text:
    Ida Peil, App’lt, v. James M. Reinhart, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    1. Negligence—Landlord and tenant—Care of stairway in tenement.
    It is the duty of the landlord of a tenement house, to use reasonable care to keep a stairway, common to the occupants of the building, in proper repair, and for failure to do so, he is chargeable with liability for injuries suffered by them, without their fault, while properly using it for such purpose.
    2. Same.
    Such liability attaches where the injury was caused by tripping in a ragged carpet, to which the landlord’s attention had been called by plaintiff, and which he had promised to remove.
    3. Same—Contributory negligence.
    While plaintiff’s previous knowledge of the condition of the passageway may have imposed on her the duty to exercise a greater degree of care, she was not required to desist from using the stairway by reason of the ruptures in the carpet.
    Appeal from order of the general term of the city court of Brooklyn, reversing judgment entered upon a verdict in favor of the plaintiff and granting a new trial.

      Ferando Solinger, for app’lt; George G. Elliott, for resp’t.
   Bradley, J.

The plaintiff, as tenant of the defendant, occupied some rooms in a tenement house of the latter, and had access to such rooms by means of a stairway common to the occupants of the building.

It appears by the evidence on her part that in descending the stairway in the evening of January 15, 1888, the plaintiff fell and received the injuries complained of ; and that such fall was caused by the defective condition of the stair carpet; that the carpet had been in such condition for several months: and that the attention of the defendant had, in December previous, been called to it by the plaintiff, and he said he would remove it. There was some conflict in the evidence of the parties as to the latter fact and as to the subject of the injury and its cause, but that there were, and for considerable time had been, holes in the stairway carpet, was not seriously questioned.

It was the duty of the defendant to use reasonable care to keep this stairway in repair and suitable condition for the safe passage of his tenants over it in their way to and from their rooms; and for failure to do so he was chargeable with liability for injuries suffered by them, without their fault, while properly using it for such purpose. Looney v. McLean, 129 Mass., 33; Lindsey v. Leighton, 150 id., 285 ; Donohue v. Kendall, 18 J. & S., 386; Neyer v. Miller, 19 id., 516.

The conclusion was warranted by the evidence that the condition of the carpet was such as to justify apprehension of danger of tripping in passing upon the stairway, and that at the time in question the plaintiff’s foot was caught in a hole in the carpet, thus causing her fall and injury; and that the defendant was chargeable with negligence for permitting it to remain in such condition, and with its consequences to the plaintiff, unless her negligence contributed to the injury which she sustained. It is urged that as she was cognizant of the situation, and the hall of the stairway was well lighted by a lamp, her fall was necessarily attributable to the fault or negligence of the plaintiff.

Her previous knowledge of the condition of the passage-way on the stairs imposed upon her the duty to exercise a greater'degree of care than otherwise may have been required of her in passing over them, but she was not required to desist from using the stairway by reason of the ruptures in the carpet. And while the question may have been a close one of fact it could not properly be held as matter of law that the plaintiff was guilty of contributory negligence; and, therefore, the motion for nonsuit was properly denied. Palmer v. Dearing, 93 N. Y., 7; Looney v. McLean, 129 Mass., 33. The question presented would have been quite different if the staircase had been part of the premises demised to the plaintiff. Then the evidence may not have warranted a recovery by her; and many of the cases cited by the defendant’s counsel would have been applicable. But the stairway was not under the control of any of the tenants, but was provided by the defendant for the common use of those having occasion to pass to and from the rooms which they occupied as his tenants. And the weight of the evidence bearing upon the question of negligence of the defendant or of contributory negligence of the plaintiff is not here for consideration. The appeal to the general term having been taken only from the judgment entered on the verdict, presented there for review questions of law only, dependent upon exceptions. To review in general term questions of fact arising upon a trial of an action at law by jury, it is essential that a motion be made for a new trial, at circuit on the minutes or at special term on a case, and that an appeal be taken from the order thereupou made as well as from the judgment, if one has been unqualifiedly entered upon the result of the trial. Wright v. Hunter, 46 N. Y., 409. And in such case an order reversing that denying a new trial and granting it is not reviewable in this court. Harris v. Burdett, 73 N. Y, 136. There was no error in the reception of the evidence of the condition of the stair carpet the morning following the injury, as without proof to the contrary it was reasonable to assume that its then condition was substantially the same as at the time in question.

The order should be reversed and the judgment entered on the verdict affirmed.

All concur.


source: Caselaw Access Project

author: Potter, J.

license: Public Domain

text:
    Columbia Bank, App’lt, v. The Gospel Tabernacle Church, Resp’t.

      (Court of Appeals, Second Division,

      Filed June 23, 1891.)

    1. Appeal.
    Where at the close of plaintiff’s' case defendant’s counsel moves for a non-suit, which was granted and exception taken by plaintiff, and then the plaintiff proposes and requests findings of facts and questions of law which were passed upon by the referee, an appeal becomes one from the judgment upon the merits as directed by the referee and not as a judgment of non-suit, and plaintiff’s relief from having it so treated was obtainable by a motion to correct the record in that respect.
    2. Religious corporation—Bank account of treasurer.
    Where the treasurer of a religious corporation opens a bank account in his name as treasurer without the consent, knowledge or authority of its board of trustees, and deposits its funds therein without the authority or direction of the corporation, it is his individual account, and the corporation is not responsible for any dealings by him with the bank not authorized by its board of trustees.
    Appeal from a judgment of the general term of the superior court of the city of New York affirming a judgment entered upon the report of Hamilton Cole, Esq., referee, to whom was referred all the issues to hear and determine, dismissing the complaint on the merits.
    The cause of action stated in the complaint is substantially that the defendant, a religious corporation, was a depositor in plaintiff bank, and kept an account therein from which it drew out, and deposited moneys arising from receipts of money by defendant and proceeds of discounts for defendant, and that the defendant drew out an excess of $3,428.25 over its deposits, and further that the plaintiff on November 1, 1886, received from defendant a certain promissory note dated November, 1, 1886, made by the Tribune & Farmer Company, Limited, for the sum of $3,500 at four months from its date; said note, when so received, was duly endorsed by said payee thereof and by defendant, and was received by plaintiff as collateral security for such credits, loans and advances, or for some of them made, as aforesaid, to defendant ; that plaintiff held said note until its maturity, when it was duly presented for payment and payment demanded, but no part of the same was paid, and the same was duly protested, all of which defendant was duly notified. The plaintiff still holds said note and offers to surrender the same to defendant.
    The demand is for judgment for $3,428.25, the amount of the alleged overdraft, and not for the amount of the note, with interest.
    _ The answer denies the material allegations constituting the liability; and further, that said note and loans and discounts were without the authority and beyond the power of defendant, and were in fraud of defendant, and of all of which plaintiff had notice.
    One Sniffen was the treasurer and one of the trustees of defendant. He as such treasurer opened the account and had all the transactions with plaintiff out of which the liability of the deis claimed to have arisen. The referee finds that the defendant was not aware of the opening of the account or of these transactions, and that they were unauthorized by the defendant. The referee, after an examination and consideration of the evidence, made full findings of fact, and as a conclusion of law that the defendant was not liable, and dismissed the complaint upon the merits.
    Other facts will be found in the opinion.

      Adolph L. Sanger, with Louis Marshall, for app’lt; Edward S. Clinch, for resp’t.

       Affirming 26 N. Y. State Rep., 170.

   Potter, J.

The plaintiff claims the right to treat the case as a question of law simply arising upon a judgment of nonsuit, and that as there was some evidence of plaintiff’s claim, it would have had the right to go to a jury, or, in the absence of a jury, to have the court or referee pass upon such evidence.

The answer is that the plaintiff, by proposing and requesting findings, consented to and did in fact treat the case as one where the whole evidence was to be passed upon and which was in fact passed upon and findings made for plaintiff as well as defendant, and so the referee properly dismissed the case upon the merits.

These facts appear from the case upon appeal; that at the close of the examination and cross-examination of plaintiff’s witnesses, that the- defendant’s counsel moved for a nonsuit, which was granted and an exception taken by plaintiff.

It further appears that the referee proceeded to take the testimony and proofs offered, and having considered the same and the arguments of counsel thereupon, etc., and that the plaintff duly submitted to the referee the following, as to which he made the rulings as they respectively appear:

“ The plaintiff submits the following statement of the facts which it deems established by the evidence, and of the rulings upon questions of law which it requests the referee to make.”

The plaintiff prepared twenty-six findings of fact, a part of which were found and the rest refused or were found as modified, and four findings or conclusions of law, and also took twenty-eight exceptions of -fact and to the refusal to find the conclusions of law.

It should be also stated that the defendant’s counsel examined and cross-examined all the witnesses called by plaintiff and some of them at great length and among the witnesses so examined were some of the trustees and the pastor of the defendant.

Hnder these circumstances, it seems to me that this court should treat this appeal as an appeal from a judgment-upon the merits as directed by the referee, and not as a judgment of nonsuit, and that the plaintiff’s relief from having the judgment so treated was obtainable by a motion to correct the record in that respect.

The two cases cited relied upon by the appellant to support its contention in that regard are Scofield v. Hernandez, 47 N. Y, 313, and Forbes v. Chichester, 30 N. Y. State Rep., 370, but they are, in some essentials, unlike the case at bar. Both cases were claims presented against the estates of decedents, and were referred under the statute. The proceedings in such cases are statutory and special. Roe v. Boyle, 81 N. Y., 305; Mowry v. Peet, 88 id., 453.

