frontage thereon ;■ * * * that the defendants own in their own right and have possession of, manage, use, and control, a structure commonly called a floating elevator, and the same is used and kept by the said defendants in the waters of Buffalo harbor. That the same is about ninety-six feet long, twenty-four feet wide, and draws between two and three feet of water, and is capable at all times, during the season of navigation, of being moved to and from. all places in the said harbor; that it possesses no motive power of its own, and when moved from place to place, the same is done by steam tugs, or otherwise; that there are placed thereon and made part thereof, machinery and fixtures suitable for the purpose of transferring cargoes of grain in bulk from one floating vessel to another floating vessel, with safety, cheapness and dispatch. That during the season of navigation, for a year preceding the trial of this action, the said defendants have for the most of the time had and kept the said structure moored in the said canal at a point opposite the said premises so occupied by them, and when not in use made fast to the wharf on said premises.
    “ That the said' structure is well adapted to the use of relieving vessels loaded with grain and aground in the harbor of Buffalo, and has capacity to receive on board a portion of a cargo, and to be used as a lighter, and is occasionally and as often as called upon used by defendants for such purpose in Buffalo harbor at all places where vessels are aground.
    “That the business carried on by the said defendants in said canal by means pf said structure in transferring cargoes of grain in bulk from one vessel to another vessel in the mode and manner aforesaid, when the vessel from which the cargo is transferred is not stranded, aground or disabled, is an unnecessary, unreasonable, and unlawful use of the said canal and harbor of Buffalo, and is an unnecessary, unreasonable and unlawful obstruction to the trade and commerce carried on in the said canal and in the harbor of Buffalo.”
    And he found, as a conclusion of law: “ That the people of the State are entitled to the order and judgment of this court, perpetually enjoining and restraining the defendants from using the said structure or floating elevator in the Oity Ship Canal, as a means and in the business of loading and unloading vessels freighted with grain in bulk, when the vessel, being loaded or unloaded, is not aground or otherwise disabled, and is capable of being navigated. That the judgment herein is in no wise to prevent or interfere with the use by the defendants of said structure or elevator in lightering or unloading vessels or crafts in the said City Ship Canal that are aground or otherwise disabled, nor from using the same in business and for purposes not herein expressly enjoined and forbidden.”

      L. L. Lewis, for the appellants.
    This action ought not to be sustained for the reason that an adequate remedy exists under the charter and ordinances of the city of Buffalo to abate and prevent all obstructions and nuisances in the city ship canal or harbor of said city. (1 Story Eq. Jur., § 641; Mayne v. Griswold, 3 Sandf., 463; 9 N. T. Leg. Obs., 25 ; Grippm v. Hudson, 13 N. Y., 161; Voorhees v. Howard, 4 Keyes, 371; Attorney-General ex rel. Gloucester City v. Brown, 24 N. J. Eq., 89 ; C. E. Green, 9 ; Bowe v. The Granite Bridge Go., 21 Pick., 347; M. and E. B. B. Go. v. Prudden, 5 C. E. Green, 532; High on Injunctions, § 521 ; 3 Daniells’ Ch. Pr., 1740.) There is not a particle of proof in the case that the public have suffered any annoyance or inconvenience from the use of the defendants’ floating machinery, but, on the contrary, the proof is abundant that no cause of complaint has existed. Every encroachment is not a nuisance. (Peekham v. Henderson, 27 Barb., 207; Griffith v. McCullum, 46 id., 561; Howa/rd v. Bobbins, 1 Bans., 63.)

