author: McAdam, J.

text:
    The Missionary Society of St. Paul, the Apostle, etc., et al., Resp’ts, v. The New York Elevated Railroad Company, et al., App'lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    Damages—Elevated -railway.
    In an action against an elevated company for an injunction and damages, a claim that other land of the plaintiffs in the rear of the abutting premises, which has no appurtenant easement of light, air and access in and over the street in which the road is located, but abuts on the side streets, is benefited by the construction, maintenance and operation of the road and that such benefit should be set off against the fee damage; is untenable.
    Appeal by defendants from judgment entered upon report of referee in favor of plaintiff.

      Davies, Short & Townsend, for app’lts; Edwin M. Felt, for resp’t.
   McAdam, J.

The judgment appealed from restrains the defendants from the further maintenance and operation of their elevated railroad in front of the plaintiffs’ premises unless within a -certain time the defendants pay to the plaintiffs the sum of $14,-700 with interest.

No past damages were awarded, owing to the fact that the plaintiffs’ property for which there was a recovery, consists partly of vacant lots and partly of land covered by a’ church building, which is not adapted for purposes of renting, but for use as a whole. That being so, all objections and exceptions which relate to testimony taken to show rental or past damage, may be considered as outside of this appeal.

The case fails to show that the referee considered noise as an element of damage in determining the fee damage.

The recovery was properly confined to the avenue lots extending from the westerly line of Ninth avenue west 100 feet, and to so much additional land as is actually covered by the church building. The defendants claim that other land of the plaintiffs in the rear of the premises.in controversy, and having no easement of light, air and access in and over Ninth avenue appurtenant to it, but abutting on the side streets, was benefited by the •construction, maintenance and operation of the elevated road on Ninth avenue, and that such benefit should be set off against the fee damage awarded by the judgment appealed from, is untena-. ble.

Upon the whole case we think the judgment is fairly maintained by the evidence, that substantial justice has been done, and that the record discloses no error which' calls for reversal.

The judgments should be affirmed, with, costs.

Sedgwick, O. J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    Margaretha Jung, App’lt, v. John H. Starin, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Vessels—Collision.
    In actions for injuries resulting from the collision of vessels navigating public waters, the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury.
    3. Same.
    No vessel is justified, by a pertinacious adherence to a rule, in colliding with a ship which she might have avoided.
    The action is by the plaintiff to recover $5,000 damages for personal injuries. In consequence of a collision between defendant’s-fleet, in tow of his steamboats Hunt and Titan, and another fleet of two schooners in tow of the tug Unit, belonging to other parties, the plaintiff, who was aboard an excursion barge in defendant’s fleet, was violently thrown down and injured.
    Defendant’s fleet consisted of the steamboat Thomas A. Hunt,, to either side of which was attached a barge; the steamboat being further in tow of the tugboat Titan. As this fleet was going north on the east side of Blackwell’s island, and about to round the northerly point of that island, intending to make for "the shore on the New York side at 86th street, the tug Unit was seen to come up on the westerly side of Blackwell’s island with two schooners in tow.
    The account of the collision furnished by the plaintiff’s witnesses proves that the tugboat Unit, with a barge attached to each side, was proceeding up the East river on the New York side of Blackwell’s island; that the tide was running flood, about six knots an hour; that there was practically no wind, and that she was going under her own steam at the rate of two knots per hour,, making in addition to the tide, a speed of about eight miles an hour by land. When the fleet had arrived at a point about opposite 83d street the tug Titan, of the defendant’s fleet, was seen to-round the point of Blackwell's island, heading for 86th street. When" first seen she gave one whistle, as a signal that she intended to cross the bows of the Unit. To this signal the Unit responded with one whistle, signifying that she understood, and that the' Titan should proceed. At the time the latter blew the whistle the end of her stern was hidden by the point of the island, audit was not apparent to the Unit-party that she had other vessels in tow. Within a few seconds after the answering whistle of the Unit the Titan’s stern with a hawser attached came in view; the Unit thereupon blew alarm whistles and reversed the engines. The Titan continued in her course for about half a minute ; then the hawser between her and =the Hunt was cut, and the latter veered toward the point of thé island and came in collision with the Unit fleet.
    The pilot of the Unit testified that he gave the whistle for the Titan to proceed, for the reason that there was room enough for the latter to pass in safety, and he did not. then know that she had anything in tow. If there had been nothing in tow of the Titan there would have been no collision, for she passed the Unit’s fleet in safety. The trouble came with the tow, for not only had her pilot to take the Titan across, but the Hunt and her barges had to follow wherever she led, taking about four times as long to pass any given point as if the tug had been alone.
    At the conclusion of the evidence the complaint, on motion of the defendant, was dismissed, upon the ground that the collision was caused by the negligence of the Unit in failing to observe the rules of navigation, and that no negligence was shown on the part of the defendant’s fleet. From the judgment entered upon this direction the plaintiff appeals.

      Charles O. Maas and W. V. Goldberg, for app’lt; Goodrich, Deady & Goodrich, for resp’t.
   McAdam, J.

To recover, it was not necessary to prove that the collision was caused by the" sole negligence of the defendant’s fleet; it was sufficient to establish that the plaintiff’s injuries were the result of the joint or concurring negligence of the two fleets which collided. Sher. & Eed. on Neg., § 58; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Phillips v. R. R. Co., 127 id. 657; 38 St. Rep. 675; Mooney v. R. R. Co., 2 City Ct. R. 366; Collins v. Long Island R. R. Co., 46 St. Rep. 652. And to justify the dismissal of the complaint the direction must bear the crucial test that no construction of the evidence or inferences to be drawn from it would warrant a submission of the issue to the jury.

The defendant to sustain his contention relies upon rules of navigation which it is claimed establish his freedom from fault. .He asserts that his fleet had the right of way when the Titan blew the first whistle, and, as the Unit signaled back that the claim was understood and would be respected, that the Titan had a right to proceed. The argument is supplemented by the following statement and citations:.

1. The Unit, having the Titan on her starboard hand, was bound to keep out of her way, under article 18 of the act of Congress, passed March 3, 1885, which reads as follows: “If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on her starboard side should keep out of the way of the other.”

2. The Titan’s fleet had the right of way, and was bound to keep her course, under article 22 of the same act, which is as follows : “Where, by the above rules, one of two ships has to keep out of the way, the other shall keep her course.”

These rules might have been easily followed by the pilot of the Unit if he had seen the Titan and her tow, which was some two hundred feet behind. But Blackwell’s island obstructed the view of the hawser, which could not be seen when the signals were exchanged, and consequently the pilot of the Unit did not know that the Hunt and the two barges, so far behind the Titan, formed part of a tow the latter had. While the Unit had the right to take the South channel (as it is called), and the Titan the North channel (as it is called), the Titan’s pilot must have known that he could only take his tow in safety across the South channel by making known to vessels going northward in that channel and on that flood tide the extent of (what was to them) the invisible tow he had in charge. Part of this danger would have been obviated if the Titan had taken the South channel, as this led directly to the dock at Eighty-sixth street, where her pilot intended to make a landing. The pilot of the Unit did notknow until it was too late to extricate his fleet from the impending danger that the Titan had three vessels in tow ; and the collision which followed was inevitable.

The Titan might have continued her course further beyond the northern extremity of the island, and thus her tow would have been exposed to the view of all northerly going vessels, and a signal claiming the right of way would then have been intelligently understood and followed by them. If this had been done the Unit might have given a different signal or extricated herself by a change of course, and no harm would have followed. As it was, her pilot had no alternative but blow the alarm whistles and reverse the engines; and, with the flood tide running, these which were the only precautionary measures at hand proved inadequate.

The facts presented were sufficient to require the submission of the question of negligence to the jury. To put it mildly, it was matter about which minds might differ, and should not have been disposed of as involving only a question of law for the court.

In actions for injuries resulting from the collision of vessels navigating public waters, the question is one of negligence on the part of those in charge of the respective vessels; and the omission of either or both to conform to legislative enactments is but one of the circumstances to be considered in ascertaining the proximate cause of the injury. Hoffman v. Union Ferry Co., 63 N. Y., at p. 390.

In commenting on the right of way the court, in the case of The Baltimore, 34 Fed. R, 660, said : . “ The right of way is not a right to run into unnecessary collision.” * * * “ The great stake in the lives and property of innocent persons forbids any relaxation of the rule that requires in the face of an impending collision, that each boat shall take such timely and suitable-measures to avert it as are within her power, without reference to the original so-called right of way.”

A blind adherence to the rules of navigation is not required by the rules themselves, and care and diligence must be used in determining whether in a given case they shoxild be strictly pursued. Cooper v. Eastern Transportation Co., 75 N. Y. 116, 119.

Text writers and adjudged cases agree that no vessel is justified by a pertinaceous adherence to a rule for getting into a collision with a ship which she might have avoided. Parsons on Ship, and Adm., 580; Cohen’s Adm. L., 207, 208; Allen v. Mackay, 1 Sprague, 219; The Sunnyside, 91 U. S. R., Blanchard v. N. G. Steamboat Co., 59 N. Y. 292, 299 ; The Aurania, 29 Fed. R. 98, 124; The America, 32 id. 845. Each vessel must take such a course and direction as will be least likely to injure the other, and will be best calculated to avoid a collision; and that vessel which has the greatest facilities for choosing and taking its adopted course, the most facile and available motive power, and consequently the greater control over its own movements, is called upon to give the preference to the other, and yield to it in the choice of routes. This rule is applied to meet the necessities of individual cases resulting from the state of the wind or tide, as well as to the meeting or passing of vessels propelled by steam by those under sail, and the meeting of steamers unincumbered and free, with those incumbered with tows or other hindrances. Blanchard v. Steamboat Co., supra; The Syracuse, 9 Wall, 672.