In the former case, 47 N. Y., supra, the referee, at the close of plaintiff’s or claimant’s evidence and upon motion of the defendant, granted a non-suit, to which plaintiff duly excepted and the referee afterward made findings. It does not appear that the defendant or the plaintiff submitted or requested the referee to make any findings or took any step in that direction. It moreover appears from the recqrd that the case cited was a judgment of non-suit and not upon the merits."

In the case of Forbes v. Chihcester, supra, the defendant at the close of plaintiff’s case made a motion for a non-suit and the referee reserved his decision. He then wrote an elaborate opinion based upon the plaintiff’s evidence at the conclusion of which he said: “ I think the defendant’s motion should be granted.” After this the case was opened and the plaintiff put in further evidence and again rested and the defendant renewed his motion for a non-suit. The defendant offered no testimony. The referee reserved his decision, but later made findings of fact and granted the defendant’s motion for non-suit.

It will be observed that the defendant did not in the cases cited, as was done in the case under consideration, propose or request any findings whether of law or fact and did not file any exceptions to the findings. The record in the case at bar shows an ordinary action at law and contains the requests and findings upon the part of both plaintiff and defendant and exceptions upon the part of the defendant, and also, that the judgment was for the defendant upon the merits. Besides the defendant in this case by an examination of plaintiff’s witnesses proved affirmatively, among other facts, the fact that the defendant had no knowledge that Sniffen as its treasurer had opened an account with the plaintiff; that the defendant’s board of trustees never authorized or ratified the discounting of any notes for defendant; that the proceeds of the discount of the note in question made by “ The Tribune & Farmer Co., Limited,” and endorsed by Sniffen as treasurer, was applied at plaintiff’s bank to pay two notes given by Weed to Sniffen for his personal use and the balance of the proceeds, $628.25, were paid to Hubbard, plaintiff’s cashier, on account of a personal tranaction between him and Sniffen.

From the practice of the counsel upon the trial and evidence before the referee, and upon which he made findings, and defendant took exceptions, the character of the referee’s report and the character and provisions of the judgment, I am very clear that the judgment was, and was intended to be, a judgment upon the merits, and should be so treated upon the consideration of this appeal. Van Derlip v. Keyser, 68 N. Y., 443.

It might very properly be suggested in this connection, that as the form of the judgment, being a judgment upon the merits, that the plaintiff should have moved to set the same aside for irregularity, if the conduct of the counsel and proceedings upon the trial did not call for such a judgment, or if such judgment, was not intended or expected.

That would have been the ordinary and proper proceeding, and would, no doubt, have relieved this court from its present embarrassment in relation to that question, and would also have changed very materially the line of argument of counsel upon this appeal.

(The one course required a strain of argument, and the other a strain of affidavit.)

If these views are correct, this appeal is to be considered and decided as an appeal from a judgment upon the merits, and not as a judgment.of nonsuit.

The case of The People's Bank v. St. Anthony's R. C. Church, 109 N. Y, 512; 16 N. Y. State Rep., 856, clearly settled these propositions of law in relation to religious corporations created under the act of 1813 (chap. 60), and render any further discussion of them unnecessary, viz.: “ The trustees of a religious corporation, organized under the act of 1813 (chap. 60, Laws of 1813), as amended in 1863 (chap. 45, Laws of 1863), have no separate or individual authority to bind the corporation, and this, although a majority, or the whole number acting singly, assent to the particular transaction; only when acting as a board, can they make or authorize acts binding on the corporation.

“ Proof that a promissory note, purporting to be made by a religious corporation, was signed by its president and secretary, does not show that it is the note of the corporation, without proof that it was made by its authority. An agency can neither be created nor proved by the acts or declarations of the assumed agent alone.

“ In an action against a corporation, the presumption that its officers have done their duty, does not stand for proof of authority, in a matter outside of their official duties, and where special authority must have been conferred to justify the act.

The referee has found, upon abundant evidence for that purpose, that the account between the plaintiff and B. Duncan Sniffen, treasurer of the defendant, was not opened with the consent, knowledge or authority of the defendant or its board of trustees, and that defendant had no knowledge or connection with the Wyckoff, the Weed or the note in suit, and that none of them, or the transactions with which those notes were used, have been ratified by the defendant, and that they were personal transactions between Sniffen and the cashier of the plaintiff and Wyckoff and Weed. These were affirmative findings, based upon the evidence introduced upon the trial.

It would have been quite sufficient for the defense to the action, that the plaintiff was bound to show that the defendant- authorized the acts of Sniffen, out of which the alleged liability arose. This case is so obviously and unmistakably like the case of the People's Bank v. St. Anthony's Catholic Church, that further discussion would prove but a waste of time.

That case was upon an obligation to repay money borrowed by the defendant evidenced by the signatures respectively of its president, secretary and treasurer and pastor.

The defendant in that case, upon an examination of the plaintiff’s witnesses, proved that the signatures, though really made by its officers, were made while acting separately. and not at the same time or place, or while assembled as a board of trustees.

It was sought in that case, as in this, to sustain the action upon the powers presumptively incidental even to religious corporations to borrow money for the promotion of its objects. But the court declined to sustain the action upon that ground, so common and well known, and said : “We think the case is with the defendant on a much plainer ground, and that is, that the plaintiff failed to establish or to give evidence which raised a presumption that the notes in question were the authorized obligations of the defendant.”

We think it not improper to remark in this connection that the sentence quoted and other remarks in the opinion in that case, furnish a complete answer .to the ingenious argument of the appellant’s counsel, that the plaintiff in this case showed an apparent authority in its treasurer, Sniffen, to endorse strange notes and procure their discount and to use their proceeds personally, which was available to give the plaintiff the right to go to the jury upon the question of actual authority, or to estop the defendant from proving a want of such authority. In regard to the exception to the evidence of the declarations of the plaintiff’s cashier and the purpose for which the note in question was discounted, as testified to by the witness Ferris, it is sufficient to remark that if we were of the opinion that such evidence was improper, it had no influence in determining the non-liability of the defendant in this action.

We think the judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., not voting.


author: Gray, J.

text:
    The Rector, etc., of Holy Trinity Church of Harlem, Etc., App’lt., v. The Rector, etc., of the Church of St. Stephen and James Blackhurst, etc., Resp’ts. The People ex rel. The Rector, etc., of the Church of St. Stephen, App'lt, v. James Blackhurst, as Treasurer, etc., Charles E. Fleming et al., Respt’s.

      (Court of Appeals,

      Filed June 23, 1891.)

    Appeal—Court oe appeals—Withdrawal oe appeal.
    Where the wardens and vestrymen of a religious corporation have authorized the withdrawal of an appeal to this court through attorneys named for that purpose, the objection of an attorney who has previously acted for the corporation under a previous management, cannot avail as against the desire of the corporation where he has ceased to represent it.
    Application by appellant to withdraw appeal from judgment of supreme court, general term, first department

      Wager Swayne, for app’lt; Wm. H. Hamilton, for resp’ts.
   Gray, J.

The motions upon the petitions for the withdrawal on the above entitled appeals should be granted.

The objections of Andrew J. Shipman, who has claimed to be attorney for the corporation of the church of St. Stephen, cannot avail against the desire of that corporation as expressed by the vestry. The wardens and vestrymen elected at the Easter election, 1891, represent the corporation appellant in the above action and proceeding, and they have authorized the motions now made through attorneys named for that purpose. To permit the appeals to continue to be prosecuted would be to deny the right to an appellant to discontinue litigation ; with no other reason than to gratify the wishes of an attorney who, whatever the foundation of his original authority to appear, has ceased to represent the litigant. There is nothing in the procedure which is objectionable, and we see no reason for denying the appellants’ applications.

There will be no costs awarded to any of the parties as against the other, except ten dollars costs of each of the two motions against the attorney Shipman in favor of the corporation of the church of St. Stephen.

All concur, except Finch, J., absent.


author: Per Curiam.

text:
    The National Broadway Bank in the City of New York v. Stephen T. Barker.

      (Court of Appeals,

      Filed June 23, 1891.)

    Attachment—Affidavit on information and belief.
    The supreme court commits no error in refusing to grant an attachment on the ground that the affidavit on which it was granted was insufficient because the affiant did not have personal knowledge of the facts stated therein.
    Appeal from judgment of supreme court, general term, first department, affirming order denying motion to vacate attachment in this action.

      P. Q. Eckerson, for app’lt; Wm. F. MacRae, for resp’t.

       Affirming 38 N.. Y. State Rep., 597.

   Per Curiam.

The plaintiff in this action obtained an attachment against the property.of the defendant, and the Mattson Rubber Company, a subsequent attaching creditor, made a motion to set the prior attachment aside; and that motion was denied at the special term. The rubber company then appealed to the general term, and there the order of the special term was affirmed.

It appears from the opinion of Judge Daniels at the general term that the order of the special term was affirmed on the ground that the moving papers did not show that the rubber company had acquired any lien by attachment upon the same property seized by the attachment issued in this action. The affidavit upon which the motion was based which was presented' to the special term for the purpose of showing that the rubber company had attached the same property seized under the prior attachment, was held to be insufficient, because the affiant did not have personal knowledge of the' facts stated therein. Without holding

that the supreme court could not in its discretion have accepted the affidavit as sufficient, it did not commit any legal error in refusing to accept it, and in denying the motion upon that ground.

The order should be affirmed, with costs.

All concur, except Finch, J„, absent.


text:
    George F. Hodgman, Resp’t, v. Stephen T. Barker, App’lt.

      (Court of Appeals,

      Filed June 23, 1891.)

    Attachment—Affidavit on information and belief.
    The supreme court is not bound to grant an attachment founded on an affidavit based on information and belief. It is sufficient to justify the court in refusing to grant the attachment, that such affidavit was not satisfactory to the court.
    Appeal from a judgment of the supreme court, first department, reversing order vacating warrant of attachment in favor of the plaintiff upon the motion of an alleged subsequent lienor.

