author: Beckwith, Ch. J. Hatch, J. (dissenting.)

text:
    John Reining et al., Resp’ts, v. The New York, Lackawanna & Western R. Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 2, 1891.)

    1. Basements—Right oe access.
    An easement or right of access to property includes the opportunity for a man’s customers to come to his place of business without unreasonable hindrance or interruption.
    2. Municipal Corporations—Streets—Change op grade.
    Erecting an embankment in a street does not itself alter the legal grade.
    3. Railroads—Appropriation oe street—Easement.
    The embankment complained of in this case is the same as that in the Jeaume case, but it is five feet high in front of plaintiff's premises. The space between the retaining wall and the curb is only nine feet, not sufficient to allow two teams to pass, or the convenient Standing of wagons, or loading and unloading of goods. Held, that the embankment was an appropriation of the street to defendant’s use, and not a change of grade; that plaintiffs were thereby deprived of their easement of access, and entitled to recover therefor.
    (Hatch, J., dissents.)
    Appeal from, a judgment entered upon a verdict of a jury in favor of plaintiffs.

      John G. Milburn, for app’lt: David F. Day and Leroy Parker, for resp’ts.
   Beckwith, Ch. J.

The respondents own a building and a lot of land situated on the northerly side of Water street in the city of Buffalo, and they complain that the appellant, in constructing its railroad through Water street under a permit of the common council erected a stone wall between five and six feet high and an embankment of the same height in the street and across the front of the respondents’ premises, and thereby took the possession and occupancy of the respondents’ easement in the street, or some portion thereof, to the absolute and permanent exclusion of the respondents.

The appellant contends that it has not taken any property or interest in property belonging to the respondents, but that it "built its railroad in the street with the consent of the city given by a resolution of the common council, and that the wall and embankment were occasioned by a change in grade in the street made necessary in order to carry the railroad at proper height over Commercial slip, a waterway and part of the Erie canal, and that consequently the wall and embankment were not an unlawful exclusion of the respondents from the enjoyment of their easement.

The territory of the state of New York, except in limited, unsettled districts, is crossed by innumerable roads and highways, which are established or preserved by an exercise of the legislative power for the public use and public benefit. They are among the most important of the institutions belonging to' modern civilization. Without them society could not exist. In England they were for the common use of all the king’s subjects, and in this country, where people are sovereign, all the inhabitants have an equal or the like right to advantages of travel afforded by them. Every man has the right, rather than a privilege, of travel-ling over them. It is what I will call a personal civil right, belonging to his personal liberties as a citizen or inhabitant of the state. It is a right annexed to his person and does not give him the least property interest in the highway, nor in the ground.under the highway, nor in the air above it.

These highways are established and altered and possibly may be discontinued by the legislature in the exercise of the power and discretion derived from the people. The power of the legislature to alter and discontinue roads and streets ought to be exercised for the public good, the greatest good to the greatest number. The personal right of the citizen spoken of is the right simply to use the highways that at any time are found within the state. This personal civil right which belongs to him as one of the inhabitants of the state exists the same whether he owns or does not own lands adjoining a highway. So far as that right goes, the legislature directly or by delegation may change the highways and alter their grades as the ]3ublic good requires, without legal injury to any man even though he be the owner of land abutting on a highway the grade of which is changed. And so far as such personal liberty or right is concerned it may so change the grade that an adjoining individual lot owner may be cut off from all opportunity for direct entry upon the highway. And such an alteration of the grade of a street or highway may so far be held lawful, without a resort to the legal fiction that at the original taking of the land for highway purposes compensation was made which covered by contemplation all possible changes of grade, which in a thousand instances is not the fact, but upon the principle which lies at the bottom of most of the political ordinance of this country, that the convenience of the few must give way to the wants of the many. But the whole theory of the legality of measures which impose burdens and losses upon individuals is that they are in fact so imposed, in the judgment of the legislature, for the public good, and not the specific good of other individuals, or specified persons, natural or corporate.

But in addition to the personal right spoken of as belonging to an individual as a citizen or an inhabitant of the state, that is, the right of free locomotion on the public roads, the owner of a lot of land abutting on a highway or public street has another peculiar right connected with his ownership of the lot of land and connected with the highway which is a proprietary right It has been recognized by the courts of this state and several other states of the union; by the legislatures of many of them, and by the •courts of England. It was determined in the Story case to be a proprietary right, an easement in the street or highway attached to the estate or ownership of the abutting lot of land or to the land. It is held to be property which cannot be appropriated to the use of the public without compensation.

The right attaches to every parcel of land in the state which .abuts on a highway, and every man in the state is concerned as owner, tenant or occupant in the preservation of the right. The principle of the right is as general and extensive and as much entitled to state regard as the aggregate of the personal rights of the inhabitants to travel on the public roads, called the rights of the public. Generally speaking, all the movements of people upon the public roads end in adjacent pieces of land as termini. Roads have connection with the safety of the state, but are created mainly for the better business and social communication of the 'occupants of the contiguous soil. The rights of the public in the highways are said to be superior to the rights of individuals as .abutting owners, but in the quality of their importance they are not superior. But the peculiar right of the lot owner is something different from the mere right to go out from his premises upon the street and 'return from the street to his premises, for those are things which he may do by virtue of and in the exercise ■of that civil right which he holds in common with all the inhabitants of the state. What then is the quality and what are the dimensions of that peculiar proprietary right which belongs to him by virtue of his ownership of the abutting lot of land ? It would seem to be something given from necessity or justice for the sake of the continual beneficial enjoyment of his estate. The beneficial use of his property, which is the thing of value for which a man pays a consideration when he buys a parcel of land, ■extends within the lines of the highway, and embraces, as was well settled by the Story case, the light and air of heaven, and that other something which has been called access. As remarked, that easement of access cannot be the mere right of going out from his home or place of business upon the street and returning "therefrom upon his own land, which he may do by virtue of his personal liberty.