In proceedings in admiralty brought by the Isle of Pines (one of the tow of the Unit) against the Unit and Titan, to recover damages growing out of this same collision, Judge Brown found on the facts that neither the Unit nor Titan “ kept necessary lookouts or exercised the reasonable precautions which are absolutely necessary to avoid collision in crossing around the upper part of Blackwell’s island in a strong flood tide; ” and under the rule prevailing both ■ vessels were held liable for the damages done.. The plaintiff is entitled to have the opinion of a jury on the facts-as presented here. They may possibly reach a conclusion similar to Judge Brown’s.

In commenting on the facts we have accepted those most favorable to the plaintiff, because the trial judge dismissed the plaintiff’s complaint without calling upon the defendant, to explain or give his version of the collision. Probably upon another trial it-may be made to appear that the captain of the Unit saw or should have seen the hawser attached to the Titan, or that the Titan’s-captain was justified in acting on the belief that the pilot of the Unit did see the hawser at the time the Unit gave the responsive whistle to go ahead, and that the Titan was therefore blameless in proceeding on her course; but these questions, appropriate for a jury, can only be considered after both sides have concluded their proofs.

For these reasons, which make it unnecessary to consider the exceptions taken to the exclusion of expert testimony, the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, 0. J., concurs.


text:
    Catharine Moy, as Administratrix, etc., App’lt, v. The Ocean Steamship Company of Savannah, Resp't.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Master and servant—Fellow.
    Where the appliance is in charge of a fellow-workman of the decedent, and there is no proof of any imperfection therein, or of anjdhing inherently dangerous in the mode of doing the work, the negligence, if any, is that of & fellow servant, for whose, conduct the ma-ster is not liable.
    2. Same—Safe place.
    A safe place in which to work means a place in which the permanent, constructions have been made with reasonable safety.

      Appeal by plaintiff from judgment entered on dismissal of the complaint at trial term.

      L. Ruser, for app’lt; Hoadley, Lauterbach & Johnson, for resp’t; H. L. Scheuerman, of counsel.
   McAdam, J.

The action is under the statute to recover damages for the death of one Patrick Moy, an employe of the defendant.

It appears that the decedent was on August 13,1894, at work in one of the lower holds of the steamship City of Augusta, and that a barrel which was being lowered into the hold of the vessel fell from the sling in which it was held and struck him while he, for some unexplained reason, was crossing directly under the open hatchway. (

The hatchway had been opened to unload the vessel, and the orders were to stand clear of the hatches until the hooks were sent down, when the barrels were taken charge of by the -workmen. There was no evidence of any imperfection in the sling, or anything inherently dangerous in the mode of doing the work. The sling was in charge'of a fellow-workman of the decedent, and if there was any negligence it was that of the fellow-servant, for whose conduct the defendant is not liable.

There can be no claim that Moy did not have a reasonably safe place in which to work; for that means a place in which the permanent constructions have been made with reasonable safety. Brick v. Rochester, etc., R. R. Co., 98 N. Y. 211; Harley v. B. C. M. Co., 142 id. 31; 58 St. Rep. 437; Mickee v. Wood, 77 Hun, 558 ; 60 St. Rep. 282.

The decedent went over the cargo in the dangerous open hatchwajr, and it nowhere appears that he was’ in a place necessitated by his work. Under the edge of the covering, where it would seem he properly belonged, he would have been perfectly safe.

Under the circumstances there was no proof to fasten negligence upon the defendant, nor to exculpate the decedent from the inference of contributory negligence.

The judgment appealed from must be affirmed, with costs.

Sedgwick, O. J. and Freedman, J., concur.


text:
    The David Stevenson Brewing Company, Resp’t, v. Caspar Iba et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Chattel mortgage—Priority.
    A chattel mortgage, though first filed, is subject to the lien of a prior mortgage, if it was taken for an antecedent debt.
    2. Same—Assignee.
    An assignee, in good faith and for value, of a filed mortgage gets no preference over a prior unfiled mortgage by reason of such -filing, when his assignor cannot claim it.
    Appeal by defendants from judgment directed by the court at equity term.

      Joseph Steiner, for app’lt Iba; A. & C. Steckler, for app’lts Lewis; W. G. McCrea, for resp’t.
   McAdam, J.

This is a suit by the plaintiff to have a chattel mortgage made to it by George J. Sawyer, though subsequently filed, declared prior and superior to one made by him to Caspar Iba and assigned to the defendants Lewis, on the ground that Iba, the assignor, at the time of the execution of the mortgage to him, knew of the existence of the mortgage to the plaintiff, and had agreed that the same should be a prior lien to his; and for damages by reason of the defendant’s conversion of the property covered thereby.

The case presented a conflict of evidence, and the trial judge on evidence sustaining the finding held with the plaintiff on the facts, and as conclusions of law decided that the chattel mortgage given by Sawyer to Iba, although first filed, was subject to the prior lien of the chattel mortgage held by the plaintiff; that Iba took his mortgage for an antecedent debt, except as to the sum of twelve dollars; and that the defendants Lewis, as assignees, took the title of their assignor, and nothing more.

The rule is that an assignee in good faith and for value of a recorded mortgage, gets no preference over a prior unrecorded mortgage by reason of such record, when his assignor could not claim it. Green v. Warwick, 64 N. Y. 220 ; Decker v. Boice, 83 id. 215; Rapps v. Gottlieb, 142 id. 164; 58 St. Rep. 636.

We find no error, and the judgment appealed from must be affirmed, with costs.

Sedgwick, C. J., concurred.


text:
    Newbury H. Post, App’lt, v. Akron Iron Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Landlord and tenant—Holding over.
    It is the duty of the tenant to quit and make full surrender of the premises to the landlord, at the expiration of his term ; if he does not do so, the landlord may treat him either as a trespasser or as tenant for another year.

      2. Same.
    The tenant, in such case, has no election in the matter; the landlord’s election binds him, whatever his intention may have been, and though the landlord knew what his intentions were before the time expired.
    3. Same—Excuse.
    It is no valid excuse for the holding over that the tenant was engaged in removing his goods and consumed no more time in such removal than was necessary for such purpose.

      C. W. West, for app’lt; W. F. Scott & W. F. Upson, for resp’t.
   McAdam, J.

The action is by the plaintiff as landlord to recover from the defendant, as tenant, one quarter’s rent of the store and basement No. 122' Liberty street, under a demise thereof alleged to have been made to the defendant for the term of one year from May 1, 1892, at the rental of $4000, payable quarterly. '

The proof that the parties made the agreement alleged is furnished by the following facts: The tenant’s term under a prior lease expired on May 1, 1892, and. it thereafter held over and continued in possession of the premises, after notice by the landlord that if it remained in possession after May 1, 1892, the rent would be $1000 per annum. The lease which expired in 1892 was made by one Gill as landlord, was for three years and four months from January 1, 1889, at the yearly rent of $1800 payable quarterly, and was assigned by Gill to the plaintiff February 17, 1892, on which day the latter became the owner of the property. The lease from Gill was from January 1, 1889, and according to the presumed intention of the parties expired May 1, 1892, and that day falling on a Sunday the tenant had until twelve o’clock noon on the following day to move from the premises.

The tenant commenced to move on May 2, and continued moving on May 8, when it delivered the key to the plaintiff, who said he would hold the defendant for the rent. There was no acceptance of surrender by the landlord. The defendant left upon the premises a number of fixtures and articles valued at tibont $100, which it said it would abandon to the landlord, but ■which the latter declined to take.

The tenant undertook to show permission from one Cox to remain over after May 2 ; but there is no proof of authority on the part of Cox to bind the plaintiff to any such agreement.

At the conclusion of the case both parties asked for the direction of a verdict. The trial judge directed the jury to find for the defendant, and from the judgment entered on such direction and the order denying motion for a new trial the appeal is taken.

That the acts of the defendant amounted to a wrongful holding over is clear. It was its duty as tenant to quit and make full surrender of the premises to the landlord on May 2 ; not having done so, it became the right of the plaintiff to treat it either as a trespasser or as tenant for another year, and he elected the latter course. Haynes v. Aldrich, 133 N. Y. 287; 45 St. Rep. 243; Schuyler v. Smith, 51 N. Y., 309 ; Shanahan v. Shanahan, 55 Sup’r Ct. 339 ; 14 St. Rep. 733 ; Adams v. City of Cohoes, 127 N. Y., 175, 182; 38 St. Rep. 678 ; Frank v. N. Y., L. E. & W. R. R. Co., 122 N. Y. 197, 218; 33 St. Rep. 235.

The tenant holding over has no election in the matter. It is not for him to say whether he will occupy the relation of a wrongdoer or of a tenant; but the right of election belongs exclusively to the landlord, and his election binds the tenant, whatever the' tenant’s intention may have been, and although the landlord knew what his intentions were before the time expired. 1 Wood L. & T., 2nd ed., 33.

In Witt v. The Mayor, 28 Sup’r R., 261, the court said: “It is no valid excuse for the holding over to say that the defendants were engaged in removing their goods, and consumed no more time in such removal than was necessary for that purpose. Without enlarging upon the evils to which incoming tenants, as well as landlords, would be subjected by a rule of law that should permit such holding over, it is enough to say that no such rule exists in this state : but, on the contrary, the statute provides, in effect, that, in case a tenant shall continue in possession a single hour after the expiration of his term, the landlord may eject him and his goods by a prompt and summary proceeding.”