      Wm. F. MacRae, for app’lt; Eugene K. Sackett, for resp’t.

       Affirming 38 N. Y. State Rep., 578.

   Per Curiam.

The National Broadway Bank, as a subsequent attaching creditor, made a motion to set aside the attachment in this action. Judge Ingraham, at the special term, vacated the attachment, holding that the affidavit upon which it'was granted did not show a cause of action against the defendant; that the attachment obtained by the bank was valid, and that it had thereby obtained a lien upon the same property seized by the attachment issued in this action. From the order of the special term the plaintiff appealed to the general term, and there the order was reversed, three opinions being written. Judge Van Brunt agreed with Judge Ingraham that the affidavit upon which the attachment in this action was issued did not show any cause of action; but he held that the affidavit upon which the attachment of the bank was issued was insufficient, and, also, that it did not appear that the attachment of the bank was levied upon the same property seized by the attachment in this action. Judge Daniels concurred .with Judge Van Brunt on the ground that it did not appear that the bank had attached the same property seized by the attachment in this action. Judge Lawrence, writing a dissenting opinion, agreed with Judges Ingraham and Van Brunt that the affidavit upon which the attachment in this action was granted, does not, show a cause of action in favor of the plaintiff against the defendant, and he held that the attachment of the bank was based upon a sufficient affidavit, and that it appeared that it was levied upon a portion of the same property seized by the attachment in this action; and he therefore favored the affirmance of the order of the special term. From the decision of the general term the bank has appealed to this court.

It is not necessary now to determine whether the affidavit upon which the attachment in this action was issued is insufficient. Two of the judges of the general term concurred in holding that it did not appear that the bank had a lien upon the same property attached in this action, and that therefore it had no standing which enabled it to move to set aside the attachment We will not now enter into a minute criticism of the affidavit presented to the special term to show that the bank had a subsequent attachment lien upon the property attached in this action. It is sufficient that the affidavit to prove the lien was not satisfactory to the supreme court. The facts were not within the personal knowledge of the person making the affidavit. They were based upon information received from another person, and no excuse whatever was given for not procuring the affidavits of the person having-personal knowledge of the facts. Even if the supreme court could properly have taken the affidavit, based upon information and belief as sufficient, it certainly was not bound to, and without committing any legal error it could refuse to grant the motion based upon such an affidavit. It is not for this court to say that it ought, and much less that it is not bound, to be satisfied with such an affidavit

We are, therefore, of opinion that the order of the general term should be affirmed, with costs.

All concur, except Finch, J., absent


text:
    Annie Barrett, an Infant, etc., App’lt, v. George Waldo Smith et al., Resp’ts.

      (Court of Appeals,

      Filed June 23, 1891.)

    Negligence.
    Plaintiff, four years of age, was one of a crowd of children watching some boys trying to get a bird out of a hole in a stone wall where there was no sidewalk, when defendant's team and heavy truck came along, driven very rapidly. Plaintiff was so frightened that she made a turn to run towards the wall and made another towards the street, and was knocked down by the horses. There was a conflict of evidence as to how near the wall the horses were driven. Held, that the driver had no right to keep on his way driving rapidly in plain view of the children, and defendant was liable if he drove so near the wall as to expose them to danger, and the question of negligence of the driver and of contributory negligence of the child was for the jury.
    Appeal from judgment of the Mew York superior court, general term, affirming judgment dismissing complaint.
    ■ Richard O' Gorman, Jr., for app’lt; James A. Seaman, for resp’ts.

       Reversing 38 N. Y. State Rep., 526.

   Per Curiam.

We are of opinion that the case should have been submitted to the jury. It is undisputed that the children were in plain view of the driver when he was several blocks away. They had gathered next to the high wall on the east side of the avenue, attracted there by the escape of the bird which had flown into an opening in the wall, near the bottom. The . roadway was at this point about twenty-five feet wide, between the curb of the sidewalk on the west side of the avenue and the wall, there being no sidewalk on the side next to the wall. All the witnesses concur in stating that the truck was being driven very fast. One witness, who was in a wagon back of the truck and going in the same direction, testified that the truck was moving at the rate of six miles an hour, a speed in excess of that permitted by the ordinance. It was moving parallel with the wall, but there is some discrepancy as to the distance therefrom. The person in the wagon following the truck, a block and a half behind, thought the distance was about fifteen feet. One of the children at the wall, a boy twelve years old, said the truck went about three feet away from the wall, and the mother of the plaintiff, who saw the accident from a window opposite, says the same thing.

The boy McLean says that when the truck came along he went up close to the wall to escape, and that Annie (the plaintiff) was so frightened she did not know where to go, and the horses struck her and she fell. “ She was so frightened that she made a turn to run towards the wall and made another one to run towards the street, and then the horse kicked her.”

It cannot be said upon this proof that there was an absence of all evidence of negligence on the part of the driver of the truck. The driver was bound to use reasonable care in using the street. He could not keep on his way driving rapidly in plain view of the children, and so near the wall as to expose them to danger, taking no precautions, provided he saw them or ought to have seen them. If the jury shall accept the statement of the witness who testified that his truck was being driven at a distance of fifteen feet from the wall, there would be slight ground for imputing negligence.

The injury to the child could then be accounted for only on the supposition that without cause she undertook to cross the street in front of the horses, a movement which he could not reasonably have anticipated. But if he drove within three feet of the wall, it would be for the jury to say whether it was, under the circumstances, a reasonable and prudent act. Some of the children were intent upon capturing the bird, and the others, including the plaintiff, were watching the proceeding. If the truck was moving in a path but three feet from the wall, the fright of the plaintiff when she discovered it was natural, and might reasonably have been anticipated by the driver, and the situation ought to have admonished him of the necessity of slackening his speed or crossing to the other side of the road before passing the children.

If the plaintiff had clung to the wall she would have been safe, but in her terror she first turned one way, and then toward the horses, and got in front of them and was injured. But she was not chargeable for not taking the most prudent course. The driver (upon the version of the transaction given by the boy) produced by his own conduct that condition of mind in the child which deprived her even of that small degree of judgment which a child of four years of age may be supposed to possess. She tried to save herself from a danger which she might reasonably anticipate, but did precisely the wrong thing. Her mistake, however, does not deprive her of remedy, provided the jury should find that the driver was guilty of negligence. We express no opinion as to that fact, and what hks been said bears only upon the point whether the case should have been left to the jury.

The nonsuit was placed exclusively upon the ground that there was no negligence on the part of the driver. The point of contributory negligence of the parents in permitting the child to be in the street was not passed upon by the court. Under the circumstances proved, that fact was also, we think, for the jury.

The judgment below should be reversed and a new trial ordered, with costs to abide the event.

All concur, except Finch, J., absent.


author: Haight, J.

text:
    Annie B. Lyon, App’lt, v. The Industrial School Ass’n of Brooklyn, E. D., Resp’t.

      (Court of Appeals, Second Division,

      Filed June 25, 1891.)

    1. Wills—Legacy—Interest on, when allowed.
    When there is a legacy to a minor child, or to an infant, as to whom , the testator is in loco parentis, and such legatee has no other provision nor any maintenance, in the mean time, allotted by the will, the legacy, although payable at a future day, carries interest from the death of the testator.
    2. Same.
    It is sufficient for the operation of this rule, that the testator has voluntarily assumed, in reference to the legatee, such a relation similar, in some respects, to that of parent, that it may be presumed that he did not intend to leave the legatee without support.
    Appeal from a judgment of the supreme court, second department, entered upon a submission of a controversy made pursuant to § 1279 of the Code of Civil Procedure.

      John A. Taylor, for app’lt; Joseph A. Burr, Jr., for resp’t.

       Affirming 24 N. Y. State Rep., 443.

   Haight, J.

The plaintiff was a niece of Bliphalet Lyon, and at the age of eight weeks was, with the 'consent of her father, taken into the family of Bliphalet Lyon and wife, where she continued to reside and be supported until the death of Mrs. Lyon on the 27th day of April, 1873. Mrs. Lyon left a last will and testament, which has been duly proved and admitted to probate in the office of the surrogate of the county of Kings. The will, among otjher things, provides:

“ I give and devise to my adopted daughter, Annie Lizzie Lyon, . the sum of five thousand dollars, to be paid over to her when she shall have arrived to the age of twenty-five years. All the rest, residue and remainder of my real and personal estate, I bequeath to my beloved husband, Bliphalet Lyon, to have and, hold for his own use and benefit during his natural life, and upon his death the same to be given to the Industrial School Association of Brooklyn, eastern district, to be applied to the uses and purposes of said association.”

She appointed her husband sole executor of her will. After her death he entered into and- took possession of her entire estate, both real and personal, saving only the other legacies provided for in the will, and continued in the use, possession and enjoyment of the same and of all the rents, profits, interests and income thereof until his death, which occurred on the 23d day of March, 1883. Since his death the defendant has accepted and been in the possession and enjoyment of the entire estate of the testatrix. After the death of Mrs. Lyon the plaintiff was supported by Mr. Lyon until his death, who, by his last will and testament, gave her upwards of $10,000. The father of. the plaintiff is still living. He has never formally surrendered his parental rights or control of the plaintiff nor been released from his parental obligations to her, but has never contributed to her support since she was taken by Mr. and Mrs. Lyon with his consent The plaintiff arrived at the age of twenty-five years on the 27th day of August, 1888.

■ The question presented upon this controversy is, whether the plaintiff is entitled to interest upon the legacy given to her by Mrs. Lyon.