But does not the right of access mean a certain convenience in the use of his property with respect to the rest of the world ? If the land owner is a trader, a hotel-keeper, a manufacturer, is not his easement somewhat commensurate with the uses to which his property is devoted? “An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property which belong to him by reason of its location and are not enjoyed by the general public, such as the right of free access to his premises and the free admission and circulation of light and air to and through his property.” Lahr v. Met. El. R. Co., 104 N. Y., 291; 4 N. Y. State Rep., 340.

Public roads are created for the business and social reciprocity •of all those whose dwellings and establishments everywhere border upon them. The easement or right of access would seem to include the opportunity for a man’s customers to come to his place of business without unreasonable hindrance or interruption. A property devoted to business is of little value when business is-turned away by obstructions and barriers. In cities, especially, buildings as places of business are erected on the marginal line of the street. I suppose that is lawful. The customs of the age sanction such construction, and consequently sanction the reasonable use of some portion of the street in front of the premises,, and sometimes perhaps beyond, Original H. Collieries Co. v. Gibb, L. R., 5 Chan. Div., 713, for business transactions. Express wagons may drive up and stand a reasonable time to unload or receive merchandise. Coaches and carriages may stop there to-set down or take up passengers. Callanan v. Gilman, 107 N. Y., 360; 12 N. Y. State Rep., 21. Friends and customers may go-into and out from his house without hindrance, except so far astliey may be delayed by the legitimate public use of the street. The owner may'stand his teams and wagons in the street in proximity with his land a reasonable length of time, in a reasonable-manner, and, as I take it, may occupy a portion of the street, reasonably, convenient for his purposes. And I take it to be a general rule that this access is broad enough for the beneficial enjoyment of his property; that if his place of business is situated so as> to invite trade and custom from the opposite side of the street, or from places on the street beyond in either direction, such patronage ought not to be turned away from him by obstructions put upon his front. This view of the nature of an abutting owner’s easement in the street, or his right of access, seems to be supported by a number of English cases. Fritz v. Hobson, L. R., 14 Chan. Div., 542; Lyon v. Fishmongers’ Co., L. R., 1 Appeal Cases, 662; Original H. Collieries Co., supra.

The various privileges which may be exercised, and the various things which may be done in a public highway by virtue of a lot owner’s easement are often spoken of as though performed under the authority of the public right, that is, the same right which every man enjoys when he walks or drives on a public thoroughfare. And so in some cases the" question whether an abutting land owner has sustained actionable damage from something done in the street has been made to depend on the inquiry whether that right which is held in common with .all the people of the state, the public right, has been infringed. But the law under which that right is exercised is the law of motion, and would not suffer things to be done by a mere traveller upon the-street, without reference to adjoining premises, which might lawfully be done in connection with the easements. Whatever the correct rationale of the abutting owner’s right of action may be, it seems to be established that he has an easement in the public: street which is property and which cannot be taken, even for public use, without compensation. That there is a distinct easement connected with the ownership of land fronting on a. street is recognized by numerous American as well as English cases. Branahan v. Hotel Co., 39 Ohio St., 333; Story v. New York Elevated R. Co., 90 N. Y., 122; Lamm v. Chicago, St. Paul M. & O. R. Co., 43 Alb. Law Jour., 71.

While it is true that the courts hold on to the ancient common law rules of somewhat arbitrary character, when the king, the state, the government, or whatever other name may be given to that image of the people’s power, was of more importance than all the individuals who make up the people, the doctrine that the power of the legislature is so unlimited that it may change the established grade of streéts and highway, without the least regard to the circumstances of abutting owners, or the amount of damage that may be done to them as individuals for the public benefit, they nevertheless generally recognize the natural justice there is, in proper cases, of making a suitable compensation. There are, undoubtedly, many cases where serious damages are done to abutting owners upon a street by altering the grade thereof, and the legislature, having regard for private rights, should generally make some kind of adequate provision to compensate such persons, specifying and regulating the mode of estimating and paying their damages; and it is believed that such provisions are contained in many of the city charters.” Ottenot v. The N. Y., L. & W. R. R. Co., 28 N. Y., State Rep., 483; Rhodes v. v. Cleveland, 10 Ohio, 159; Hooker v. Northampton, 15 Conn., 319.