In Haynes v. Aldrich, supra, the court said,: “The act of the defendant .in holding over has given the plaintiff a legal right to treat him as a tenant, and it is not in his power to throw off that character, however onerous it may be.” “The appellant does not deny the rule, but seeks to qualify it so as to mean that it is only where the tenant holds over voluntarily, and for his own convenience, that the landlord’s right arises, and that it does not so arise when the tenant holds over involuntarily, not for his own convenience, but because he cannpt help it. I am adverse to any such qualification. It would introduce an uncertainty into a rule whose chief value lies in its certainty. The consequent confusion would be very great. -Excuses would always be forthcoming, and their sufficiency be subject to the doubtful conclusions of a jury, and no lessor would ever know when he could safely promise possession to a new tenant.”

The result follows that the plaintiff was entitled to a verdict, and at the increased rent stated in the notice. Despard v. Walbridge, 15 N. Y. 374; Mack v. Burt, 5 Hun, 28.

The judgment and order must therefore be reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, O. J., and Freedman, J., concur.


text:
    Emma L. Jacquelin et al., App’lts, v. The Manhattan Railway Company et al., Resp’ts. Sarah E. Youmans, Resp’t, v. Same, App’lt.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Judgment—Construction.
    The words in an interlocutory judgment, in an action against an elevated railway lor an injunction and damages, “that the past damages be ascertained in such manner as the court should direct,” assume the exercise of its lawful powers, and cannot be interpreted irrespective of the limitations imposed by law.
    2. Trial—Elevated railway.
    Where, in an action against an elevated railway for an injunction and damages, the answer admits that substantial damages have been sustained, and the court has directed that the question of past damages be reserved for determination after the easements should have been acquired, in such manner as the court should then direct, the appointment of a referee to complete the trial is unwarranted.
    Appeal from orders made at special term.

      Davies, Short & Townsend, for app’lts; Foster & Speir, for resp’ts.
   McAdam, J.

These are equity suits by abutting owners for injunctive relief, fee and past damages on account of the operation of the defendants’ elevated railway.

When the causes were called for trial- in October, 1893, the de fendants admitted that substantial damages had been sustained by the plaintiffs; whereupon the court directed interlocutory judgment that the defendants be enjoined, unless within six months they caused the easements appurtenant to the plaintiffs’ premises to be condemndd and acquired according to law. The court further directed that the question of past damages be reserved for determination after the easements should have been acquired, in such manner as th.e court should then direct.

Condemnation proceedings were instituted and prosecuted to awards, which the defendants paid.

In October, 1894, plaintiffs moved to restore the causes to the equity calendar for.trial as to past damages. The judge presiding at special term thereupon directed a reference, upon the ground that as the interlocutory judgment entered upon consent provided “that the past damages be determined in such manner as the court should direct,” it carried with it the right to. refer that question to a referee. We think this view erroneous. The words “in such manner as the court may direct” assume the exercise of its lawful powers, and cannot be interpreted irrespective of the limitations. imposed by law. Express authority must therefore be found for the reference or its direction cannot be sustained.

The admission that substantial damages had been sustained is equivalent to a finding to that effect after proof of title—nothing more. The Code contains no warrant for the appointment of a referee to complete the trial. Doyle v. Met. E. R. R. Co., 136 N Y. 505; 49 St. Rep. 746.

It follows that the orders appealed from must be reversed, with costs.

Sedgwick, C. J., and Freedman, J., concurred.


text:
    John Shields, Resp’t, v. John N. Robins, App’lt.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Negligence—Presumption.
    Where no contractual relations exist between the parties, it is incumbent upon one who alleges a failure in the performance of duty to prove facts from which an inference of negligence may be properly drawn.

      2. Same.
    The mere fact that an accident occurred, which caused the injury, is not generally, of itself, sufficient to authorize an inference of negligence.
    3. Same.
    In all cases where the maxim res ipso loquitur has been applied, the injury was made referable to some specific cause and effect, in respect to which the defendant was under an obligation which presumptively had been neglected. .
    The action is by a workman against his employer to recover damages for personal injuries.
    The defendant occupied the building Ro. 32 Washington street, this'city, for making repairs to steamships, etc. There was a blacksmith shop on the top floor of the building, which was of brick, six stories high; the floors and roof were of timber. An elevator was on the premises, and was run from the first floor to the top, a distance of about fifty-four feet. There was no siding to the elevator.
    In the discharge of his duty the plaintiff on July 8, 1893, was going up in the elevator, when something fell upon his head and stunned him, doing him serious, injury. There is no proof showing what struck him, or where it came from; but that it was some falling object is indisputable.
    The jury found a verdict in favor of plaintiff for $1500, and from the judgment entered thereon and the order denying motion for a new trial this appeal is taken.

      W. S. Cogswell, for app’lt; Wheeler, Cortis & Godkin, for resp’t.
   McAdam, J.

The rule is universal, and has no exceptions or limitations, that no one is liable for injuries to the person or property of another without some fault or negligence on his part. Where no contractual relations exist between the parties the presumption is, until the contrary is shown, that every man has performed his duty, and it is incumbent upon one who alleges a failure in this respect to prove facts from which an inference of negligence may be properly drawn, and mere proof that the accident happened will not authorize such an inference. Loeber v. Roberts, 60 Supr Ct. 202 ; 42 St. Rep. 687. No contractual relation exists here except that of master and servant.

A master’s liability to servants for injuries sustained in the course of their employment is based upon the personal negligence of the employer ; and the evidence must establish personal fault on his part, or what is equivalent thereto, to justify a verdict; and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. Cahill v. Hilton, 106 N. Y. 512; Wood on M. & S., 2d ed., sections 845, 346.

Neglect which renders the master liable must be established either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn. It cannot be supported by mere conjecture or surmise, but must be made referable by the proof to some specific cause and effect for which the master is liable. The mere fact that an accident occurred which caused the injury, is not generally, of itself, sufficient to authorize an inference of negligence against a defendant. Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957.

In Wall v. Jones, 45 St. Rep! 687, it appeared that the plaintiff’s intestate, while in the employ of the defendant, working on an unfinished building, was struck by a falling brick and killed. The court said : “ The difficulty with the plaintiff’s case is that there is no evidence whatever from whence the brick which fell and killed the plaintiff’s intestate came.” * * * There is nothing to show that the falling of the brick was caused by negligence upon the part of the defendants. Without this proof there was no evidence upon which the jury could find a verdict in favor of plaintiff.”

In Evans v. Vogt & Brothers Manufacturing Co., 5 Misc. 330 ; 55 St. Rep. 212, it appeared that the plaintiff’s son, in defendant’s employ, while passing on a ladder from one floor to another in an unfinished building, was struck by something falling through the hatchway; and the court said: “ There is an entire lack of evidence as to how the substance which struck plaintiff’s son came to fall, or who was responsible for its falling. Certainly there is no proof that it was due to the negligence of the-defendant or any of its servants, and in the absence of such proof there was nothing on which to base a verdict in favor of the plaintiff.”

The maxim res ipso loquitur, as applied in Mullen v. St John, 57 N. Y. 567, and other cases cited by the respondent, does not reach the point involved here. In the-case named a building fell into the street; and the court said (p. 572): “ The mind, necessarily, seeks for a cause for the fall. That- is, apparently, the bad condition of the structure.”

If the mind seeks for a cause for the fall of the object which struck the plaintiff, the search is in vain. There is no evidence that there was anything out of repair about the building or the machinery, or that anything was going on by the master’s direction which might reasonably lead to the falling complained of. The injury may have resulted from the negligent act "of a stranger or fellow-workman, for whose conduct the defendant would not be liable; and it will, not do to hold that unless the defendant satisfactorily establishes that the accident was not caused by any neglect of his, the inference must follow that it was his fault.

At times the peculiar circumstances attending accidents may be of such an unusual character as to call upon the defendant for some explanation. But such cases upon examination will be found to rest upon their own peculiarities, and not to extend-so far as to comprehend one like the present, wherein the ¡plaintiff claims that the mere fact of his injury entitles him to a verdict, because the defendant failed to prove that, he was not answerable for it.

In Volkmar v. Manhattan Railway Co., 134 N. Y. 420; 47 St. Rep. 631, the court says : “ It has been held that where a building adjoining a street falls into the street, in the absence of explanatory circumstances negligence-will be presumed, and the burden is placed upon the owner of showing the use of ordinary care; that where a plaintiff was passing on a highway under a railroad bridge when a brick fell from one of the pilasters upon which an iron girder of the bridge rested, striking him upon the shoulder, causing injury, negligence would be presumed; that where a barrel rolled out of the- window of a warehouse onto a street, injuring a person passing, negligence would be presumed; that where a person, while walking along the street in front of a building, was struck by a falling chisel, the presumption of negligence is sufficient to call for an explanation; that- where plaintiff was injured while, walking on the sidewalk of a street immediately under the defendant’s railroad by being struck with a heavy piece of metal which fell from one of the defendant’s cars passing above, that from the nature of the accident negligence6 might be inferred, etc.”

In the case above cited a bolt fell on the head of the plaintiff, who was riding in- a wagon underneath the defendant’s elevated structure, and the action was to recover damages for the injuries. The plaintiff proved that the bolt in question passed through the guard rail and stringer of the railroad, and the iron plate had been held in place by a nut, and that the bolt broke about two inches from the n.ut. It was the duty of the defendant to keep its roadway in such condition that no such accident could occur, or to overcome the implication of negligence by proving that it had by inspection or otherwise exercised every reasonable care to guard against such result. So where the piece of metal fell from one of the defendant’s cars passing above; where the brick forming part of the pilaster supporting the girder of a bridge fell; where the barrel rolled out of the window of the warehouse; where a, pedestrian was struck by a falling chisel—in all these instances the injury was made referable to some specific cause and effect in reference to winch the defendant was under an obligation, which presumptively had been neglected.