It will be observed that the will does not in express terms provide for the payment of interest nor does it create a trust If, however, it is apparent that it was the intention of the testatrix that the plaintiff should have interest, it is the duty of the court to so decree. The general rule is that when a time is specified in the will for the payment of a legacy and there is no direction as to interest, the legacy will carry interest only from the time it is payable. Thorn v. Garner, 113 N. Y., 198; 22 N. Y. State Rep., 692; Van Rensselaer v. Van Rensselaer, 113 N. Y., 207; 22 N. Y. State Rep., 947 ; In Matter of Accounting of McGowan, as Ex'r, etc., 124 N. Y., 526; 36 N. Y. State Rep., 686.

But to this rule there is an exception,' and it is well stated by Earl, J., in the case of Brown v. Knapp, 79 N. Y., 136-141. He says: “When there is a legacy to a minor child or to an infant as to whom the testator is in loco parentis and such legatee has no other provision nor any maintenance in the mean time allotted by the will, the legacy although payable at a future day, carries interest from the death of the testator. This rule is based upon the presumption that the testator in such case must have intended that the legatee should in the meantime be maintained at his expense, thus discharging his moral obligation or carrying out his benevolent design. It is not needed for the application of this, rule that the testator must have been under a legal obligation at the time of his death to support the legatee. Such obligation of a testator to support his own child continues only during his life.

“ It is sufficient for the operation of this rule that the testator has voluntarily assumed in reference to the legatee such a relation similar in some respects to that of parent, that it may be presumed that he did not intend to leave the legatee without support.”

In that case the testator had bequeathed to his grandsom the sum of $3,000, to be paid to him when he shall have attained the age of twenty-one years. The father of the legatee had entered the military service of the United States and died in such service. Before entering such service the testator had said, to him that if he never returned, his wife and son would always be cared for. After the death of the legatee’s father, the testator took him and his mother to live with him and supported them until his death. It was held that he was entitled to interest upon his legacy from the death of the testator. See, also, Acherley v. Wheeler, 1 P. Wms. Rep., 783 ; Hill v.Hill, 3 Vesey & Beames, 183 ; Donovan v. Needham, 9 Beavan, 164; Rogers v. Soutten, 2 Keen, 598; Lupton v. Lupton, 2 John. Ch., 614 ; Keating v. Bruns, 3 Dem., 233; Neder v. Zimmer, 6 id., 180; In the Matter of Goble, 30 N. Y. State Rep., 944.

At the death of the testatrix the plaintiff was an infant of but ten years of age. It does not appear that she possessed other estate. The will makes no other provision for her maintenance during her minority. Although she was not formally adopted, the testatrix had treated her as her child and assumed towards her the relation of a parent So far the plaintiff is brought within the exception to the general rule to which we have called attention. But there existed other facts which, to our minds, had an important bearing upon the intention of the testatrix. As we have seen, the testatrix’s husband was the uncle of the plaintiff. She was taken into his family and supported and cared for by him until his death. He had voluntarily assumed towards her the relation of a parent It is evident that he was a man of property, from the fact that he made her a legatee under his will, and that she received upwards of $10,000 from his estate. The testatrix, knowing of the relation that existed between her husband and the plaintiff and of his ability and intention to care for and support her, may very properly have entrusted her to his care without intending that the interest upon the legacy bequeathed to her should be paid for that purpose.

For these reasons we conclude that interest was not payable upon the legacy until the plaintiff arrived at the age of twenty-five years. The judgment should be affirmed, with costs.

All concur.


author: Potter, J. Haight, J. (dissenting.)

text:
    Phoebe A. Greene, Resp’t, v. Peter Couse, App’lt.

      (Court of Appeals, Second Division,

      Filed June 25, 1891.)

    Ejectment—Adverse possession—Estoppel—Fortifying title by buying OFF THOSE ATTACKING IT.
    Alexander Couse, being in possession of the lands in question under a deed from his father, given in 1849, plaintiff and others brought actions in ejectment, and on March 5,1875, an agreement was entered into by which the actions were settled,and Couse agreed to purchase their interests for $400 he to give anote and they to deliver the deed upon the payment of the note. It was never paid, and a judgment was obtained upon it. Couse afterward quit claimed tbe premises to his son, the defendant, in 1882, who claims to hold the same adversely. The court refused in an action of ejectment to allow evidence of the adverse possession to be given, holding that he was estopped by the agreement, note, etc. Held, error; that defendant and his grantors were at liberty, plaintiffs never having been in possession, and defendant’s possession having ripened into title in 1875, to fortify the title or purchase peace at any price and of whomsoever he chose.
    (Haight and Parker, JJ., dissenting.)

      This is an appeal from a judgment of the general term, fourth department, affirming a judgment entered upon a verdict directed at the circuit.

      James B. Baumes, for app’lt; W. & G. W. Youmans, for resp’t.

       Reversing 48 Hun, 617, mein.

   Potter, J.

The action is ejectment, and was brought to recover possession of an undivided one-twelfth part of the premises described in the complaint The answer was a denial of the complaint, also title in the defendant, arising from adverse possession of the premises for more than twenty years and a counterclaim.

The premises as claimed in the complaint consist of 120 acres in the northwest corner of the east half of Great Lot, No. 24, Evans Patent, in Delaware county.

It was stipulated by the defendant, for the purpose of this appeal, that the plaintiff showed title in herself as one of the heirs-at-law of Martha Bradstreet, deceased, to an undivided one-twelfth of the premises in question, except as such title may have been defeated by the adverse holding of the defendant herein and his predecessors, or parted with by force of the agreement of date March 5, 1875, hereinafter set forth.

The plaintiff proved and read in evidence an instrument, of which the following is a copy:

“ Received from A. Crouse his note of $400 for the purchase price, with costs of suits, of an undivided two-thirds interest in 100 acres in the northwest corner of Great Lot 24 Evans Patent, known as the wild lot, and being the same premises claimed to have been occupied by the said Couse for some years past, and I agree to forward to said Couse, by mail, within ten days, a deed therefor.
“W. Youmans,
“ Attorney for Bradstreet Heirs.
“Dated Delhi, N. Y., March 5, 1875.”

Proved that the land therein mentioned was that in dispute ; also gave evidence that the note had not been paid, and the recovery of a judgment upon the note which had not been paid.

The defendant examined his grantor at considerable length to prove the defense of adverse possession of the premises, and that the defendant entered into the possession under a deed' from his father, Alexander Couse, in 1882, who entered into the possession of the premises in 1849, under a deed from his father, Peter Couse, Sr., who some years before entered into possession under a written title from Joseph Nutter, and that such occupation had been continuous for over forty years, and none of the occupants had entered into possession under plaintiff, or any one from whom plaintiff derived title, and was proceeding with the examination of other witnesses upon that subject when the court ruled as follows:

“ The Court — I think I must stop this evidence ; you must make some other defense than the statute of limitations, or I must direct a verdict against you. The more I think of this question, the more I think the statute of limitations cannot prevail here.” Defendant’s counsel duly excepted to such rulings and decisions. “ The court rules that under the contract of March 5, 1875, and the note of $400 given therefor, and the various stipulations and contracts in connection with that, that this defendant has lost his right to avail himself of the adverse possession of himself and of his predecessors, and declined to receive any further evidence of occupation and of adverse possession by the defendant and his predecessors.” To which ruling and decision the defendant’s counsel duly excepted.

After some additional evidence upon the part of the plaintiff in relation to a subsequent arrangement as to the time and condition of delivery of the deed and payment of the purchase price, the court directed a verdict for plaintiff, to which defendant excepted.

When the defendant was thus precluded from giving further evidence on the subject, that already given tended to prove title by adverse possession in the defendant’s grantor at the time such instrument of March 5, 1875, was made. And there was presented a question of fact for the jury in that respect. And title so established may be as effectual as that created in any other manner for the purposes of remedy or defense founded upon it. Barnes v. Light, 116 N. Y., 34; 26 N. Y. State Rep., 654, and cases there cited.

Upon this state of facts 'the question is presented whether the defendant should have been precluded or estopped from proving the defense of title to the premises by adverse possession.

The plaintiff and Alexander Couse, at the time such contract was made, respectively claimed to be the owner of the premises. And for the purposes of the question, it may here be assumed that Alexander Couse and his grantor had been in the actual and continuous possession of the premises for forty or more years, and the plaintiff, and those under whom she claimed, had not during that period, if ever, been in the actual possession, and that the said defendant, nor any of his grantors, had ever entered into or retained possession of the premises with any permission of or privity with the plaintiff or her predecessors in title.

In the absence of any of these relations, the defendant and his grantors owed no duty or obligation to the plaintiff, and was therefore at liberty to fortify his title or purchase peace at any price, and of whomsoever he chose.

If, however, the adverse possession of the defendant’s grantor and those under whom he entered and claimed had not ripened into a title at the time the contract of March, 1875, was made, the right to assert the-continuance thereafter of such possession to perfect and support title as against the plaintiff would have been defeated by it.

I am aware of the rule that where a lessee or vendee enters into possession of premises under a lease or contract he cannot while he remains in possession dispute the title of the lessor or vendor, but this case is lacking in the essential element which creates such estoppel Neither the defendant or his grantors entered into the possession by any manner of consent or contractual relation with, the plaintiff or her ancestors or grantors. The rule in relation to estoppel does not apply “ where at the time of the purchase the vendee is in possession as owner, claiming title, and his entry was not under the vendor.” Glen v. Gibson, 9 Barb., 634-640. “ Where a man is in possession of land as owner having title, he is at liberty to purchase the land over again as often as claimants shall appear who are not in possession, and thus quiet such claims and fortify his title without being estopped from disputing the title of such subsequent vendors, should it afterwards become necessary for him to do so." Jackson v. Leek, 12 Wend., 105; Bain v. Matte-son, 54 N. Y., 666.