It was said by Peckham, J., in the Robes case, 121 N. Y, 516; 31 N. Y. State Rep., 828:

“ Assuming that the plaintiff had no title whatever to the land in the street through which the defendant laid its rails and ran its trains under legislative and municipal authority, I think it clear that prior to the decision of this court in the Story case, 90 R. Y., 122, he had no cause of action against the defendant based upon any illegal taking of the plaintiff’s property or easement by defendant.” Without denying that it is the law that an ordinary change of the grade of a highway may be made when demanded by the public interests without occasioning legal damage to abutting owners, yet it seems to be true that legislatures and courts everywhere recognize the justice of making compensation when .abutting owners are specially damaged in excess of the inconvenience sustained by lot owners generally. There are cases, now and then, of special damage, where the propriety of compensation appeals to every man’s sense of justice. What reason is there for seeking to broaden the application of the common law rule respecting the king’s highway so as to prevent, in cases of special injury, the doing of plain justice to abutting lot owners ? When the question is whether a thing done for the public benefit is a violation of a private right of property, whether a construction is an occupancy of a private easement to the exclusion of the owner, what reason is there for securing public exemption by an arbitrary and unreasonable application of a maxim of the common law? Whether a thing done is an occupancy of private property to the exclusion of the owner, or only the exercise of a public power, depends often on an interpretation of the fact, its consequences, and its relation to the general purposes for which a power has been exerted in the public interests, and its relation to private interests. If the fact is essentially a private injury and would be a legal injury unless it were a necessary consequence of the exertion of a power for the public benefit, it may be inquired whether the-fact has an essential relation to the public object. Cogswell v. N. Y., N. H. &. H. R. Co., 103 N. Y., 21; 3 N. Y. State Rep., 56. As in the Story case, in one respect, the posts set in the "street to-uphold the defendant’s railroad structure were regarded as within the public use, and, in another view, as a dispossession of the plaintiff from his easement. The irresponsible power of the state-government, which enables it to alter highways and change their established grades, is a power which relates to the public easement, the right of the inhabitants of the state generally, and should not be expanded in theory so as to be made a cover for -taking private property without compensation.

The question remains whether or not the erection of the embankment in Water street mentioned in the complaint was simply a lawful change of the grade of a street which consequently gives no cause of action in favor of an abutting owner whose-easement has been destroyed or abridged.

The plaintiffs’ premises are situated on the northerly side of Water street,-in which the defendant’s railroad is constructed. The premises are bounded on the easterly side by Commercial street, on the west by Maiden Lane, and on the southerly side by Water street. Occupying the whole lot up to the line of the-street is a four story brick building which is used as a store and residence. Commercial street extends southerly across Water street and terminates a little beyond in Buffalo Harbor. Water street before the embankment was made was sixty-six feet wide. The embankment is twenty-four feet wide and at the line of Commercial street is five feet, nine inches high, and extends westward: by a gradual descent past the plaintiff’s premises and across Maiden-Lane and touches the original level of the street 300 feet west of the plaintiff’s property. The embankment is supported laterally by solid perpendicular stone walls, which extend across the front of the plaintiff’s premises, and across the entrance of Maiden Lane. The embankment cuts off the original passage from the plaintiff’s property through Commercial street to the harbor, although a graded approach constructed by the defendant in Commercial street makes a way over the embankment in Water street. Between the perpendicular stone wall on the northerly side of the-embankment and the sidewalk in front of the plaintiff’s building is a space only 8-J to 9 feet wide, which is the only carriage-way left on the Water street side of the plaintiff’s premises. By the charter of Buffalo the sidewalk is to be used only by persons on foot. The railroad embankment is twenty-four feet wide on top, and the defendant’s railroad tracks are laid upon its surface. The resolution of the .common council gave the defendant permission to lay a double track road. It is palpably plain that by the embankment the easement, the access, which the plaintiffs formerly enjoyed in connection with their abxxtting premises has been substantially taken away from them. The wagon way left is not wide enough to allow two teams meeting to pass each other. It does not admit of the plaintiffs using the street for the delivery of fuel or merchandise without interrupting the public travel on the street subject to which their easement is held. The space is insufficient for the convenient standing of wagons or the loading or unloading of goods. The embankment cuts off patronage from the street in front of the plaintiffs’ premises. It is a deprivation in a large degree of the substantial benefits of access from Water street. Their property interest in the street is almost wholly taken away from them.

It is claimed by the defendant, nevertheless, that the plaintiffs are not entitled to compensation because the deprivation of property which they have sustained has resulted incidentally from a lawful exercise of the legislative power of the state, causing a, change in the street for the public benefit.

It. is asserted also that recent decisions of the court of appeals have settled the claims of the parties in favor of the defendant. It. does not appear to us that those decisions necessarily dispose of this case for several reasons. We do not think the decisions referred to are to be understood as overruling the Story case. "It would seem from what appears in the Ottenot case as reported, and the briefs used on the argument, that it was assumed or conceded, rather than decided, that there was a legal change of the grade of Water street when the defendant’s tracks were laid, and that consequently the provisions of the charter of Buffalo giving an abutting owner a remedy by an application to the common council for any damages sustained from a change of grade was the plaintiff’s only remedy.

Section 2 of title 9 of the charter, Laws 1870, Oh. 519, requires that the grade of a street shall be established and described, and that the description of such grade and all alterations thereof shall be recorded and that “ no street shall be worked until the grade thereof is established and recorded.” ' Those provisions contemplate the establishment, whether originally or by alteration, of a legal grade, for the benefit of the public, by an adjudication of the common council as to the requirements of the public convenience. Sections 7 and 9 of the same title of the charter provide for the grading of streets in the sense of working them. Then § 17 provides that when the city shall alter the recorded grade of any street the owner of a lot fronting thereon may within one year claim damages for such alteration by presenting his claim to the common council. I think the charter limitation applies only where the grade has been established or - changed by the common council by a formal determination. The legislative power over highways is supposed to be exercised for the public good. It is a consistent check on the delegated power of the common council that before the grade of a street shall be actually altered the common council shall first formally determine and describe the new grade. Where private rights are to be affected the power should be exercised within its strict limitations.