But here the building had. been in use for more than twenty years ; no repairs were going on, nor did it appear that the object which struck the plaintiff fell out of the roof or any part of the premises which the defendant was under any obligation to keep in order. So that there was absolutely nothing to which the accident could be attributed ; and the mere fact of its occurrence does not militate against the defendant or charge him with neglect of any duty owing to the plaintiff.

The judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, J., concurs.


text:
    Robert Boyd, Resp’t, v. Malcolm Campbell et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    JUDGMEKT—CORRECTION.
    The court, before which a cause waa tried, has power to make an order, striking out certain findings of fact from those on which it based its decision, upon the ground of their immateriality and to prevent abuse thereof in other litigations, where the adverse party is in no manner injured thereby, either by the imperilment of his judgment or otherwise.
    Appeal by defendants from order entered March 29, 1894, amending the decision and judgment theretofore rendered by the same judge.

      E. W. S. Johnston, for app’lts ; Henry Daily, Jr., for resp’t.
   McAdam, J.

After the trial of the action the trial judge ■signed seventy-two findings of fact, on which he based the conclusion that the complaint of the plaintiff should be dismissed on the merits, with costs. Thereafter the plaintiff moved before the trial judge to strike out the fourteenth and seventeenth findings of fact, on the ground that the same were immaterial to the judgment and were being used to the prejudice of the plaintiff in another litigation. The motion was granted; and the appeal is from the order making said direction.

The rule undoubtedly is, that after the term has expired and the time to appeal from the judgment has gone by, the court is without power to modify its decision or judgment. And it is also true that no judge but the one who tried the cause can at special term change the findings or decision ; the appropriate remedy being by appeal. But in this instance the change was made by direction of the judge who tried the cause, and upon the ground of the immateriality of the findings, and to prevent abuse .thereof in other litigations. The plaintiff having applied for the change, and the defendants being in no manner injured thereby, either by the imperilment of their judgment or otherwise, we think the court had power to make the order. Heath v. N. Y. B. L. B. Co., 84 Hun, 302 ; 65 St. Rep.

It is a known fact that findings are, as a rule, drawn by the attorney for the prevailing party, and, if apparently correct, are signed as of course by the trial judge. They are almost immediately thereafter put into the judgment roll, and if the power to-correct any error or mistake therein does not remain in the trial judge, irreparable damage might be done.

The sole question involved is one of power: for if any discretion existed it was certainly not abused ; and we think the control which the court has over its records and proceedings furnishes plenary power to prevent injustice and to correct all errors and mistakes, even after the adjournment of the term. Code, sec. 723 ; Bohlen v. M. E. R. Co., 121 N. Y. 546 ; 31 St. Rep. 888.

For these reasons the order appealed from must be affirmed, with costs.

Concurred in by Beekman, J.


author: Herrick, J.

text:
    Laura B. Ingalsbe, App’lt, v. Julia Murphy et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Mortgage—Foreclosure—Counterclaim.
    In an action of foreclosure against the devisees of the deceased mortgagor, the plaintiff may be required to account as trustee of the defendants under the mortgagor’s will, and the amount found due upon such accounting may be set off against the amount due on the mortgage.
    Appeal from an interlocutory judgment decreeing that the defendant is entitled to an order of reference to take proof of plaintiff’s accounts as testamentary trustee.

      L. H. Northup, for app’lt; D. J. Sullivan, for resp’t Julia Murphy; A. D. Arnold, for resp’ts guardian ad litem and Howard' Ingalsbe.
   Herrick, J.

In March, 1877, one Lyman L. Ingalsbe, the brother of the plaintiff, executed and delivered to the plaintiff a bond and mortgage for the sum of $3,377. Lyman L. Ingalsbe died July 25, 1880, leaving a last will and testament, wherein he appointed Milo Ingalsbe his executor. At the time of his death he owned the real estate covered by the mortgage in question, and several other pieces of realty in addition. By his last will and testament, all his property, both real and personal, after the payment of his debts and the payment of the dower right of his widow, was given to the plaintiff, in trust for the benefit of his-children until the youngest child should become twenty-one years, of age, when the property should be divided equally between them. The youngest child became twenty-one years of age before the commencement of this action. The trial court found, and there is evidence to sustain such finding, that, after the probate of the will, the plaintiff took possession of the real estate of the said Lyman L. Ingalsbe, as testamentary, trustee under his said last will and .testament, and has remained in possession of such real estate, as such trustee, down to the commencement of this action. There has been no judicial or other settlement of the accounts of the plaintiff as such trustee. There is no evidence to show that, the plaintiff ever took possession of any of the personal property of the testator. The executor named in the will died some time before the commencement of this action, without having settled the estate, and no administrator with the will annexed has ever-been appointed in his place. The defendant Julia Murphy is one of the children of Lyman L. Ingalsbe. The plaintiff commenced this action for the foreclosure of the mortgage in question. The defendant Julia Murphy interposed an answer to the plaintiff’s, complaint, in which she alleged upon information and belief that the bond and mortgage referred to in the complaint had been fully paid and satisfied before the commencement of the action. For a further defense she recites the provisions of her father’s will, wherein the plaintiff is made the guardian of all his children who-were under the age of fourteen years at the time of his death, until they should respectively attain the age of twenty- one years; and also the provision in said will by which all his property, both real and personal, after the payment of his debts and satisfaction of the dower, right of his widow, was conveyed to the plaintiff, in trust for the benefit of his children; and alleges that, after the probate of said will, the plaintiff entered upon the discharge of her duties as such trustee, and took possession as such trustee of the property named in the mortgage and the other property of the testator, and continued in the exclusive possession and control thereof down to the present time; and that during all such time the plaintiff has received large sums of money on account of such trust', and that she has supported herself almost entirely out of such property, and that she has never accounted for the property so received by her, and asks that she be compelled to render an account as such trustee, and that anything found to be due from her from the receipts of such property be charged against the bond and mortgage in question. Upon the trial the court found the amount due for principal and interest upon said mortgage to be $3,674.65, and directed a sale of the premises covered by such mortgage, and that, after deducting the costs and expenses of such sale, the proceeds thereof be paid -to the treasurer of the county of Washington, subject to the, order of the court. The court further held that the defendant Julia Murphy was entitled to an order of reference to take proof of the accounts of Laura B. Ingalsbe as such testamentary trustee, and report the same to the: court, and ordered that all other questions be reserved until the ■coming in of such report. The defendant Julia Murphy was the ■only • defendant who made answer to the plaintiffs complaint, with the exception of the usual formal answer of the guardian ad ■litem, who had been appointed as such for several infants, the descendants of deceased children of Lyman L. Ingalsbe. The plaintiff appeals from that portion of the interlocutory judgment which ■directed the payment of the proceeds of the sale to the treasurer ■of Washington county, and the further provision in said judgment by which a referee was appointed to take and state the accounts of the plaintiff as trustee under the last will and testament of Lyman L. Ingalsbe, and report the same to the court, in order that the court “ may direct the amount in her hands as such testamentary trustee, if any there be, to be applied upon the amount so adjudged due upon the said bond and mortgage.”

The appellant, upon this appeal, claims that the court had no authority or jurisdiction to direct the proceeds of the sale of the mortgaged premises to be deposited with the treasurer of Washington county, and had no authority in this action to compel the plaintiff to render an account as trustee, and no authority to' deduct any moneys found in her possession, or due from her, as .such trustee from the amount of mortgage, and no authority to -withhold from her the amount due upon her mortgage until the settlement of her accounts as trustee. She .claims that that portion of the answer of-the defendant Julia Murphy in which she alleges the possession by the plaintiff as trustee of the testator’s property, •and failure to account for the same, was not properly pleaded ; that it did not constitute a counterclaim to the plaintiff’s cause of action, and was not a proper subject of investigation and trial upon the foreclosure of the mortgage in question. I think these contentions of the appellant are erroneous. The debt secured by the bond and mortgage in question has now become one against the ■estate of the mortgagor, and the only persons interested in that "estate, except creditors thereof, are the children of the mortgagor, .and their descendants. If the plaintiff had been in any form indebted to the testator at the time of his death, the amount of such debt would have been deducted from the amount due upon the bond and mortgage. The payment of this bond and mortgage "subtracts so much from the estate which has been left in trust for the benefit of his children ; and if, since his death, the mortgagee, who is also the guardian of his children, and the trustee of the property, including the mortgaged property that he had left in trust for their benefit, has become, by appropriating or withholding a portion of such trust property, indebted to such children, I can see no good reason in equity why the amount of such indebtedness should not be deducted from the amount of her claim against the estate. An ■action to foreclose a mortgage is an equitable one (Pom. Eq. Jur., ■§§ 112, 171); and it is a familiar maxim “that he who comes into a court of equity must do equity;” and it seems to me simple equity that the plain tiff, before she forces payment of her own claim, which takes so considerable a portion of the property of her wards and cestuis que irustent from them, should deduct therefrom such amounts as she has received while she has been acting as trustee, if any. which have not been otherwise properly expended by her in the couise of executing such trust. To hold to the contrary, and award her payment of the full amount due upon such bond and mortgage, and force her wards to compel an accounting in a separate action, would not only compel unnecessary litigation, circuity of action, and expense, but might also practically result in their being ununable, at the end of such action, to procure from their guardian and trustee payment of the amount found due from her to them. By that time the amount paid over to her upon her mortgage might be expended, dissipated, or by some means placed beyond the process of the court. The plaintiff has come into a court of equity to enforce her rights. All the parties necessary to a determination of all the equities between her and the estate of the testator, and between her and the testator’s children, are now' before the court. The court has jurisdiction of the actions and has jurisdiction of the parties, and it is a familiar rule of equity that when it once obtains jurisdiction of a cause for one purpose it may retain it generally. To do complete justice between the parties, a court of equity will retain the cause for the purpose of affording' all necessary and adequate relief. Lynch v. Met. E. Railroad Co., 129 N. Y. 274-279; 41 St. Rep. 541; Dammert v. Osborn, 140 N. Y. 30 —45, 55 St. Rep. 586. The object of the Code is, as it is the claim of equity, to avoid a multiplicity of actions and useless expense, and to effect a complete determination of all matters which may come into controversy and litigation between the same parties by one action.” Shepard v. Man. Railroad Co., 117 N. Y. 442-450 ; 27 St. Rep. 705; Hunter v. Man. Railroad Co., 141 N. Y. 281-285; 57 St. Rep. 400. The case before us seems to me one peculiarly appropriate for the court to exercise its authority in compelling a settlement of all controversies and questions between parties in one action. And the principle of equity enunicated in the cases cited are singularly applicable to the case of a creditor of an estate, who is at the same time trustee of the same estate, and the guardian of the beneficiaries of that estate, and who, it is alleged, has never rendered any account of her proceedings as such trustee and guardian, but is indebted to her wards for some portion, at least, of the proceeds or fruits of the property she has been in possession of, and managing, presumably, for their benefit. The proceeding of the trial court in this action is in harmony with the principle herein set forth. It “avoids a multiplicity of actions and useless expense,” and “effects a complete determination of all matters which may come into controversy and litigation between the same parties by one action,” and insures a certainty of protection of the rights of the wards of the plaintiff by withholding from her the amount of her claim against the estate until she has settled her accounts with that estate. For these reasons the judgment appealed from should be affirmed, with costs.