Even in a consummated purchase the grantee in fee may purchase in an outstanding title hostile to his grantor and fortify his own defective title. Kenada v. Gardner, 3 Barb., 589.

In Watkins v. Holman, 16 Peters, 54, it is said by the court in discussing such relations that “ the relation of landlord and tenant in no sense exists between vendor and vendee.”

Judge Bronson in delivering the opinion of the court in Osterhout v. Shoemaker, 3 Hill, 513-518, says: “The grantee takes the land to hold for himself and to dispose .of at his pleasure. He owes no faith or allegiance to the grantor, and he does him no wrong when he treats him as an utter stranger to the title.”

These views lead to the conclusion that the exceptions before mentioned were well taken and require a new trial.

Judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Haight and Parker, JJ., dissenting, and Follett, Ch. J., not sitting.

Haight, J. (dissenting.)

This is an action of ejectment to recover an undivided one-twelfth part of the lands described in the complaint. The defense is adverse possession.

It appears by the stipulation of the parties that “the plaintiff showed title in herself as one of the heirs at law of Martha Bradstreet, deceased, to an undivided one-twelfth of the premises in question, except as such title may have been defeated by the adverse holding of the defendant herein and his predecessors, or parted with by force of an agreement between W. Youmans, attorney for the Bradstreet heirs and Alexander Couse, dated March 5th, 1875.”

It appears that on the 2d day of January, 1874, one Alexander Couse was in possesion of the lands in question, and that on that day the plaintiff with others known as the Bradstreet heirs brought actions through W. Youmans, their attorney, against him, in ejectment for the lands in question; that thereafter and on the 5th day of March, 1875, an agreement was entered into between the parties by which the actions were settled and discontinued, he agreeing to purchase the interests of the plaintiffs in the premises at a stipulated price giving his note therefor, and they agreeing to deliver him a deed therefor within ten days. This agreement was subsequently modified so as to provide that the deed should be delivered upon the payment of the note. The note, although long past due has never been paid. It further appears that on the 7th day of February, 1882, Alexander Couse quit-claimed the lands in question to his son, the defendant in this action, who thereupon entered into possession and now claims to hold the same adversely to the plaintiff. The question thus presented for review is as to whether he can avail himself of that defense.

I shall not question the doctrine that one holding adversely and defending upon that ground may purchase of a third person an outstanding title to support his own whether he doubts the validity of his previous title or not, and that such' purchase will not affect his right to defend under his claim of adverse possession, but a very different question is presented by the facts under consideration.

As we have seen, the plaintiff’s record title is conceded. In 1874 she brought an action in ejectment to recover the possession of the premises or of her interest therein, and that action was settled and discontinued, the defendant therein agreeing to purchase her interest in the premises. By such settlement and agreement the defendant in that action not only admitted and recognized her title and right to recover, but also waived his right or claim of adverse possession, and his possession in the premises thereafter must be deemed to be under the contract of purchase. By such agreement the plaintiff was induced to discontinue her action, and thus forego the establishing of her title by judicial decree. This action was brought eight years afterwards, and if the defendant is now permitted to avail himself of the defense of adverse possession, he may now be able to prove and establish that which he could not have done eight years ago. He may thus be permitted to establish a defense in consequence of the agreement and a breach thereof which could not have been maintained had the settlement and agreement not been made. This cannot be allowed under the well settled principles of estoppel. The agreement placed the plaintiff in a position where she could not maintain an action to oust the defendant’s grantor until he had made a breach in his contract to purchase. The defendant gets no greater or better title than his father had, and if the' defense was not available to the father it would not be to the son. There is no claim of fraud or deception in making the contract.

Sedgwick and Wait, in their treatise on Trial of Title to Land, at § 317, say: “When a person in possession of lands covenants with another to pay him for the land, he thereby acknowledges the title of the vendor, and is estopped from setting up an outstanding title, or title in himself, unless he can show that he was deceived or imposed upon in making the agreement”

In Jackson v. Ayers, 14 John., 224, where the defendant was in possession of land and had agreed with the plaintiff to purchase and pay him therefor, it was held in a subsequent action of ejectment that the defendant was estopped from setting up a title by adverse possession in himself.

In the case of Jackson v. Britton, 4 Wend., 507, it was held that whilst an offer to purchase land by a party having title does not impair or affect his right, it however bars the defense of adverse possession.

In Corning v. The Troy Iron & Nail Factory, 34 Barb., 485-489, Hogeboom, J., in delivering the opinion of the court, says: “ Nor could they during the same period continue an adverse possession previously commenced. By taking a lease from the DeFreests they acknowledged their title and right to convey. They held under their title and recognized it as the true title. They must be deemed to have waived any previous imperfect rights which they had already acquired under a prior incipient adverse possession. The doctrine of cumulative disabilities does not apply. The defendants are prevented from setting up during this period an adverse possession, not for the reason that they could not purchase an outstanding title for the purpose of perfecting their right or quieting their possession, but because by taking a lease from the DeFreests they have placed the latter under a disability in a position where they cannot take proceedings to oust the defendants, and of course where the statute of limitations should not be permitted to run against them. It would seem, therefore, entirely clear that as this lease did not expire until 1852 the defendants cannot avail themselves of the defense of adverse possession.”

In Jackson v. Cuerden, 2 Johnson’s Cases, 353, the defendant wrote a letter to one Mary Clark, the plaintiff’s lessor, in which he offered to purchase of her lands of which he was then in possession. Subsequently and in an action of ejectment he offered to give evidence of more than twenty years adverse possession in himself. This was excluded by the trial judge. On review it was held that the letter of the defendant was sufficient prima facie for the plaintiff to recover; that whilst the defendant was not precluded from showing that he grounded his letter on a mistake he was precluded from setting up adverse possession or the statute of limitations; that the acknowledgment in his letter takes away the statute. See, also, Jackson v. Spear, 7 Wend., 401; Fosgate v. Herkimer Manufacturing & Hydraulic Company, 12 Barb., 352-356; Tompkins v. Snow, 63 id., 525-533; Jackson v. Walker, 7 Cowen, 637-642; Sayles v. Smith, 12 Wend., 57; Ingraham v. Baldwin, 9 N. Y, 45-47; Smith v. Babcock, 36 id., 167-168; McMath v. Teel, 64 Georgia, 595; Garlington v. Copeland, 32 South Carolina, 57-67; 7 Am. & Eng. Encyclopedia, 32, title “ Estoppel.”

As we have seen, the suits were settled and discontinued, and this furnished a good consideration for the agreement which thenceforth became binding upon the parties. Their rights were fixed by it and the party in default- cannot now go back and litigate questions that were disposed of in the settlement

Again, it appears that an action was brought upon the note given by Alexander Couse, and that he interposed the defense that it was given for the purchase price of the lands in question, and that the plaintiff had committed a breach of the contract in failing to deliver the deed in accordance with the terms of the contract. Upon this issue the plaintiff had judgment, thus forever disposing of the facts that the contract of purchase was made and that there was no breach thereof oil the part of the plaintiff.

The judgment should be affirmed.

Parker, J., concurs.

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


text:
    Willis B. Sayre, Resp’t, v. The People of the State of New York, App’lts.

      (Court of Appeals,

      Filed June 25, 1891.)

    Board of claims—Practice—Appeal.
    Where the court of appeals modifies an award of the board of claims by simply increasing it, the new amount stands in the place of the old as of the same date and the modified award bears interest from the same date as the original award.
    Appeal from a judgment of the board of claims.

      Chas. F. Tabor, att’y-gen’l for app’lts; Gabriel L. Smith, for resp’t.
   Per Curiam.

The original award in this case was $3,000, and it was made March 9, 1886. Upon appeal from that award to this court, we modified it by increasing it to $8,136, and affirmed it as thus modified, with costs. The remittitur from this court was sent down to the board of claims, and thereupon the board made new findings of fact and of law, and awarded to the claimant $10,657.55, which was made up of the $8,136, the interest thereon to the date of the award and the costs of the prior appeal. The attorney-gen eral filed exceptions to this award, and then brought this appeal therefrom to this court.

The practice since the remittitur was sent down from this court, has been quite irregular. Upon the prior appeal, we simply modified the prior award by increasing it. We made no other alteration, not even changing the date. The effect of our decision 'was, that the $8,136 should stand in the place of the $3,000 as of the same date. There was the same award simply increased. The modified award would bear interest from the same date as the original award. If the claimant would have been entitled to interest upon the original award, he becomes entitled to interest upon the modified award from the same date. Upon the prior remittitur from this court, the prior award, without altering its date, must be increased to $8,136, and the claimant must have his costs of that appeal, and if then the financial officers of the state refuse to pay interest upon the award from its date, the claimant must take his remedy by mandamus, or by filing a new claim with the board of claims for his interest The question of interest will doubtless be disposed of in the same way as is usual with other awards made by the board of claims. That question is not before us now, and we make no determination in reference thereto.

The award appealed from must be reversed, with costs of appeal to be paid by the claimant

All concur, except Finch, J., absent


author: O’Brien, J.

text:
    William A. Sweet, App’lt and Resp’t, v. The City of Syracuse et al., Resp’ts and App'lts.

      (Court of Appeals,

      Filed June 25, 1891.)