I do not think the provisions of the charter providing a remedy were intended to apply to every change.in a section of a street or in a of the soil, even if made under some resolution of the council, nor to changes which are incidental to the performance of some other public work. The actual surface of a street often remains for a long time unconformed to the established grade. Erecting an embankment in a street does not itself alter the legal grade. A provision of the charter empowers the common council to give a permit to railroad companies to lay their tracks in, along and across the streets of the city. It seems to me that means the surface of the streets as they exist. But if the power to allow railroad tracks to be laid in the streets carries with it the incidental power to impose conditions as to the crossing of other streets, the height of bridges and their approaches, and the tracks are laid, the conditions should be deemed to be accepted as such, with the legal liabilities incident to the construction of a track in conformity to them. Such a permit would be a protection to the company for any supposed interference with the public easement, but would leave private rights of property untouched. Upon the authorities, the laying of a railroad track upon the surface of a street violates neither the public easement nor the rights of abutting owners, and the laying of a track subject to the provisos supposed would not necessarily subject the company to liability for damage to individuals. But to call a bridge, a trestle, an embankment constructed under such a permit, a change of grade, where no change of grade has been officially determined,, seems to be both fallacious and unjust, although it is like much of the legal reasoning founded on the postulates of the common law by which impunity is given for the violation of private rights and the destruction of private property. In this case the common council passed a resolution purporting to allow the defendant to build an embankment in Water street, such as its engineers might deem practical, to cany its track over the canal, according to a plan of its own and subject in some degree to the approval of the city engineer. The gradient of the embankment westward from Commercial street across the front of the plaintiffs’ premises and beyond was not definitely fixed, nor was it established and recorded. The embankment in Water street was allowed by the common council, and was constructed, in fact, as a bed for the defendant’s tracks. It is true that the surface was required to be paved and is called a portion of the street, but it cannot be said that the embankment was made for the improvement of the street as a public thoroughfare.

The retaining walls were put in the street for the purpose of holding up the bed of the railroad and for no other purpose, and those walls occupy portions of the street as permanently and exclusively as they would if. earth had not been filled in between them. They are as effectually obstructions in the street for the benefit of the defendant in its private character as a business corporation as the posts set under the elevated railroad in Uew York. The walls are there dispossessing the plaintiffs from their easement. They abridge and take away the lawful access connected with the plaintiffs’~land, and although the plaintiffs might, by going a roundabout course, become travelers on the highway, and in the exercise of that right, which they hold in common with other members of the community, might drive up and down the embankment, yet they could not therefrom use their easement, could not have access to their premises. The fact remains that the walls are an absolute, permanent and exclusive occupancy of a portion of the proprietary interest of the plaintiffs. The fact that the general public may travel on the embankment does not alter the fact that the walls erected by the defendant in the street are a deprivation of the plaintiffs’ rights of property therein, for their easement consists in the facilities afforded by the street in front of their premises, it has been said, to its whole width, for the useful, profitable and pleasurable enjoyment of their adjacent property. If the elevated road in New York had been planked on top so as to accommodate persons on foot, the posts below would not have been any less the obstructions in the street that they were held to be. It was right to allow the railroad tracks to be laid in the street, but it is not right to deprive the plaintiffs of their property by a legal fiction, nor by a strained interpretation of the fact so as to make that a mere consequence of a lawful change of grade which more rationally and more justly is a taking of private property for public if not private use. When the thing done is equally susceptible of being regarded as the mere incidental result of the exercise of a lawful power for the public benefit, and as being an unlawful taking of private property, justice requires the construction that will give protection to private property, for why should an individual give up his property for the benefit of the public without compensation.

In another view the embankment is little more than an elevated railroad track over the canal. The defendant was permitted by the common council to lay a double track along the embankment. It is possible to drive teams that are accustomed to the cars along the embankment when not occupied by trains; but an embankment only twenty-four feet wide with double tracks upon it is not a place that answers the legal requirements made of the city by its charter to keep its streets in a safe condition for travel. The ordinary traveler, driving upon the embankment, who should receive an injury from the fright of his horse and from the cars could hardly maintain an action or save himself from non-suit for contributory negligence, for a man may not put himself in a place of danger simply because he has a technical right of way.

For further considerations of this aspect of the case I will refer to the opinion of Titus, J., in Jeaume v. The N. Y., Lackawanna & Western Railway Company, decided at this term.

In my opinion the judgment appealed from should be affirmed.

Hatch, J. (dissenting.)

Plaintiffs are owners of property fronting on Water street and by this action seek to recover damages for the appropriation of the street to railroad uses. The facts are brief and have been before the court under varying circumstances and cases many times. The fee of Water street was acquired by the city of Buffalo by proceedings in invitum under and by virtue of title VIII, chap. 519, Laws, 1870. In 1882 the defendant made application to the common council of said city for leave to construct and operate its railroad through several streets therein. The council granted such permission pursuant to a resolution which so far as material here is as follows: “That permission be and hereby is granted to the New York, Lackawanna & Western Railway Company to lay and maintain two railroad tracks from the easterly line of the City of Buffalo northerly of William St. and where the route of said road, as laid down upon the map thereof filed in the office of the clerk of the county of Brie, crosses such city line to the points' hereinafter mentioned and to cross with such tracks * * * upon the line and at the grade specified upon the map and profile of the route of such company filed in the office of the clerk of Erie county, May 19,1881, and thence proceeding westerly * *. * across Main street, and through the block to Prime street; thence along the northerly line of Prime street, but so that no part of the track shall be in Prime street; thence across Lloyd street, at a grade not to exceed five feet above established grade of street, and construct crossing of a grade not to exceed three feet to the 100 feet, under the direction of the engineer; thence to and into and along the center of Water street to the docks of the Delaware, Lackawanna & Western Railroad Company, at the foot of Brie ¡¡street, said company is. further authorized to cross at grade * * * Maiden Lane on the line between Commercial and Brie streets, as laid down upon the map so filed in Brie county clerk’s office.”