      G. A. Bcroggs, for the respondents.
    This was an unlawful obstruction of a public highway and a public nuisance. (Hart v. The Mayor, etc., of Albany, 9 Wend., 571, 584; Paris et al.v. The Way or, etc.-, of N. T., 14 N. Y., 506.) A systematic and continued encroachment on a highway, though for the purposes of carrying on a lawful business, is unjustifiable. {The People v. Cunningham,, 1 Denio, 524, 530-533; Hart v. The Mayor, etc., of Albany, 9 Wend., 584; The King v. Pussell, 6 East, 427; Rex v. Jones, 3 Camp., 230; Davis v. jTAe Mayor of H. Y., 14 N. T., 524.) Where an individual, for his. own private purposes, without title to the soil and without authority, encroaches upon and obstructs a navigable water-way and harbor, it is a public nuisance. {Delaware and Hudson Canal Co. v. Lawrence, 9 S. C. [2 Hun], 163, 180.)

       See Delaware and Hudson Canal Company v. Lawrence, 2 Hun, 163. — [Rep.

   GILBERT, J. :

Individuals have no right to make that several to themselves, •which ought to be common to the public. For this reason an exclusive appropriation of any part of the ship canal in Buffalo for any purpose whatever, would be an illegal encroachment thereon. It might not be, technically speaking, a purpresture, for that would involve an encroachment on the bed of the ship canal. Such an act, too, might or might not amount to a public nuisance. Every encroachment is not a public nuisance. To make it such, damage to the public right of navigation or other public right, must be shown to exist. (Willard Eq. [Potter’s ed.], 399, et seq.; Kerr on Inj., 395.) Lord Hale, in the “De jure Haris,” (11), says : It is not every building below the high-water mark, nor every building below the low-water mark, that is ipso facto in law a nuisance, for that would destroy all the quays in England, and prevent the erection of new ones, for the king cannot license a common nuisance. It is not ipso facto a nuisance unless in fact it be a.damage to the port or navigation, and whether it be a nuisance or not, is questio facti, and to be determined by a jury upon evidence, and not questio yurisP The distinction between the two classes of wrongs is thus pointed out, in Attorney-General v. Richards (2 Anst., 606): Where thejus pubUcum is violated, it is a nuisance, and it frequently happens that a nuisance in a port is accompanied with a purpresture, or encroachment on the soil of the crown.” And Chancellor Kent gives the same definition (Atty.-Gen. v. Utica Ins. Co., 2 Johns. Ch., 381.) It is not important in this case however, to deal with definitions, for if the acts of the defendants, in the use of their elevator, obstructed navigation in the ship canal, they amounted to a nuisance; and in determining the question of obstruction, it is sufficient if it appears that the navigation has been rendered less convenient or less safe than formerly. The public have the right to the free use of the harbor, subject to such regulations as have been established by law, and the right to regulate and control the use of the harbor belongs to the sovereign power. It is the infringement of one or both of these rights that constitutes a nuisance in a harbor. (Hart v. The Mayor, 9 Wend., 571.) The true question in a case of nuisance in a port is, whether or not a damage occurs to the navigation in the particular locality. If the thing complained of be a hindrance to the navigation, it is no defense, that the public inconvenience is counter-balanced by the benefit to be afforded by it. (Rex v. Ward, 4 A. & E., 386; Reg. v. Betts, 16 Q. B., 1023.) But all the authorities concur in holding, that whether any given encroachment upon a public or private right is a nuisance or not, is a question of fact.

In the case before us the proofs do not show, nor is the fact found, that the elevator of the defendants is, of itself, a nuisance, nor that the use thereof has produced any material obstruction to the free and common use of the ship canal by other vessels. Nor does it appear that any objection to the manner in which the defendants used their elevator, was ever made by those to whom the regulation of the use of the ship canal has been intrusted by law, or that any complaint was ever made by others who used the ship cana], that the defendants’ use of the elevator impeded navigation therein.