    1. Constitutional law—Laws 1889, chap. 291, § 18, as amended 1890, chap. 314.
    The prohibition of § 11 of article 8 of the New York constitution limiting the power of cities of over 100,000 inhabitants to contract debts and issue money obligations, does not apply to the Laws of 1889, chap. 291, as amended, which authorized the taking by the city of Syracuse of water “not required for the canal,” and the issuing of bonds to meet the expense thereof.
    2. Same—Title op act.
    Neither does said law offend against § 16 of article 3 of the constitution. Under the title ' ‘ an act to establish and maintain a water department in and for the city of Syracuse,” the legislature could properly insert, not only every provision necessary for the organization of such a department as an official body, but also provisions conferring power upon that body to supply the city and inhabitants with water.
    3. Same.
    Nor is § 18 of said act as amended in 1890, which allows the water board to take water from Skaneateles lake, in conflict with § 6 of article 7 of the constitution, which provides that the legislature shall not sell, lease or otherwise dispose of the Erie and certain other canals.
    4. Same—Canal—Use of water op feeder by city.
    A statute permitting a city to draw for its own use from a lake used for feeding the canal, water which the state does not need for the use of the canal, is not inconsistent with the integrity of the canal system, as a highway of commerce, nor is it in conflict with the constitution.
    5. Same—No property in flowing water.
    This is not an appropriation of public property to a local purpose, so as to be invalid by reason of the absence of the requisite two-third assent of the legislature under § 9 of art. 1 of the constitution. The state has no property in the flowing water of the lake, although it did acquire the right to divert and use it in such quantities as was necessary for the use and operation of the canal.
    Appeal from judgment of the supreme court, general term, fourth department, denying motion for, new trial and ordering judgment for defendant on the verdict.

      Charles H. Peck, for pl’ff; C. L. Stone, for def’ts.

       Reversing 38 N. Y. State Rep., 607.

   O’Brien, J.

The plaintiff, a taxpayer of the city of Syracuse, brought this action, under the provisions of § 1925 of the Code of Civil Procedure as supplemented by chap. 531 of the Laws of 1881 and chap. 673 of the Laws of 1887, against the city, the mayor thereof, the members of the common council and the water board to perpetually restrain them from carrying into effect or exercising any of the powers conferred by chap. 291 of the Laws of 1889, entitled “ An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chap. 314 of the Laws of 1890. It is alleged that the defendants are without power to perform the various acts and functions specified in this statute for the reason that it is in conflict with certain provisions of the state constitution, and also that it was not legally enacted, not having received the assent of two-thirds of the members of both houses of the legislature; and that the execution thereof by the defendants would involve a culpable waste of the municipal funds and property. The special term held that the act was valid and dismissed the complaint. The general term held that § 18 was invalid and modified the judgment accordingly, which has all the effect substantially of a reversal and a decision in favor of the contention of the plaintiff. Both parties appeal from the judgment as thus modified, the plaintiff because the judgment of the trial court was not wholly reversed, and the defendants because it was, in any. respect, modified. The act authorized the mayor to appoint a board of water commissioners to constitute the water board. This board was authorized for and in the name of the city to acquire, construct, maintain, control and operate a system of water works to furnish the city and its inhabitants with water from Skaneateles lake, and to acquire all lands, waters and other property necessary for this purpose.

The power to exercise the right of eminent domain was conferred, and the procedure provided for. For the purpose of defraying the expenses of the work, power was given to issue and sell the bonds of the city, whenever the board considered it necessary, to an amount not exceeding $3,000,000,' all payable July 1, 1920, with interest payable semi-annually, but no sinking fund was provided for. The eighteenth section, as amended in 1890, and which was pronounced invalid, authorized the board, under the conditions and restrictions thereinafter mentioned, to take and conduct water not required for the Brie canal from Skaneateles lake to the city, through a pipe or main not exceeding thirty inches in diameter, for the purpose of supplying the city and its inhabitants with water. But before taking any water from this source, the board was required, at the cost and expense of the city, to increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its water shed; the fact of such reconstruction for increased storage of the water to be certified by the state engineer and the superintendent of public works, and filed in the office of the last-named official. The plans and specifications for all this work were to be prepared or approved by the state engineer, and all the work executed under the direction, supervision and control of the state superintendent of public works, under whose exclusive charge and control the dam, and all structures connected therewith, together with the regulation at all times of the flow of water from the lake into the pipe were to remain ; all necessary repairs to be made under his direction at the expense of the city. He was authorized and required if, for any reason, the flow of water into the pipe, impaired the necessary and sufficient supply for the use of the Brie canal, to stop such flow, in whole or in part, whenever, in his judgment, it was necessary in. order to secure a full supply for the canal. The rights of the city in and to the use of the surplus waters of the lake conferred by the act, were expressly declared to be, at all times, subject to the superior claims of the state thereto, and power was given to the state engineer to prescribe the plan of construction of the gate house, or other means, for delivering the water of the lake into the pipe. It was further provided that the city should, at all times, protect and save the state harmless from and against all claims and demands of riparian owners, upon the lake and outlet, for loss or damage occasioned by any act or structure authorized by the statute, and that before any water was taken from the lake the city should acquire or extinguish all water power rights upon the outlet to be affected by the proposed storage of water, and, subject to these restrictions, general power was given to the board to perform all acts and acquire all property necessary or proper to enable the city to store and obtain water from the lake. It appears from the findings that Skaneateles lake is a body of water distant about seventeen miles from Syracuse. Its length is about fifteen miles, and its general width about one mile, with a surface area of about thirteen square miles and a water shed, including the surface, of seventy-three and one-fourth square miles. It is about 453 feet above the Jordan level of the Erie canal, and discharges its water through an outlet known as Skaneateles creek, about ten miles long, into the Seneca river, thence into the Oswego river and into Lake Ontario. The lake has been for many years navigated by steamboats and other crafts, but there is no navigable communication between it and any other waters.

The controversy between the parties requires this court to pass upon the validity of an act of the legislature. The principles governing such an inquiry were well stated by Huger, Ch. J., in The People v. Angle, 109 N. Y., 567; 16 N. Y. State Rep., 647 : Within settled rules it requires a case to be made showing clearly that the statute, when fairly and reasonably construed, is brought into conflict with some provision of the constitution before the court can be justified in pronouncing it an unauthorized expression of the legislative will. If the act and the constitution can be so construed as to enable both to stand, and each can be given a legitimate office to perform, it is the duty of the court to give them such construction; but if this cannot be done, it is equally our duty to declare the supremacy of the constitutional provision and the nullity of the statute. While every presumption is in favor of the constitutionality of the law, if, nevertheless, it appears that its enforcement must necessarily produce a conflict with the letter or spirit of the constitution, it is the duty of the court to condemn the law.”

The bonds of the city which this statute authorized the board to issue had more than twenty years to run, and, as already observed, no sinking fund was provided for. The plaintiff contends that, for this reason, the act violates § 11 of art. 8 of the constitution, which limits the power of certain cities to contract debts and issue money obligations. This section does forbid the creation of any debt by any city except for city purposes, and this is the only restriction which the constitution imposes upon the power of the legislature to authorize cities not containing a population of over 100,000 inhabitants to incur indebtedness. Ho city can give any money or property, or loan its money or credit to or in aid of any individual or corporation, or become the owner of stock in or bonds of such corporation. These prohibitions are general and applicable to all cities alike, without regard to population. A further restriction upon the-power to create debts given for city purposes is also placed upon cities containing over 100,000 inhabitants, which the plaintiff invokes to nullify the statute in question. As it is conceded that Syracuse contains less than 100,000 population, and as it is obvious that the bonds to be issued for a water supply is a city purpose, we are clear that the prohibition does not apply to the statute under consideration.

The first two paragraphs of the section, as it now stands, were adopted in 1874, and they apply to all cities, but exclude from the restrictions upon the power to create debts such obligations as are given for municipal purposes. The remainder of the section was adopted in 1884, and does impose restrictions upon the power to create debts and levy taxes even for city purposes, but these restrictions, as already observed, are limited to cities of more than 100,000 inhabitants, and to counties containing such a city. In giving construction to a provision of the constitution, its history and the conditions and circumstances attending its adoption must be kept in view, and the effect of subsequent amendments are determined by the same rules applicable to the interpretation of statutes. People v. Angle, supra.

The general policy of the state to restrict the power of cities and villages, in respect to the power of taxation, borrowing money and contracting debts indicated in § 9, article 8 of the constitution as adopted in 1846, and chap. 603 of the Laws of 1853, has found expression, with the exception above referred to, only in acts of the legislature, mostly incorporated into the charters of particular municipalities, and, occasionally, by some act of a more general character, all of which are, of course, subject to modification or repeal. Neither this policy nor the necessity which may be conceded for restraining in this respect the smaller as well as the larger cities would warrant us in declaring an act of the legislalature, authorizing the city of Syracuse to incur a debt of $3,000,-000 for the purpose of a water supply, invalid. Nothing short of a constitutional prohibition would justify such a result, and this we cannot find in the section referred to, either in express words or by fair and reasonable construction.

The act does not offend against § 16 of article 3 of the constitution, which provides* that no local or private bill shall embrace more than one subject, and that shall be expressed in the title. The title of the bill in question is “ An act to establish and maintain a water department in and for the city of Syracuse. ” Under this title the legislature could properly insert, not only every provision necessary for the organization of such a department as an . official body, but also provisions conferring power upon that body to supply the city and the inhabitants with water. It could create the department and, in the same bill, prescribe its powers and duties with such particularity and detail as in its judgment might be deemed necessary, without offending against this clause of the constitution. It is necessary that the title be such as to fairly suggest or give clue to the subject; but when that is expressed, all matters fairly and reasonably connected with it and all measures which will or may facilitate its accomplishment are proper to be incorporated in the act and are germane to the title. Astor v. Arcade R. Co., 113 N. Y. 93, 110; 22 N. Y. State Rep., 1.