All concur.


author: Mayham, P. J.

text:
    George H. Newcomb et al., Resp’ts, v. Augusta G. Lush et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Will—Construction.
    When there is a devise to one person in fee and in case of his death, to-another, the contingency referred to is the death of the first-named devisee during the life-time of the testator; if such devisee survives the testator, he takes an absolute fee.
    Appeal from, a judgment in favor of plaintiffs, entered on the-decision of the court.

      A. V. De Witt (E. Countryman, of counsel), for app’lts; T. F. Hamilton, for resp’ts.
   Mayham, P. J.

The contention on this appeal arises out of. the construction of the will and codicil of Daniel Newcomb, deceased. On the 12th day of June, 1828, the testator made his-will, in and by which he devised to his daughter Harriet Wells all his “ real estate situate in the city of Albany and county of Albany, on Washington street; ” the devise to this daughter also-embraced other lands belonging to testator, and by the will testator also bequeathed to her certain personal property. The-testator, in the other parts of his will, devised and bequeathed, to-various persons therein named, what appears to be a large estate, consisting of both real and personal property, and in and by the-will nominated and appointed three executors, of whom his son Thomas W. Newcomb was one. The will also provides “ that so much of the income of what I give to my two sons, Daniel New-comb and Thomas Newcomb, as shall be necessary to pay all taxes that may be assessed on the two tracts of land I have given-to my sons Charles and Pitt, and to my daughters Sarah and Jane,, and grandson George, shall be applied for that purpose until they shall severally become of age, meaning that Daniel and Thomas; shall bear an equal proportion of said taxes." On the 28th day of October, 1830, the testator made a codicil to his will, which, codicil is as follows :

“ Whereas, I, Daniel Newcomb, of Pittstown, county of Rensselaer, and state of New York, have by my last will and testament, in writing, bearing date the 25th day of June, 1828, given and bequeathed to my daughter Harriet Wells, and to her heirs and assigns, all my real estate situate in the city of Albany, in the county of Albany, on Washington street; also lot No. 18, in the town of Plattsburgh and county Clinton; also thirty shares of turnpike stock, it being in the state of New York: Now, I, the said Daniel Newcomb, being desirous of altering my said will in respect to said legacies, do therefore make this writing, which I will and direct to be annexed as a codicil to my said will, and taken as part thereof, and I do hereby revoke the said legacies by my said will given to Harriet Wells, and give and bequeath the said legacies to my said son Daniel T. Newcomb, his heirs and assigns, except and it is my will that my said son Daniel T. New-comb pay to my said daughter Harriet Wells annually the sum of two hundred dollars in current money, and the yearly income of one-half of my Northern Turnpike stock, during her life, and that my said son Daniel T. Newcomb pay the heirs of Harriet Wells, if she have any, who live at the age of twenty years, at her decease the sum of one thousand dollars. It is my will that all the legacies to my son Daniel T. Newcomb in this writing, and the will to which this is a codicil, should go to his wife, Patience Newcomb, during her life, should she remain a widow after the death of her husband ; and, if my son Daniel T. Newcomb die without heirs, the said legacies, after his widow, are to go to the heirs of Thomas W. Newcomb. It is my will that such and all sums of money I may have at interest may be equally divided between my daughter Harriet Wells and my son Daniel T. Newcomb, and that in lieu of the three hundred dollars given to Lucina Woolman in the will to which this is a codicil, that I give her twelve shares in the Stratton turnpike, and at her decease to her daughters Sarah and Jane, to be divided equally between them.”

After the death of the testator, and on the 26th day of April, 1832, the will was admitted to probate by the surrogate of Rensselaer county, and thereafter, on the 1st day of May, 1836, Daniel T. Newcomb and his wife, Patience Newcomb, executed and •delivered to Henry Gf. Wheaton the lands in the city of Albany referred to in the will, and for which this action is brought, and the defendant Lush, through several mesne conveyances, has succeeded to the rights and interest therein conveyed to Wheaton by Daniel T. Newcomb and Patience Newcomb. Lush and the other defendants were in possession of the premises, claiming to hold through the Wheaton- conveyance, at the time of the commencement of this action. Daniel T. Newcomb, and Patience New-comb, his wife, died, the former in 1870, the latter in 1891, leaving no children or descendants, before the commencement of this action. The principal question in controversy in this appeal is as to whether Daniel T. Newcomb took a fee in this Albany property, if he died without descendants, or whether, in that event, he took only a life estate for himself and wife, which terminated at the death of the survivor of those persons, by virtue of this will. If he took a fee, then the conveyance to Wheaton carried the same to him, and, through the mesne conveyance, to the defendant Lush. If, on the contrary, he took only a life estate, then the conveyance to Wheaton, and all subsequent grantees, carried only the life estate, which ceased with the death of Patience Newcomb, at which time the right of the remainderman would at once attach, carrying with it the right of possession. The wording of the will is inartificial and obscure, and in some respects the intention of the testator is not clearly expressed by the language employed in the instrument. It is quite apparent that the testator used indiscriminately the words “ devise ” and “ bequeath,” as referring alike to the disposition of real and personal estate, both in the will and codicil, and the same is- true of the words “ legacy ” and “ devise.” When, therefore, the testator spoke of the revocation of the “ legacies ” to Harriet in the codicil, he evidently intended to embrace both the devises and bequestsand when, in the same-instrument, he gave the property taken from Harriet to Daniel T.. Newcomb, he intended by the use of the word “bequeath” to-convey both real and personal property, mentioned in that portion, of the codicil, to Daniel T. This construction does not seem tobedisputed by either of the parties, and it seems to be agreed that-Daniel T. took the real and personal property embraced in that provision, and that by the revocation the right of Harriet to the same was divested.

But it is insisted by the plaintiffs that, in default of lineal descendants or heirs of his body, Daniel T. took only a life estate, which terminated with his life, and that of his wife, Patience, at.whose death the fee vested in other children of the testator and. their descendants, who constitute the plaintiffs in this action. On., the other hand, it is contended by the defendants that the codicil-vested the entire title to the Albany property in Daniel T., and-: his heirs and assigns, subject to be defeated only by his death; before the testator, and that, as he survived the testator, his interest, became a vested estate in fee, which, by the conveyance by Delani T. and wife to Wheaton, vested the title in him, and the grantees from him and successors of his interest became and are-the owners in fee of the premises in question. The language of this codicil is, as we have seen, “I give and bequeath the said legacies to my son Daniel T. Newcomb, his heirs and assigns,” etc. The learned trial court held that this devise, as herein stated, was; absolute, but that it was cut down to a life estate by the provision which follows, that, “if my son Daniel die without heirs, the-said legacies, after his widow, are to go to the heirs of Thomas W. Newcomb.” This interpretation can only be maintained by-holding that the word “heirs" in the codicil relates to descendants-—heirs of the body—of the devisee, and that the time of his death, therein mentioned related to a period after the death of the testatator. Neither of these conclusions follows as a necessary result, from the language of the codicil. While, under all circumstances,, a child must be regarded as an heir, it by no means follows that if a person dies without children, or the descendants of children,, he dies-without “heirs," in the legal signification of that word. Webster’s definition of the word “heir” is, “One who receives, inherits, or is entitled to succeed to the possession of, any property after the death of the owner ; one in whom the-title to an estate-vests on the death of the proprietor; one on whom the law bestows-the title or property of another after the death of the testator." Daniel T. Newcomb, while he died without children, cannot be said .to have died without “heirs," in the legal sense of that term. ITe had a brother and sister who survived him, both of whom would answer to the definition of “heirs,” and who, in the absence of any testamentary disposition of his property, take the same as such. Bnt while the testator, by this codicil, did not, in terms, turn this, absolute estate into an estate for life, by making it to depend upon the devisee having heirs of his body, it is insisted that a fair construction of the same, looking after the intent of the testator, leads-to that construction, and in support of that contention we are re-ferred to Kiah v. Grenier, 56 N. Y. 220. In that case the word “heirs” was construed to mean “descendants,” both on account of the wording of the will and the unnatural disposition of the estate if it were construed to mean “heirs at law.” As another indication that the word “heirs” in that will meant “children” of the devisee, the vesting in possession was limited to the time when the-heirs became of age; thus clearly indicating that children of the devisee, and not all who might be his heirs at law, were meant. In the case to which we have referred there was also an illegal suspension of alienation, which differs from the case at bar. Again, we see no good reason in the case at bar for holding that the testator, by the use of the word “heirs,” intended to use that word in the restricted sense contended for by the respondents. If such had been the intent of the testator, it is reasonable to suppose that he would have used the words “descendant,” children,” or “heirs of his body,” each of which would have clearly presented such intention. The devise in fee to Daniel T. can therefore be upheld by giving to the word “heir” its ordinary signification, and by so-doing do no violence to the apparent intention of the testator, especially if we construe the contingency of the death of Daniel T. to relate to a period before the death of the testator.