■ This grant was made subject to the following conditions, among others:

Second. That whenever said tracks cross at grade, and are laid within a street, such company shall cause the space between its exterior rails to be paved or planked, and shall cause such pavement or planking to be kept in repair.

Third. That such tracks, westerly of the junction of Ohio and Blk streets, shall be so laid that the top of the rail shall be flush with the pavement, so as not to obstruct travel in such streets.” That portion of the road lying westerly of the junction of Ohio and Blk streets includes Water street." Under and by virtue of this resolution and its charter, granted by the state, defendant proceeded to construct its road. At a point west of Lloyd street it was necessary to cross Commercial slip, a part of the Brie canal; the elevation .at which it should cross was fixed by the state authorities pursuant to law, chapter 276, Laws 1834, § 16, in accordance with which the height was fixed at fourteen feet above the water level. This necessitated a change of grade and a rise in the streets each, side of the bridge, and resulted, in Water street, in the railroad starting at grade west of the slip and gradually rising until it crosses the slip. The structure which thus changed the grade is built of solid walls of masonary on either side, with filling between, upon which the rails are laid and the whole surface is paved. Its length in Water street is 300 feet, its width twenty-four feet, and its greatest heighth five feet and nine inches.

It is liot contended but that this raised structure is made necessaiy in order to cross Commercial slip at the established height fixed by the state, but it is insisted that defendant acquired no right whatever to erect the structure or change the grade in Water street, either by grant of the council or otherwise; that all authorization to lay tracks or operate a road west of Main street was stricken from the prevailing resolution. • The record discloses, by inference, that the subject matter had previously been -before the council, and that it had been the subject of consideration by the committee on streets. When the matter was taken up by the council, a substitute resolution was offered for the report of the committee on streets, and forms the basis of authority acted upon by defendant. The particular thing relied on by plaintiff relates to a resolution offered, which provided that all of the prevailing resolutions relating to that portion of the route west of Main street should be stricken out, as the same had previously been adopted. This amendment was adopted, but was immediately reconsidered, and then left without further action, so that it found no place in the resolution as finally passed. Subsequently a resolution was passed which fixed the grade across Lloyd street. Numerous other amendments were offered, some of which were adopted and some ^ejected, but none affecting the particular matter here, except those stated. The resolution was then adopted, and, so far as material now, is the one quoted. It is seen from this that the reference to the construction of the road lying west of Main street, so far from being stricken out, remained, that the grade was established at the crossing of Lloyd street where it approached Commercial slip at five feet, thus modifying the original substitute for the report of the committee, which had provided that the grade should be such as was necessary, in practical construction, to meet the grade fixed by the state engineer at the crossing of the slip. It is true that no mention of the grade in Water street is made, in words, in the resolution, but it authorizes its construetion there, in accordance with a certain profile and map, which showed the grade, then on file, and, according to the testimony, the grade now there is in accordance with such profile and map. If, however, there was this absence, the resolution having provided for the crossing of the bridge into Water street, and the construction of the road therein, it will not be assumed that a valueless grant was made, and as the road could not approach or leave the bridge except an approach be constructed for it, such construction, in the absence of statutes prohibiting it, will be presumed to exist as an essential incident to the grant Slatten v. Railroad Company, 29 Iowa, 148.

The contention, therefore, that no grant was made cannot be upheld. It is farther insisted upon that even though the construction of the road in Water street be authorized, yet, that it is not constructed in accordance with the grant made. The particular defect insisted upon is, that the resolution authorized the crossing of Maiden Lane at grade, while it appears that at the east line of Maiden lane it is two feet above grade. It would be sufficient in answer to say that the record nowhere shows the point where the railroad starts to leave the grade, and whether east or west of Maiden Lane. Doubtless the maps used and introduced in evidence upon the trial disclosed this fact, but they are not made a part of the present record. If it were otherwise, the testimony is to the effect that the roadway, as it now exists; is constructed in every respect with the profile and map on file; that it was inspected by the city engineer and approved of by him. The resolution provides that the crossing shall be made at this point at grade, as laid down upon the map filed, and it will not be assumed that inconsistent grants were made. As to the present grant, and structure, the map and profile provide for it, and the city authorities have given a practical interpretation to the resolution through its constituted authorities, that the present construction is in accordance with the grant. Claim is also made that the proceeding taken by the city to acquire the fee of Water street is-void. It is not contended but that the legislature authorized the city to acquire the fee of the street; that the proceedings taken in conformity with such acts are in all respects regular, and that they were confirmed by judgment of this court. Whatever may have been the reasons which induced the city to acquire the fee, and however inadequate may have been the sums awarded for the property rights taken, we are confronted with the condition that a proceeding taken in conformity to law has resulted in a judgment which is in all respects conclusive in this action. Matter of Ferris, 10 N. Y. State Rep., 480, affirmed at general term. Mss. Opinion Smith J., not reported. The claim is further made that if the proceedings referred to are in all respects regular, the council has no power to authorize the change of grade by the proceedings taken; that it is in no sense a change of grade, but an appropriation of the street. So far as the latter question is concerned it will be hereafter noticed.