The material facts found are, that the elevator is adapted for use at all places in the harbor of Buffalo for the purpose of unloading-vessels that are aground, but that its use has been mostly confined to a particular locality in the ship canal, where the defendants have carried on the business of transferring cargoes of grain from propellers and other water craft to canal boats, and that such latter use is an unnecessary, unreasonable, and unlawful use of the said ship canal and harbor of Buffalo, and is an unnecessary, unreasonable, and unlawful obstruction to the trade and commerce carried on in said ship canal and in the harbor of Buffalo. Hence it is found as a conclusion of law, that the people are entitled to a perpetual injunction restraining the defendants, not merely from using their elevator in the illegal manner stated, bnt from using it in the ship canal, as a means, and in the business of loading and unloading vessels freighted with grain in bulk, when, and in instances where, the vessel being loaded or unloaded is not aground or otherwise disabled, and is capable of being navigated, and judgment was rendered accordingly.

These facts clearly do not show that the mere presence in the ship canal of the floating elevator in question, is an unlawful encroachment thereon. On the contrary, the judgment-under review concedes the right to use it for the purpose of unloading vessels that are aground or otherwise disabled. If it can be used for that purpose, it is difficult to perceive why it may not be used for any other purpose to which it is adapted. It takes up no more space, and produces no other or different effect upon the rights of others who are entitled to participate in the use of the ship canal, whether the vessel to be loaded or unloaded is afloat and seaworthy, or aground and disabled. There is no principle of law that we are aware of, that will justify the discrimination which has been sanctioned, we think inadvertently, by the court below. If the plaintiffs are entitled to any remedy, it should have been limited to a redress of the wrong which the court found the defendants had committed, namely, the use of the elevator in the manner which the court adjudged was unlawful and unreasonable.

With respect to the continued use of the elevator, at a particular locality in the ship canal, it does not appear that it was done under any claim of a right to appropriate a part of the ship canal, exclusively, or with intent to commit a trespass. Putting the most unfavorable construction upon the conduct of the defendants, it amounts to no more than an unwarranted invasion of a public fight, unattended, however, by any material injury, either public or private. An ample remedy for all such grievances has been provided by the police powers on this subject, vested in the common council of the city of Buffalo. That body has power to enact ordinances, empowering the harbor masters to prescribe and regulate the location of all vessels, boats or floats, and to compel them to change their location. It has exercised the power by enacting ordinances which authorize and direct the harbor masters to give such orders and directions as they deem just and proper relative to the location and change of station of every steamboat, or other craft or vessel or float in the harbor of Buffalo, and -which imposes a penalty of twenty-five dollars for every neglect or refusal to comply with such orders or directions. It does not appear that the harbor masters ever directed the defendants to change the location of their elevator, and the court below has found as a fact, that there is no evidence that the harbor masters have at any time refused or neglected to perform their duty in reference to any alleged obstruction on the part of the defendants in said ship canal. Inasmuch, therefore, as the public authorities appear to have acquiesced in the wrong committed by the defendants, and such wrong consists merely of the manner in which they have used their elevator, which the court below has found to be unnecessary, and the wrong can be- effectually remedied by a change of such use, whenever directed by the harbor masters, an exercise of the equitable jurisdiction of the court would seem to be unnecessary, except for the purpose of establishing rights which nobody disputes, or of redressing a technical grievance which has produced no substantial or material injury. The jurisdiction of courts of equity in cases of purpr’es-ture, as well as of public nuisances generally, rests in the necessity of preventing irreparable mischief, or of avoiding vexatious litigation. Although its jurisdiction in such cases is well established, yet it will not be exercised where the object can be as well attained in the ordinary tribunals, or by other means specially provided by law for that purpose. (Atty.-Gen. ex rel. Gloucester v. Brown, 24 N. J. Eq., 89; Coulson v. White, 3 Atk., 21; 2 Eden on Inj., 272.) Ample power has been vested in the harbor masters to redress, summarily, the wrong complained of in this case, and we think enough has not been shown to justify the extraordinary interposition of a court of equity,' and more especially to warrant a' judgment which in effect prohibits, as being illegal, any use of floating elevators in the harbor of Buffalo, except for the purpose of relieving vessels in distress.

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

Ordered accordingly.