Did the reference in the will refer to the happening of the contingency before the death of the testator ? The reasonable intendment to be drawn from the devise in fee to Daniel T., which in the same instrument imposed upon him the burden of paying legacies to other beneficiaries in the will, is that the testator intended to do what, in plain language, he did do,—make an absolute devise of the Albany lands. But, when we compare the language-used with the adjudications bearing upon that point, the conclusion seems irresistible that the contingency of the death of Daniel. T., referred to in the codicil, by force of its legal effect related to a period before that of the death of the testator. In re New York, L. & W. N. Co., 105 N. Y. 92; 6 St. Rep. 851, Rafallo, J., in discussing such a provision in a will, uses this language:

“It may be regarded as the settled rule of construction that when there is a devise to one person in fee, and, in case of his death, to arzothez-, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and that, if such devisee survive tho testator, he takes an absolute fee; that the words of contingency do not ci'eate a remainder over, to take effect upon the death at any time of the first taker, nor an executory devise, but are merely substitutionary, and used for the purpose of preventing a lapse in case the devisee first named should not be living at the death of testator.”

This doctrine is in harmony with Vanderzee v. Slingerland, 103 N. Y. 47; and was reiterated in Mead v. Maben, 131 id. 255 ; 43 St. Rep. 167 ; and in Benson v. Corbin, 78 Hun, 204; 60 St. Rep.. 211, Brown, P. J., refers to the doctrine as so completely settled that he uses this language:

“The defendants do not question the general rule that when there is a devise to one in fee, and, in case of his death, to another,, the contingency referred to is a death during the lifetime of the ■ testator; and that this role is uniformly applied to the construction of wills, unless there is some language in the instrument indicating a different intention.”

This aspect of the case at bar does not seem to' have been brought to the attention of the learned trial judge, and in his ■opinion is not discussed by him. There is much in this will to .strengthen and reinforce the contention that the testator, in revoking the devise of these lands made in his original will to his ■daughter Harriet, and devising them in the codicil to Daniel T., intended to devise them to the latter in fee, and that the qualification upon that devise was solely to prevent intestacy and the lapsing of that devise by the death of the devisee in the lifetime of the testator. If, therefore, we are right in our conclusion that this was a devise in fee to Daniel T., charged only with the life estate of his wife, should she survive him, and that the contingency of his death related only to the happening of that event in the lifetime of the testator, then, as he survived the testator, he became the absolute owner of these premises, and by his deed to Wheaton, in which his wife joined, the fee and right of possession at once vested in the grantee, and is by the various mesne conveyances in the defendants, and that Thomas W. Newcomb, the contingent devisee, never acquired any title to these Albany lands under the will of Daniel Newcomb, and that the judgment in favor of his descendants is erroneous, and should be reversed. These views render a further consideration of the case unnecessary. Judgment reversed, and a new trial granted, costs to abide the event.

Putnam, J., concurs. Herrick, J., dissents.


text:
    Jane E. Guy, App’lt, v. Charles A. Langdon et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Gift—Inter vivas—Trustee.
    To constitute a valid gift inter vivas, the donor must part with all dominion and control over the thing given, either to the donee or to another in trust for him.
    3. Same.
    An agreement by which a person agrees to give another all his property, in consideration of which the latter agrees to support him and his wife during their lives and to pay to his daughter a certain sum, together with a delivery of the property in pursuance of such agreement, does not constitute a gift to the daughter, delivered to the promisee for. her.
    Appeal from a judgment dismissing the complaint.

      Charles P. Patterson, for app’lt; J. M. Whitman, for respt’s.
   Mayham, P. J.

The complainant in this action alleges, in substance, that on the 1st day of January, 1865, and from that time until the making of the paroi agreement thereinafter mentioned, Henry D. Langdon, her father, was the owner of real and personal property of the value of over $10,000, and that subsequently, and in the month of January, 1865, Henry D. Langdon entered into an agreement with his son Charles A. Langdon, defendant herein, in and by which, among other things, he agreed to give Charles A. Langdon all of his real and personal property, in consideration of which the defendant Charles A. Langdon agreed to support his father and mother during their respectives lives, and their daughter Lydia so long as she chose to reside at home, and pay to his two sisters, Lydia and this plaintiff, each the sum of $1,000, deducting, however, from the sum so to be paid the plaintiff, the sum of $188.13, before that time advanced to Her by her father. The complainant also alleged that the agreement between her father and the defendant Charles A. Langdon was duly consummated by the defendant’s taking possession of all the real and personal property of his father, and supporting him and his wife during their lives, and that he has ever since the making of the contract, owned, used, and disposed of all the personal property of his father, Henry D. Langdon, and still has the possession and occupancy of the real estate covered by such contract; that Henry D. Langdon died on the 20 th of July, 1892, and His wife died some years previously. The complaint charges that the sum of $811.87 is due her on the contract above referred to, for which she asks judgment, and that the same be adjudged a specific lien upon the premises described in the complaint, prior and superior to any other incumbrance. The answer substantially admits the allegations of the complaint, but alleges, among other things, that Henry D. Langdon violated the agreement set up in the complaint, by executing a mortgage to plaintiff and Lydia I. Boyce each of $1,000, also by giving to other parties a deed of the premises described in the complaint, while the defendant was in the possession of the same, under the agreement set out in the plaintiff's complaint. The answer also alleges that the defendant was compelled to and did bring an action in the supreme court against Henry D. Langdon and this plaintiff, to set aside such mortgage and deed, on the ground that the same were in fraud of the rights of the defendants. The answer also, among other things, alleged that, at the time of taking the mortgage of Henry D. Langdon, the plaintiff induced the said Henry D. Langdon to destroy the will devising the real estate to the defendant, which he was, as a part of the contract, bound to make. The answer also alleges that the plaintiff recovered in the action to set aside the mortgage and deed, and thereon recovered a judgment for costs, which has not been paid, and which he, in said answer, offers to set off against the plaintiff’s claim. On the trial, the judgment roll in the judgment in favor of this defendant, against this plaintiff and others, in the action to set aside the mortgage and deed, referred to in the answer in this action, was put in evidence, wherein it appears that it was adjudged in that action that the contract was one enforceable in equity. The referee in that action found as follows:

“ That the plaintiff should take possession of said farm and the personal property therein, and have such personal property, and should support the said Henry and his wife during their lives, and their unmarried daughter, Lydia, until she married, and pay the said Henry D. Langdon’s two daughters,' Lydia and Jane, the sum of $1,000 each (less what Henry had advanced to them), and that said plaintiff should have the personal property on said place, and the use of the real estate, and said Henry would by will devise the real estate to plaintiff on - his death. Said payment to-daughters was to be made on the death of said Henry, or before if plaintiff was able to make the payments.”

The referee in that action found the following as conclusions of law: [

“ I find that plaintiff is the equitable .owner of the estate described in the complaint, and that said Henry D. Langdon held the title therefor in trust, and had no right to make the deeds and mortgages above mentioned. • His execution of said deeds and mortgages was in violation of plaintiff’s rights, and a fraud upon plaintiff. That the plaintiff is entitled to a judgment setting aside said mortgages and deeds. I therefore direct that judgment be entered in favor of plaintiff, against the defendant, adjudging the' said mortgages and said deeds fraudulent and void; and that said mortgages and deeds, and each of them, be canceled and set aside, and the said premises covered by them be adjudged and decreed free and clear from any lien or charge on account of said mortgages or deeds, or either; and that said Henry convey said ten-acre lot to plaintiff, and that the plaintiff recover the costs of this action of the defendants. April 20, 1882.”

Upon these findings of fact and conclusions of law, a decree was-perfected containing the following provisions:

“And it is further ordered, adjudged, and decreed-that the equitable title to the premises last aforesaid is in the said plaintiff,. Charles A. Langdon, free, clear, and discharged of any and every lien, charge, or incumbrance whatsoever, so created by or on account of said mortgages to said defendants Jane E. Guy and Lydia I. Boyce, and the deed to the defendants Thomas, James, and Alexander Bensmore.”