By title 3, § 19, the council is authorized, by a vote of twothiras of all its members elected, to permit the track- of a railroad to be laid in, along or across any street; the vote in the council by which the resolution awarding the grant was passed shows that the required number authorized it; this authorized the construction of the road in Water street, unless some prohibition exists. The latter is claimed, and we are referred to §§ 2, 7 and 8, title 9, charter of the city of Buffalo, for its support. The first of these sections provides for the establishment of the grade of a street, its description and alteration, which shall be recorded with the city clerk. The others provide for grading, and so forth, of streets, and the course of procedure in changing the grade, by which it appears that three-fourths of all the members elected must vote for the proposed change, when the sum to be expended shall exceed $500, and there must also be notice of intention published three times a week for three weeks, or the regrading must have been applied for by a majority of resident owners whose lands front on the street, etc. The evident object and purpose of these sections is to give the land owner an opportunity to be heard whenever any proceeding is taken which results in imposing a burden upon his property by way of taxation, and this is essential to meet a constitutional requirement, if the moving party is the city, through the common council, and the cost exceeeds $500, then notice of intention must be published; if the owners are the movers, then no such notice is necessary to give the council jurisdiction, as the minority who do not petition are protected in the right to be heard at the time the tax is laid, for by § 10 of the charter the cost of such improvement is to be borne by local assessment, and other provisions provide for notice. It is quite evident to my mind that these sections have no connection with or application to the power vested in the council to authorize the use of streets for railroad purposes. The only limitation in the section granting the power is in the required' two-thirds vote. The sections referred to as a limitation upon the power have application alone where the cost of the work is to be borne by local assessment and exceeds $500. When the right to use a street is vested in the railroad no burden of taxation upon the lands fronting thereon is authorized or contemplated, all cost and expense incident to the grant is borne by the company, so that whether the cost of the work imposed upon the company is great or small is not of the slightest consequence to the lot owner, as he bears no share of it, and consequently the provisions passed to protect him in this regard fail for want of application to such a case.

It is urged that the-right is not limited to purposes of taxation, but embraces the right to be heard with respect to damages inflicted upon adjoining property as incidental to the change. It is to be noticed that the sections of the charter referred to are silent in this regard, and such construction must embrace something not expressed in words and I think not intended. This view seems conclusive from the fact that by § 17 of the same title provision is made that the lot owner, within one year after the improvement or change, may present his claim to the city and have his damages assessed, and this without reference to the cost of the work. Thus a complete and harmonious system is established. Hirst, the council has the right to order the change. Second, if the cost of the work to be assessed upon the lot owners exceed $500, notice must be given or petition made. Third, if any lot owner be damaged by the improvement, whether ordered by the council with or without notice, or upon petition, such damage is to be measured upon application by the lot owner. This system seems to protect the owner in any contingency, imposes no burden without; a right of hearing, and when damage results, provides a remedy. I see in all this no limitation upon the power of the council to make the grant and authorize the change. It is further said that before the grant becomes effectual the grade must be established and recorded. If this be so, I think the grade was sufficiently established in the. resolution authorizing the construction, for the map and profile on file clearly showed it; if there .has been failure to record, it cannot vitiate the action taken for that was alone a clerical act, directory in its character; and can be complied with at any time. People ex rel. v. Haupt, 104 N. Y., 377; 5 N. Y. State Rep., 770.

What effect such omission may have, if any, upon the right to make application for damages, it is not now necessary to determine. The views herein expressed find support in Ottenot v. R. Co., 28 14. Y. State Rep., 483; Conklin v. R. Co., 102 N. Y., 107; 1 N. Y. State Rep., 677; Briggs v. R. R. Co., 79 Me., 363; Wolfe v. R. R. Co., 15 B. Mon. (Ky.) 404; Slatten v. R. R. Co., supra.

Finally it is claimed that there has been no change of grade of the street in any sense, but that there has been an utter destruction of the street, and a complete appropriation of it to railroad uses. The doctrine announced in Story v. Elevated R. Co., 90 N. Y., 122, is cited and relied upon to support the contention. This case has recently been the subject of re-examination and'limitation by the court of appeals. Fobes v. The R., W. & O. R. R. Co., 31 N. Y. State Rep., 828.

It is there held that the Story case did not intend, nor did it overrule any principle of law which had previously existed, but that it simply made application of established principles of law to facts in a new combination. Judge Peclcham says: “ Such facts amounting, as was- determined, to an absolute and permanent obstruction in a portion of the. public street, and in a total and exclusive use of such portion by the defendant, and such permanent obstruction and total and exclusive use, it was further-held, amounted to a taking of some portion of the plaintiff’s easement in the street for the purpose of furnishing light, air and access to his adjoining lot.” And again, referring to the property taken, the learned judge says: “ But this taking, it cannot be too frequently or strongly asserted, resulted from the absolute, exclusive and permanent character of the appropriation of the street by the structure of the defendant.” Referring to ’ the rule-applicable to surface steam railroads, the learned judge says; “For many years prior to the decision of the case of Story * * * I think the law was that a duly incorporated railroad company having authority from the state to build its road, and laying its tracks and operating its road through and upon the surface of the streets of a city under the protection of a license from such city, took thereby no portion of the property of an individual who owned land adjoining the street, but bounded by its exterior line. The company was, therefore, not liable to such an owner for any consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes not exclusive in its nature and substantially upon the same grade as the street itself, and leaving the passage across and through the street free and unobstructed for the public use.” This case, taken with the case of Ottenot v. Railway, supra; Conklin v. The Railway, supra, and the Story case, seem to settle the law of the present case. As applicable here we find that this embankment is not an absolute and exclusive appropriation of the street; it still remains open upon each side for street purposes, as it always existed; there is no proof to show that the surface of the embankment is 'not passable for vehicles and the ordinary uses to which a street is put, or that the use by defendant has been unreasonable or degenerated into a nuisance, or been exclusive in any sense beyond such as ordinarily attaches to the use of steam motive power on the surface of a street.