None of the provisions of the act are of such a character that it can properly be said that the public, or the members of the legislature, were or could have been deceived by the title in regard to the details. Power to conduct water through pipes from reserviors to be constructed, and to distribute the same to the city and its inhabitants, could fairly be anticipated among the provisions of an act with such a title. The authority conferred upon the board by the statute is, we think, fairly within the scope of the subject as expressed in the title. City of Rochester v. Briggs, 50 N. Y, 553 ; Cooley on Con. Lim., 172 ; Wrought Iron Bridge Co. v. Town of Attica, 119 N. Y, 204 ; 28 N. Y. State Rep., 973 ; In Matter of Mayor, etc., 99 N. Y., 569.

The important provisions of the bill are to be found in § 18, as amended in 1890. There it is that the legislature attempted to confer power upon the water board to take water from Skaneateles lake and it is contended, in behalf of the plaintiff, that this section is in conflict with § 6 of article 7 of the constitution, which provides that the legislature shall not sell, lease or other-' wise dispose of the Erie and certain other canals; “but they shall remain the property of the state, and under its management forever.”

In the year 1843 the canal board by the authority of the statutes appropriated the lake for the use of the canal. The resolution of the board, which accomplished this result, is as follows:

Resolved, that the waters of the.Skaneateles lake and the outlet of the same, be, and they are hereby, appropriated to the use of the public for a reservoir and feeder to the Erie canal.”

To carry this resolution into effect lands were taken at the foot of the lake which included the dam and water rights at that point. This dam, nine feet high, has ever since been maintained by the state and the flow of water into the outlet is regulated by the use of gates in the dam, which, since the appropriation, have been under the control and management of an employee of the state. About nine miles below, at the village of Jordan, another dam had been constructed across the outlet, by means of which a < portion of the water from the lake is discharged into the canal. An aqueduct constructed under the canal permits the flow of that part of the stream, not used for canal purposes, beneath the canal, through its natural channel, on to the Seneca river, which is but a short distance from this point. Between the lake and the canal numerous mills are situated along the outlet, being supplied with power from the running water, and these are some of the water rights referred to in the statute which the city is bound to purchase or extinguish. During the time, in every years, when the canals are closed, a volume of water has been permitted to flow through the gates of the dam at the foot of the lake for the use of the mills along the outlet, except for several periods in different years, when the water was held back in order to increase the storage or for the purpose of repairs. The court below found that the quantity of water thus ordinarily permitted to flow was about 50,000,000 gallons per day, which has never been utilized by the state for canal purposes. The carrying capacity of the thirty-inch pipe, authorized by the act to be laid, is found to be 15,000,000 gallons per day, and that quantity drawn per day would be equivalent in one month to two inches in depth froni the surface of the lake. We think that the permission given by this act to the city of Syracuse to take water from the lake not required. for the use of the Erie canal, is not in conflict with that provision of the constitution which forbids the sale of the canal and secures its ownership and management to the state forever. Applying a fair and reasonable construction to this limitation, the statute is not within either its letter or spirit. The management of the canal must under this.provision devolve upon the legislature and such officers of the state as are charged with duties in that regard by the constitution. This power of management implies discretion in many matters of detail. What the framers of the constitution intended by this provision was that the canal as a highway of communication should not be sold or leased, but remain the "property of the state and forever under its management, in order to promote the commercial prosperity of the people. Within the water shed of the canal, from the Hudson river to the lakes, there had been appropriated to the use of navigation the waters of numerous streams, small lakes and ponds, as feeders and reservoirs for the canals. The use of these waters by riparian owners and even by cities that have grown up upon the line of the canal, for domestic or manufacturing purposes, subject to the paramount rights of the state, is entirely consistent with the public use to which they had been devoted, and this must have been contemplated when the appropriation was made.

A statute, therefore, permitting a city to draw from one of these lakes, for its own use, water which the state does not need, for the use of the canal, is not inconsistent with the integrity of the canal system, as a highway of commerce, nor is it in conflict with the constitution. In regard to all these objections, urged against the validity of the statute, we have no difficulty in agreeing with the reasons and conclusions of the general term. That court, however, found that the statute was invalid under another provision of the constitution. Article 1, § 9, provides that the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The trial court found and it is conceded that neither the original act of 1889, nor the amendment of 1890, received the vote of two-thirds of the-members elected to each house. The general term has held that, for this reason, the eighteenth section, as amended in 1890, was never legally enacted.

This brings us to the question whether the bill or any part of it was, in fact, one appropriating public property for local or private purposes, within the meaning of this provision of the constitution. There is no doubt that the state, in some sense, has a certain property right in Skaneateles lake and its outlet. Lands, appropriated by the canal authorities for the use of the canal under the statute, are held by the state in fee. Heacock v. State, 105 N. Y., 248; 7 N. Y. State Rep., 353 ; Mark v. State, 97 N. Y, 572; Rexford v. Knight, 11 id., 308. But it was not land, as such, that the state appropriated in this case but water. It becomes important therefore to determine the nature and quality of the right or interest which the state acquired in the waters of the lake and outlet. It is a principle recognized in the jurisprudence of every civilized people, from the earliest times, that no absolute property can be acquired in flowing water. Like air, light, or the heat of the sun, it has none of the attributes commonly ascribed to property, and is not the subject of exclusive dominion or control.

As Blackstone observes (2 Blk. Com., 18), "‘Water is a movable, wandering thing, and must, of necessity, continue common by the law of nature; so that I can have only a temporary, transient, usufructuary property therein.” While the right to its use, as it flows along in a body, may become a property right, yet the water itself, the corpus of the stream, never becomes, or in the nature of things can become, the subject of fixed appropriation or exclusive dominion, in the sense that property in the water itself can be acquired, or become the subject of transmission from one to another. Neither sovereign nor subject can acquire anything more than a mere usufructuary right therein, and in this case the state never acquired, or could acquire, the ownership of the aggregated drops that composed the mass of flowing water in the lake and outlet, though it could and did acquire the right to its rise. These propositions have been often stated by jurists, and in judicial decisions in different forms, but it is believed that they all concur in the same general result. Smith v. City of Rochester, 92 N. Y, 475; Clinton v. Myers, 46 id., 516; Pixley v. Clark, 35 id., 524; Mayor v. Commissioners of Spring Garden, 7 Penn. St., 348; Tyler v. Wilkinson, 4 Mason, 397; Liggins v. Inge, 7 Bing., 682 ; Kensit v. Great Eastern Rwy. Co., L. R., 23 Ch. Div., 566; L. R, 27 id., 122; People v. N. Y. & M. B. Rwy. Co., 84 N. Y., 568; Pufendorf Laws of Nature and Nations, Book 4, chap. 5; Mattel Lib., 1, chap. 20, § 234; 2 Bl. Com., p. 14; 3 Kent Com., 439, 440; Gould on Waters, §§ 204-209. The only property right, therefore, which the state acquired or ever had in the waters of Skaneateles Lake and its outlet, is the right to divert and use the same in such quantities as may be necessary for the use and operation of the canal. Silsby Mfg. Co. v. State, 104 N. Y., 562; 6 N. Y. State Rep., 463.

Subject to this paramount right, the riparian owners may use the waters of the lake and stream for domestic or manufacturing purposes, and the public as a highway for boats and other craft. We think that the conditions of the grant to the city of Syracuse are such that no property right or interest, which the state has or ever had, is transferred, lost or impaired. After all the provisions of the statute are executed, the state will possess and enjoy every right, with respect to those waters, that it did before, and, if this is so, then no public property is transferred by the act from the state to the city.

The same result will follow if it be assumed that the state still retains its original proprietary right to the waters and- the bed of the lake. As such proprietor simply it would have no greater right to use or divert the water than any other riparian owner. Its paramount right to so use and divert it is not derived from its original ownership but from the exercise of the right of eminent domain. The rights thus acquired are broader than any that it possessed or could exercise as proprietor. It is not found that it has any other property in the waters of the lake than was acquired by the appropriation made by the canal board; but if it be conceded that the learned counsel for the plaintiff is right in his contention that the state owns the soil of the bed of the lake, such ownership is, nevertheless, subject to every easement and servitude necessary to the use of the water by the other riparian-owners,-so far as they may be entitled to use the same. Smith v. City of Rochester, 92 N. Y, 480.

If the city of Syracuse shall acquire lands upon the shores of the lake, the use of the soil under the water for the purpose of placing a pipe therein, is no invasion of any exclusive property right which the state has in such soil. We are of the opinion that no public property was appropriated by this act to local or private purposes. Aside from the reasons above stated, it may be observed that the word “appropriating,” as used in this section of the coustitution, refers to a transfer of public property as a gift or gratuity, and not to some right in or privilege connected with property belonging to the state transferred for an equivalent. By the provisions of the statute, the reservoir is to be enlarged and its storage capacity greatly increased and forever maintained at the expense of the city. The arrangement contemplated by the statute is one which, in the judgment of the legislature, would be mutually and equally advantageous to the city and the state, and such a law is not within the reason or purpose of the constitutional provision referred to. We think that the statute is not in conflict with any provision of the fundamental law, and is valid.'

The judgment of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except Huger, Oh. J., not voting; Andrews, J., not sitting, and Finch, J., absent.


text:
    Enoch B. Woodman, Resp’t, v. The State of New York, App’lt.

      (Court of Appeals, Second Division,

      Filed June 25, 1891.)