The evidence discloses that, after the date of the report of the-referee in the action to set aside the mortgage and deed above referred to, Henry B. Langdon entered into a written agreement, with the defendant, reciting the existence of the agreement first above referred to, and the costs and expense, to which the defendant had been subject by reason of the giving of the mortgage and deed, which had been vacated by the court, and reciting also the-agreement of the defendant to pay his sisters each $1,000, and in and by such agreement assumed to release the defendant from the payment of such sums to his sisters, and requiring him only to support Henry B. and his wife, as the consideration of the transfer of his property, real and personal to the defendant.

The plaintiff in this action contends that by the first contract between Henry B. Langdon and Charles A. Langdon, the validity of which was established in the action of Charles A. Langdon against Henry B., this plaintiff, and others, a valid trust was created in her favor for $1,000, and that the same is and was irrevocable either by the settler or by anyone else in the contract creating the trust, either to annul or modify the same, and that the defendant, by accepting the personal property and the possession of the real estate, and thereafter asserting and enforcing his right to the same under the terms of that contract, became the trustee for this plaintiff for the $1,000 given by Henry D. Langdon to her, and, having as such trustee taken possession of the property out of which this $1,000 was to be paid, the gift to her became a valid gift inter vivas from her father, with a valid and immediate delivery of the property given to the defendant as trustee for her use, and could not be divested by the donor and trustee without her consent. To uphold this contention, it must it seems be held that the delivery of the property of Henry D. Langdon to the defendant constituted a valid gift of the $1,000 to the plaintiff, and for her benefit, delivered to the trustee for her use. There being no legal liability from Henry D. to the plaintiff for the payment of this $1,000 to her, this transaction is unlike the case of Lawrence v. Fox, 20 N. Y. 268, and the plaintiff cannot rest a recovery upon the authority of that case. In that case the party to whom the promise was made for the benefit of the plaintiff was the debtor of the plaintiff. No such condition exists here, and the plaintiff, if she can recover at all, must do so upon the theory that Henry D. made a valid executed gift of this money to her, with a valid delivery to the defendant, as trustee, for her benefit. To constitute a valid gift inter vivas, the donor must part with all dominion and control over the thing given. It seems to me that in this respect the transaction failed to constitute a gift. The most that can be claimed for the contract between the defendant and his father was that a paroi ex-ecutory agreement was made between them for the payment by the defendant, at some future time, of the sum of $1,000,' in consideration of all the personal and real property of Henry D., the legal title to the real property to remain in Henry D. during his life, and the transfer to depend upon the support of Henry D. and wife by the defendant during their lives. Clearly, the vesting of this property in the defendant depended upon the happening of some future event. Suppose, after the making of this contract, the defendant had failed to furnish the support, and thus lost his equitable rights under this contract; could it be insisted that an equitable charge had been created against this property for the plaintiff’s $1,000, which she could enforce through the defendant as. her trustree ? The answer is that she could not. There was, therefore, no such valid gift as would divest the donor of the title and possession of the subject of the gift. Nor was there such a vesting of the title and possession in the defendant, as trustee, at the time of making the contract, as, to make him liable to the plaintiff as her trustee for this $1,000. Failure on the part of the defendant to perform this contract for support would clearly have worked a forfeiture of his claim, under the contract, to this property. That being so, it cannot be said that there was such a complete delivery of this $1,000 by Henry D. Langdon to the defendant, at the time of making this contract, as to put it beyond the power of the alleged donor to reclaim the same, or beyond the power of the defendant, by his failure to perform, to forfeit his rights to the property under the contract. There was not, therefore, such a complete delivery of the subject of the alleged gift as to work an immediate transfer of the title, and vest the same in a trustee, for the benefit of the plaintiff, as is necessary to constitute a valid gift inter vivas.

But it is.insisted by the appellant that the defendant, by invoking the aid of the court of equity in the enforcement of this contract, has estopped himself from alleging the invalidity of the gift of this $1,000 to the appellant, as that gift constituted a part of the consideration for this contract. There would be force in that contention had the plaintiff accepted and adopted the gift under the contract, and not by her own act, in conjunction with the alleged donor, repudiated it, and taken a mortgage on the premises embraced in the contract, denying the validity of the gift; but by that act it is manifest that she treated the-gift as invalid, and did not accept it in the form in which the contract left it. But the equitable relief sought and obtained by the defendant grow out of a performance on his part, and operated only between the parties to the contract, and did not relate back and validate a gift to a stranger, not a party to the contract, which was void in its inception, for want of delivery. As was said by the learned trial court, the equity in this case, which was enforced by the action, arose only between the parties creating it, clearly not for the'benefit of strangers to the contract, and lie adds :

“ To say that equity works out in favor of [the plaintiff] Jane is to admit that she had no gift in the beginning; that the gift to her * * * was wholly dependent at all times upon the will of the contracting parties." ‘‘This quality defeats the contention of a gift in presentí, and no other kind of gift is recognizable."

The weakness in this case on the part of the plaintiff arises out of the fact that there was no valid gift of this $1,000 to the plaintiff or to the defendant, as her trustee for her use. That being so, we think the learned trial court was correct in his conclusions,- and that the judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    John Redington, as Administrator, etc., Resp’t, v. New York, Ontario and Western Railway Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Master and servant—Appliances.
    It is the duty of the company to furnish a car for the transportation of railroad iron suitable for such purpose, and the loading of such iron on’ a short car is the &ct of the company and not that of a fellow-servant of a brakeman who is injured thereby..
    2, Same—Rules.
    In the absence of the promulgation of any rules for the government of its yard, the suffering of a loaded car to stand upon an inclined track without having on the brakes, is an omission of the company, and not of-a fellow-servant.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      George H. Carpenter, for app’lt; T. F. Bush, for resp’t.
   Mayham, P. J.

Michael E. Redington, the plaintiff’s intestate, while engaged, as an employe of the defendant, in coupling cars in the defendant’s railroad yard at Livingston Manor, was crushed between two cars and killed, and this action was brought by his personal representative under the statute to recover damages for such loss of life. The theory of the action is that the defendant was guilty of negligence in causing to be loaded on one of the defendant’s cars railroad iron, consisting of iron or steel rails which were two feet longer than the car, so that the rails projected more than a foot over each end of the car, and beyond the deadwood or bumpers, and thus rendering the deadwood or bumpers little or no protection to persons required to couple such car with others on the train. There was proof on the trial tending to uphold this theory. The defendant attempted to meet this theory of the plaintiff by proof that the accident occurred in the daytime; that the condition of the car and its loading were plainly to be seen; that the business of coupling cars is dangerous, and the danger is one of the incidents of the employment; that the evidence tended to show that the car loaded with iron stood on a track with a descending grade towards the gondola car, to which the intestate was required to couple it, and that it was not secured from moving down the grade by its own gravity by brakes; and that suffering it to stand in that condition on the track without brakes down, or other fastening, was the negligence of a co-employe, for which the defendant is not resporsible. All of these questions, as they were presented by the evidence, were questions of fact proper for the consideration of the jury, and were fairly submitted by the learned trial judge. In the absence of any rules prescribed by the defendant for the government of the yard for the storage of cars and the making up of trains, it was the duty of the brakeman who is employed, subject to the order of the conductor, to couple these cars, and it was a question of fact for the jury to determine under the evidence whether the car was so loaded that it was rendered an unsafe place for the deceased to work, and whether such condition was the result of the negligence of the defendant in not furnishing suitable cars for the transportation of such rails. The platform car on which they were loaded was shown by the proof to be only twenty-eight feet long, while the rails which were- loaded upon it were thirty feet long, so that the cars could not be loaded with these rails without their extending beyond the body of the car two feet. That extension seemed to have been substantially divided between the ends of the car, so that there was an extension of one foot on either end beyond the body or frame of the car. The court properly submitted it to the jury to say whether that extension rendered the car an unsafe or dangerous utensil to be used by the intestate, who was the defendant’s employe, and whether the extension of the rails beyond the car frame produced the injury to the plaintiff’s intestate.

The legal principles involved in this class of actions have been so frequently and recently discussed that an extended examination of them in this case seems unnecessary. In Bushby v. N. Y., L. E. & W. Railroad Co., 107 N. Y. 374; 12 St. Rep. 9, it was held that the duty of the master to his servant to furnish reasonably safe, proper, and adequate machinery and other appliance for his work cannot be evaded by a delegation of that duty to another. If, therefore, the loading of these long rails upon a short car rendered the coupling more hazardous than that duty would otherwise be, and the place of coupling the cars was therefore made unsafe, so that it increased ordinary danger of coupling cars, and by reason of th'at increased danger the intestate suffered the injury complained of, it would seem to follow that the defendant had failed in its. duty to the employe, and would be liable, unless the employe was guilty of contributory negligence himself. We think, within the case above cited, that it was the duty of the defendant to furnish a car for the transportation of railroad iron suitable for the purpose for which it was to be used, and that the loading of this iron on a short car was the act of the defendant, and not that of a fellow-servant of the deceased; and, in the absence of the promulgation of any rules for*the government of the defendant’s yard, the suffering of the flat car on which this iron was loaded to stand upon a track which was to some extent an incline plane, without having on the brakes, so as to prevent it moving by its own weight, was an omission of the master, and not of a fellow-servant. The company does not appear at this station to have any rule as to the inspection of trains or cars. The dutjL therefore, of furnishing safe cars, tracks, and trains inhered in the company, as no person at that yard was charged with that special duty. In Abel v. D. & H. Canal Co., 103 N. Y. 581; 4 St. Rep. 269, the court say :

“ The law imposes upon a railroad company the duty to its employes of diligence and care, not only in furnishing proper and reasonably safe appliances and machinery and skilled and careful coemploy.es, but also of making and promulgating rules which, if faithfully observed,.will give reasonable protection to its employes.