On the contrary the proof is that the rails are laid flush with the pavement of the street, that the surface is paved as an ordinary street, that it is accessible from the point where it commences to rise above grade for the usual traffic of a street, that at its highest point approaches for foot passengers and teams have been built. Those facts all rebut the contention that the use of the surface of the street is absolute and exclusive by the road. It is quite clear within the authorities that the damage suffered is such as is consequent upon the changed grade, and not such as arises from the absolute and exclusive use of the street by the railroad or its structure; it seems, therefore, to fall outside the Story case, and allies itself to the principle announced in the Fobes case. If these views are correct, it follows that the judgment appealed from must be reversed, and a new trial ordered, costs to abide event

Judgment affirmed.

Beckwith, Ch. J., for affirmance; Titus, J., did not sit


source: Caselaw Access Project

author: Mayham, J.

license: Public Domain

text:
    Julia A. Klock, App’lt, v. Fannie Brennan et al., Ex’rs, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Bill of particulars—Laches.
    The action was for board, care and nursing of defendant’s intestate E. B. The cause was at issue January 20, 1890, and was on the calendar at three subsequent circuits and was finally by consent set for trial on November 6, 1890. On October 21, 1890, plaintiff served a demand under Code Oiv. Pro., § 581, fpr a bill of particulars. This demand required a statement of the payments, alleged by the answer to have been made to plaintiff at various times by E. B., or by others for her. Held, that the case was one where such a demand was proper and that plaintiff had not lost her right to make it by laches.

    Appeal from an order setting aside plaintiff’s demand for bill of particulars “of the accounts, defenses, demands, set-offs, counterclaims and payments, stated and set forth in the defendant’s answer as follows:

      First. “ The items, amounts and dates of any and all payments alleged to have been made by Electa Bixby to plaintiff in folio 4 in defendant’s answer.”

      Second. “The items, amounts and dates of any and all payments alleged to have been made by Greorge Bixby and Electa Bixby in folio 5 of defendant’s answer.” :

      Third. “ The items, amounts and dates of any and all payments alleged to have been made by Greorge Bixby to plaintiff for care and board of Electa Bixby in folios 5 and 6 in defendant’s answer.”
    This action is brought to recover for board, care and attend: anee, by the plaintiff, of Electa Bixby, for whose support, maintenance and care it is alleged the defendant’s intestate was liable.
    The cause was at issue upon complaint and answer on the 20th of January, 1890, and was on the calendar after issue at three circuits, on notice by both parties, but was on each occasion postponed, by order, or stipulation, and was finally, by consent of the parties and permission of the court, set down for trial for the 6th of ¡November, 1890.
    On the 21st • of October, 1890, one day after the cause was set down for trial, the plaintiff serves the demand for a bill of particulars, which was set aside by an order of the special term, from which order this appeal is taken.

      Jesse Stiles, for app’lt; J. W. Houghton, for resp’ts.
   Mayham, J.

The Code of Civil Procedure relieves a party in the first instance in a pleading from a setting forth the items of an account therein alleged. Code, § 531. But the same section provides, upon a writ of demand, for the delivery of a copy of the account, and concludes with this general provision:

“ The court may in any case direct a bill of particulars of the claim of either party to he delivered to the adverse party.”

The affidavit of the plaintiff discloses her entire ignorance of the alleged payments in the defendant’s answer alleged, and shows that she will not be able to prepare to meet the same on the trial unless furnished with a statement of the sums, items, dates and amounts constituting the alleged payment and satisfaction set up in the answer.

If payments have been made, in settlement and satisfaction of plaintiff's claim, they must have been made at times and in amounts capable of statement with approximate accuracy.

The object of a bill of' particulars is to enable a party to know with reasonable certainty the nature, character and extent of the claitn made by his adversary, and substantially the time when it accrued, so as to enable an intelligent person to make preparation for the trial of the same. In Matthews v. Hubbard, 47 N. Y., 428, Bapallo, Judge, in discussing this question, says: “The office of a bill of particulars is to apprise the defendant (party) of the items which he intends to prove upon the trial.”

Clearly the defendants could not on the trial establish their defense of payment by proof as general as the allegation in the answer.

They would be required to establish payment by proof of particular amounts aggregating an amount equal to the amount of indebtedness established by the plaintiff, and it would seem to be no hardship to apprise the plaintiff of the same by a bill of particulars.

In Witkowski v. Paramore, 93 N. Y., 467, the plaintiff in his complaint claimed to recover for moneys collected by the defendant for him, which he failed to turn over. The answer set up in a general way set-off against plaintiff’s assignor for moneys loaned and advanced, and laid out by the defendant at the request and for the benefit of plaintiff’s assignor, and the court says:

“ This was a proper case for requiring the defendant to furnish particulars of his claim. * * * To meet this defense the plaintiff was entitled to be informed of the particulars of the alleged loan and advances in consideration of which, as alleged, the transfer was made.