    Board of Claims—Jurisdiction—Canals—Liability of state for injuries THROUGH DEFECTIVE BRIDGE ON ABANDONED CANAL.
    Chap. 404, Laws of 1877, authorizing the abandoning and discontinuing of the Chenango canal, was not intended to relieve the state from liability for injuries suffered from failure to keep in repair bridges which it still maintains, and the board of claims has power to award damages for such injury.
    Appeal from an award made by the board of claims.

      Charles F. Tabor, att’y-gen’l, for app’lt; E. Countryman, for resp’t.
   Haight, J.

On the 14th of July, 1880, the claimant herein, whilst engaged in drawing a load of hay over a bridge across the Olienango canal, was thrown into the bed of the canal and suffered the damages which were the basis of the award. At the time of the injury complained of the claimant was in the occupation of the farm upon which the bridge was partly constructed. The state had dug the canal through the farm near the middle thereof, and at the same time built a bridge across the canal on the south line of the farm, and on the north line of the adjoining farm, for the joint use of the occupants of the farms, and maintained it until after July, 1880. In 1872 it caused a new bridge to be built upon the site of the former, which was constructed of new materials, with the exception of one of the needle beams, which was taken from the old bridge and placed in the new. It was the old needle beam which broke and precipitated the claimant, with his team, wagon, load, etc., into the canal. It had become so decayed that only a thin outside shell remained sound, and a proper examination of it would have discovered its unsound condition. The evidence sustains the finding of the board, that the claimant’s injuries were occasioned by reason of the negligence of the state, its officers, agents and servants in charge of the bridge. It is claimed, however, that the board had no power to award damages against the state for the reason that the canal had been abandoned and discontinued. It appears that on the 1st day of May, 1878, the Chenango canal at the place in question was abandoned and discontinued pursuant to the provisions of chapter 404 of the Laws of 1877. The act provides:

“Section 1. The following canals of this state shall at and after the respective periods hereinafter specified be abandoned and discontinued as canals, and be no longer subject to the control or authority of. any of the canal boards or officers of this state, except as hereinafter specified..
Section 2. All that portion of the Chenango canal commencing at and lying south of the stone culvert in the village of Hamilton, in the county of Madison, and what is called and known as the Chenango canal extension and its appurtenances shall be abandoned and discontinued on and after the 1st day of May 1878.” _

_ Section 3 of the act provides that it shall be the duty of the canal commissioners or superintendent of public works, subject to the approval of the canal board, after the close of navigation in the year 1878, to advertise for sale and to sell that portion of the Chenango canal which had been abandoned ; and § 9 of the act, as amended by chapter 344 of the Laws of 1878, provides that

“All such portions of said canals and their branches and feeders so directed to be sold as pass through farming lands and are not referred to in § 5 of this act, except as hereinafter provided, shall be sold and conveyed by said superintendent of public works to the owners of the adjacent lands, the whole width thereof to the adjacent owner who is possessed of the fee on both sides thereof; and in cases where separate owners are in possession of the fee of the adjacent lands, then to the center of the prism of the canal to the owners on each side, in consideration and upon the condition precedent that such owners shall in writing, under their hands and seals, release the state from all obligation to maintain the bridges and other structures connected with such portions of the canal, and from all liability for damages arising from the abandonment thereof.”

The jurisdiction of the board of claims to award damages against the state only exist in cases brought within the provisions of the statute making the state liable. Under the Laws of 1870, chap. 321, the state was made liable to all persons and corporations for damages sustained by them from the canals of the state, or from their use and management, or resulting or arising from the negligence or conduct of any officer of the state having charge thereof, resulting or arising from any accident or other matter or thing connected with the canals, if the facts proved shall make out a case which would create a legal liability against the state were the same established in evidence in a court of justice against an individual or corporation. As we have seen, the bridge upon which the accident occurred was constructed hy the state over the canal, and was a thing so connected therewith as to bring it within the provisions of the act making the state liable; but the canal in question had been abandoned, and was no longer subject to the control or authority of the canal boards or officers of the state except as specified. The canal and its appurtenances, including the bridges over the same, still belong to the state, notwithstanding the abandonment. The superintendent of public works, subject to the approval of the canal board, was authorized to sell and dispose of such portions as had been abandoned, and • in cases where the canal passed through farming lands, to convey the same to the owners of the land, upon “ the condition precedent that such owners shall, in writing, under their hands and seals, release the state from all obligation to maintain the bridges and other structures connected with such portions of the canals, and from all liability for damages arising from the abandonment thereof.”

Here we have an implied statutory recognition of the obligation of the state .to keep in repair the bridges so long as they are permitted to remain or until the canal is sold or conveyed to the adjacent owner. If there is no liability, why require as a condition precedent a release of the state from such ohligation ? It is, therefore, apparent that it was the intention to continue the control of the superintendent of public works to the bridges over the canal until they were disposed of as provided in the act.

At the time of the accident there had been no conveyance of the canal to the adjacent owner, but subsequently the bridge, together with the material out of which it was constructed, was sold by the state.

We have not overlooked the provisions of the concluding sections of the act, to the effect that no person or corporation shall have any claim against the state for or by reason of the abandonment or discontinuance of the said canals or any of them. This provision should be construed so as to be in harmony with that which precedes it, and it doubtless has reference to damages which are incident to the discontinuance. It evidently was not intended to relieve the state from liability for injuries suffered from the failure to keep in repair bridges which it still maintained.

The award should be affirmed, with costs.

All concur.


author: Bradley, J. (dissenting.)

text:
    Sophia Pitcher, as Adm’rx, etc., App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed June 25, 1891.)

    Appeal from judgment of the supreme court, general term, fourth department, affirming order granting nonsuit.

      D. W. Cameron, for app’lt; C. D. Prescott, for resp’t.
   Order affirmed, with costs. Ro opinion. All concur, except •Bradley, J., dissenting, and Haight, J., absent.

Bradley, J. (dissenting.)

The following are my reasons briefly stated for not agreeing with the majority of the court:

When the plaintiff’s intestate entered the employment of the defendant he assumed the usual hazards of the service; but not the peril to which the negligence of defendant should subject him. His duties were those of brakeman. As such he was upon a freight train which left the yard near Syracuse in the evening of February 14, 1888, and the inference was warranted that he was struck by a bridge under which the train passed, and in that manner received the injury resulting in his death. He had been in the service of the defendant since the 6th of that month, and previously from about November 1 to December 20, 1887. And during those times he had frequently passed as brakeman upon the defendant’s freight trains under this bridge. The question presented on this review is whether there was evidence sufficient to support a recovery by the plaintiff. The defendant had failed to perform the duty imposed upon it by the statute, which provides that “Every steam railroad shall within six months after the passage of this' act erect and thereafter maintain such suitable warning signals at every low bridge or structure which crosses the railroad above the tracks where such warning signals may be necesssary for the protection of employees on top of cars from injury.” Laws 1884, chap. 439, § 2. There were not and so far as appears never had been any warning signals at this bridge. None in fact were necessary for the purposes of the defendant’s cars, as it was so high as to permit a brakeman to stand upon them without danger of injury in passing under it But when the defendant put into its trains for passage under the bridge certain box cars, other than its own, which were so high as not to permit a brakeman standing upon them to' pass under it, the duty arose under the statute, if the necessity for it-did not before exist, to place suitable warning signals there for his protection. This was the situation in the present case. There were cars known as blue line refrigerator cars; and Kansas City refrigerator cars, which the defendant was running on its road, and they were from one foot seven and a half inches to one foot and eleven inches higher than the common box cars of the defendant. Some of those higher cars were in the train at the time in question, and it may be inferred that the injury to the deceased resulted from his standing on one of them when the train was proceeding under the bridge. The conclusion was warranted that the defendant was chargeable with negligence for its omission to provide the warnings as directed by the statute before mentioned. And the further question is whether the jury were by the evidence permitted to find that plaintiff’s intestate was from contributory negligence. He knew the bridge was there and had such knowledge of its height as his observation had given him. He had been under it on trains without injury. So far the case of Williams v. D., L. & W. R. R. Co., 116 N. Y, 628; 27 N. Y. State Rep., 760, is applicable; but the bridge there referred to was not of sufficient height' to permit a person standing on top of the ordinary box car of the company to pass under it. In that case the injury occurred in the day time when the brakeman could see the bridge as well as the situation, and his coming in collision with it was attributable to inattention. And at that time there was no statutory duty of the railroad company to place warning signals at any bridge, and consequently it was not chargeable with negligence in that respect.

The situation in the present case was quite different, not only in the respects before mentioned, but it was dark and "stormy when the train approached the bridge. And although there was evidence tending to prove that early in. November, the deceased was brakeman on a train containing some of these higher cars which passed under the bridge, the evidence was not such as to-require the jury to find that he had ever .before",the. time' of the injury been upon the top of a train' containing'.such high cars when it passed under the'bridge The; distinction between this- and the Williams case", therefore, .is .such_as, to- Render the latter quite inapplicable to the question here.- Itlmay be assumed, that the deceased had passed under this bridge; ¡many times, standing on the top of box cars in trains on which lie vas bnafceman. And as the defendant so changed the.situation by' thñmss of higher cars, as to render it perilous for him .to 'o'BBMj^r as UspI his plaice of duty upon the train, and negligently onfifedi fe> ptoyiSb iEhe statutory warning for his protection, the 'conclusion o_f the; jury was permitted, that the negligence of the. defendant was. the sctl'e cause of the injury sustained by the plaintiff’s intestate. This is deemed so because the inference is fairly deduciMliSi SziDm. th&exh deuce that he was not, under the circumstances, chargeable with any want of due care on the occasion.

My view, therefore, is that the question of contributory negligence was for the jury, and that the order should be reversed and judgment directed for the plaintiff on the verdict.

Judgment affirmed, with costs.