We think ail the questions relating to the alleged negligence of the defendant in not furnishing a reasonably safe place and appliance for the performance of its work, and as to whether or not the deceased was negligent in obeying the orders of the conductor in attempting to couple these cars, and as to whether he knew of the liability of the car loaded with iron to move down upon him by reason of the brakes not being set, were questions of fact for the jury, and were properly submitted to them by the trial judge. Nor do we see any error in the rulings of the judge for which this judgment can be reversed.

Judgment affirmed," with costs. All concur.


text:
    Robins M. Witherbee et al., Resp’ts, v. Aubrey E. Meyer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Appeal—First instance.
    A defendant cannot, when sued in equity, avail himself of a defense that an adequate remedy at law exists, unless he pleads that defense in his answer. x

      Appeal from a judgment in favor of plaintiffs.

      Potter & Lillie (J. Sanford Potter, of counsel), for app’lt; Joseph Potter, for resp’ts.
   Herrick, J.

This is an appeal from a judgment entered upon the report of a referee, awarding a judgment in favor of the plaintiffs for the specific performance of a contract to furnish water power, and for damages in the sum of $3,119.50, for withholding the same. The appellant claims that the case is not one for a specific performance; that the plaintiffs have an adequate remedy at law. It is possible that the appellant’s contention is true, but it comes too late. He neither raised that question by his answer, nor can I discover by an examination of the record that it was raised during the progress of the trial. “ It appears to be settled by very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of a defense'that an adequate remedy at law exists, unless he pleads that defense in his answer.” Town of Mentz v. Cook, 108 N. Y. 504-508; 13 St. Rep. 845 ; Hollister v. Stewart, 111 N. Y. 644-659; 20 St. Rep. 941; Hawes v. Dobbs, 137 N. Y. 465-470 ; 51 St. Rep. 271; Dudley v. Congregation, 138 N. Y. 451-460 ; 53 St. Rep. 19. The plaintiff had a right to •ask for a specific performance and for damages in the same action. Miles v. Iron Co., 125 N. Y. 294-298. Where a court of equity has once obtained jurisdiction of a case, it will ordinarily retain it until the whole controversy is disposed of, and will adapt its relief to the exigencies of the case. Ostrander v. Weber, 114 N. Y. 102 ; 22 St. Rep. 979 ; Valentine v. Richardt, 126 N. Y. 272; 37 St. Rep. 12. The agreement to furnish water power was in terms one between the parties, their executors, administrators, and assigns. It was one that affected the lands now in possession of the defendant, and affected the value thereof; and, when the de fendant took the conveyance of the water rights and premises which he now owns and holds, the conveyance thereof recited that he took the same subject to the agreement in question. It seems to me, therefore, that the agreement constituted a covenant running with the land, and that there was a privity of estate between the defendant and the plaintiffs, who are the assigns of the rights granted by said agreement. There was sufficient evidence to sustain the findings of fact of the referee, and they should not be disturbed.

The judgment should be affirmed^ with costs.

All concur.


author: Merwin, J. Hardin, P. J.

text:
    Thomas E. Park, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Evidence—Mastei and servant.
    Evidenceof the general reputation of a servant as to his prudence and care is admissible to charge the master with notice of his incompetency.
    A.ppeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Hiscock, Doheny & Hiscock, for app’lt; Louis Marshall, for resp’t.
   Merwin, J.

The recovery in this case is for damages sustained by the plaintiff by reason, as he claims, of the negligence of the defendant. On the 21st November, 1891, the plaintiff was, and. had been for a number of years, in the employ of the defendant as a locomotive engineer. On the evening of that day he was the engineer upon a mail express train that left Syracuse at eight-twenty-five, eastward bound on track'No. one. The train passed Oanastota about nine o’clock, and when about a mile east of that place it ran into a freight train of the defendant,going eastward on the same track, but which was then stalled in going up a grade. The injuries to the plaintiff which are here complained of were one of the results of the collision. The night was dark and rainy, and there was a strong southerly wind. At Oanastota the plaintiff was informed by the indicator there that there was a train on the same track forty-three minutes ahead of him. His train was going at the rate of about forty miles an hour. Between Oanastota and the place of the accident there is a curve to the north, being to the left as you go east, and the stalled train was a short distance (about eight hundred feet) beyond this curve. The plaintiff claims that he did not see the stalled train or get any notice of the obstruction in time to stop. Whether he did so, or whether, in the exercise of reasonable care, he might have done so, were questions for the jury. When the freight train stopped, it became the duty of one Brownr a brakeman on that train, to go back, at least half a mile, according to the rule of the defendant, and give the proper signal to any approaching train. There was evidence tending to show that he did not do this, although he had plenty of time for that purpose; that his failure to do it was the cause of the accident ; and that such failure was due to his incompetency to perform the duties of his position. There is abundant evidence to sustain the finding that Brown was incompetent, within the rule laid down in Coppins v. N. Y. C. & H. R. Railroad Co., 122 N. Y. 557, 564; 34 St. Rep. 214. The conclusion that the accident was due tq such incompetency is not against the weight of the evidence. It is claimed by the plaintiff that the defendant was negligent in employing and keeping in their employment such a man, when0 it knew, or in the exercise of reasonable care might have known, of his unfitness for the position. The conclusion of the jury in this respect should not, we think, be disturbed.

It is claimed by the defendant that the plaintiff was himself negligent in that he did not, as the defendant claims, comply with rule No. 131 of the company. That provides on this subject as follows:

“It is required of both engineman and fireman to keep a careful lookout from the engine. When rounding curves, take position-on the inside of the curve, and keep sharp lookout until a straight line is reached.”

The curve here was to the left. The position of the plaintiff on the engine was on the right, while the position of the fireman was on the left. The plaintiff did not, on approaching the curve, take position on the left. Whether his failure to do so, under the circumstances of this case, was negligence which contributed to the acccident, was a matter for the jury to decide.

In the course of the trial, evidence on the part of plaintiff was-received of the general reputation of the brakeman Brown prior to-the accident, as to his prudence and care. The objection taken was that it was incompetent and immaterial. Evidence was also received, under like objection, that his general reputation was that-he was “a little off,” and that among railroad men he was usually called “Crazy Brown.” The defendant claims that in admitting-this evidence there was prejudicial error. It has been held in several cases that evidence of this kind was competent on the subject of notice. Gilman v. Railroad Co., 13 Allen, 433 ; Monahan v. City af Worcester, 150 Mass. 439 ; Railway Co. v. Stupak, 123 Ind. 210, 225; Davis v. Railroad Co., 20 Mich. 124; Railroad Co. v. Hoover, 29 Atl. 994; Wood, Mast. & Serv. § 421. In the Monahan case it is said:

“The master is bound to use reasonable care in selecting his servants, and, if a person is incompetent for the work he is employed to do, the fact that he is generally reputed in the community to want those qualities which are necessary for the proper performance of the' work certainly has some tendency to show that the master would have found out that the servant was incompetent, if proper means had been taken to ascertain the qualifications of the servant.”

On the part of the defendant, we are referred to Hasken v. N. Y. C. & H. R. Railroad Co., 65 Barb. 135, and Young v. N. Y., O. & W. Railroad Co., 77 Hun, 612; 59 St. Rep. 888. The Young case was decided by this court, but the question here involved was not passed upon. In the Hasken case, which was decided in January, 1873, evidence as to the reputation of one Wood as an engineer had been excluded, and in sustaining the ruling it was said:

“Reputation is not competent evidence to charge a master with negligence in the employment of a servant, because—First, it may be false; and, second, he may never have heard it.”

It was also said that no question was made that' the defendant was chargeable with negligence in the employment of Wood. What bearing reputation might have on the question of notice was not considered. It may be here observed that in Baulec v. N. Y. & H. Railroad Co., 59 N. Y. 356, decided in December ber, 1874, it is said by Judge Allen, at page 361:

“A principal would be without excuse should he employ, for a responsible position, on the proper performance of the duties of which the lives of others might depend, one known to him as having the reputation of being an intemperate, imprudent, indolent, or careless man. He would be held liable to the fellow servants-of the employe for any injury resulting from the deficiencies and defects imputed to the individual by public opinion and general report.”

We are of the opinion that the evidence of general reputation was competent on the subject of notice, and therefore the general objection to it was properly overruled. Hersey v. Benedict, 15 Hun, 285. The defendant did not ask to have its effect limited to the • question of notice. It would seem, from the course of the trial, that the main, if not sole, object of the evidence was to show notice. It was referred to by the court in its charge, and no exception taken to the remarks of the court on the subject. We have examined the other exceptions to which our attention has been called, and find no sufficient ground for reversal.

Martin, J., concurs.

Hardin, P. J.

In yielding my assent to the views expressed .in the opinion of Merwin, J., besides the authorities cited therein, I am influenced somewhat by the decision made by this court in Van Dusen v. L. S. & M. S. Railway Co., 12 St. Rep. 353. It was "there said, viz.:

“ It may be said that the defendant should have known his reputation as a railroad man. The answer to that suggestion is that there was no evidence that he had other than a good reputation at the time of his employment, or at any other time, excepting ■during the two days in which he was engaged in making a single trip over the defendant’s road.”

The language seems to indicate that such evidence might have been proper to show the defendant guilty of negligence in selecting or keeping an employe in the service of the road. I think due regard to the authorities require I should concur, as I do, in the opinion of Merwin, J. Bossout v. R., W. & O. Railroad Co., 32 St. Rep. 884; affirmed in court of appeals, 126 N. Y. 646. Judgment and order affirmed, with costs.