“ The order for particulars required the defendants to state the times, or time, and the amounts of the several advances, whether made by check or otherwise, and whether made to Lichtenheim in person, and if not, to whom, and by what member of defendant’s firm.”

And the court held that such particulars did not call for any disclosure beyond what may be fairly required to enable the plaintiff to prepare to meet the defense.

In Barkley v. The Rensselaer & Saratoga R. R. Co., 27 Hun, 516, it was held in this department that § 531 of the Code of Civil Procedure does not limit the right to demand a bill of particulars to a cause of action upon an account stated, and that the word account as used in that section applies to almost every claim or contract which consists of several items, and the court in pronouncing its unamious decision uses this language:

“ The complaint alleges the delivery of wood from time to time and payments by the defendant on account thereof from time to time. Thedefendant demands the items of the account. We see no reason for limiting the right to make such demand, to the case of an account stated * * *.
“ In ordinary language the word account is applied to almost every claim on contract which consists of several items, and there is no necessity for giving any limited meaning to the word as it is used in § 531 of the Code of Civil Procedure.
“Ho harm can arise to the plaintiff. He need only serve a copy of those accounts as he deems sufficient. * * *
“ It was very unnecessary for the plaintiff to make a motion to set aside the demand and we are not willing to say that such a motion can ever be proper.
“ If the plaintiff is without the means of giving particulars he can make that as an excuse, when a motion should be made for a further account, after he should have made and served the best in his power.”

On these reasons the order setting aside the demand for "a bill of particulars was reversed.

It is true that in that case, the motion was made by plaintiff to set aside the defendant’s demand. But there can be no difference in principle, as § 531 of the Code of Civil Procedure allows either party to make the demand for a bill of particulars.

We are, therefore, of the opinion that this was a proper case for furnishing a bill of particulars upon a demand, and unless the plaintiff has lost her right to the same by laches, the order setting aside the demand should be reversed.

But it is insisted that the plaintiff had forfeited her right to a bill of particulars by her delay in making the demand, and reliance is made in support of that position upon, Masterson v. The Mayor, 4 Civ. Pro., 317; Vanderzee v. Hallenbeck, 14 N. Y. State Rep., 449, and De Carrillo v. Carrillo, 53 Hun, 351; 25 N. Y. State Rep., 423.

In the first of these cases a motion was made for a bill of particulars after the cause was at issue and on day calendar for trial, and the proof on the motion shows that the defendant had the plaintiff’s deposition taken before issue joined, in which the items, and dates of the plaintiff’s claim, fully appeared, and the court denied the motion on the ground that the information was not necessary, and that the defendant having waited until the eve of the trial should not be permitted thus to embarrass and delay the-plaintiff.

In Vanderzee v. Hollenbeck, 14 N. Y. State Rep., 447, it was held that the order for a bill of particulars rested in the discretion of the court, which, however, was subject to review on appeal, and the delay in moving for a bill of particulars is a proper subject for consideration in the exercise of that discretion.

In De Carrillo v. Carrillo, 53 Hun, 359; 25 N. Y. State Rep., 423, the court says that “ ordiniarily where a motion is sustained by the affidavit of the party stating his inability to meet the charges without more particular description or statement of facts attending it, a bill of particulars will be ordered.”

In this case the motion was denied on the ground that the affidavit was not made by the party, but by his attorney, and did not show that the defendant was ignorant of the nature of the charges, and that as issues were to be.found by the court, care would be taken to so frame them as to fully apprise the defendant of the particulars, and afford, him a complete opportunity to meet them by proof.

The motion in this case was not denied on the ground of laches in moving.

The-interval between the service of the amended answer and ■the demand in this case is from January to October, and longer than would seem to be necessary, but as the affidavit, in support of the demand and bill of particulars, seems sufficient, and there is no evidence of any vexatious delay, we think the-demand should stand, and the order setting it aside should be reversed.

Order reversed, and motion denied, with ten dollars costs of this appeal and printing disbursements.

Learned, P. J., and Landon, J., concur.


text:
    John W. Haywood, as Adm’r, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Negligence—Railroads—Gates at crossings.
    The six tracks of the defendant, running north and south, occupied a breadth of 143 feet where they were crossed by a street in a city nearly at' right angles. There were gates at each end of the crossing composed of long poles worked by cranks which raised and lowered them in the usual way. One gate was shut, the further one, as deceased approached; the other had been shut, but had been thereafter lifted up by a woman who wished to pass shortly before deceased drove up. He was going east, seated in a covered milk wagon near its middle, with cans in front and behind him, and could look out only in front. A freight train at rest cut oñ his view of the last four of the six tracks. He was struck by a train on the next track beyond that upon which the train at rest stood. Eeld, that the case was one for the jury; that negligence might consist as well in allowing a stranger to open the gates after they were closed as in the failure to close them in the first instance.

      2. Same.
    It could not be held, as matter of law, that permitting such opening by a stranger, and allowing the gates to remain open long enough for one to pass, was not negligence.
    3. Same.
    Although the further gate was closed, it was distant 143 feet, and it was for the jury to say whether the deceased might not have reasonably supposed that upon reaching the further gate he would find that open also.
    4. Same—Evidence—Ordinance limiting speed oe trains.
    The accident happened in 1888. By chap. 242 of Laws of 1889 it is provided that where a crossing is protected by gates, in a city of a population not exceeding 50,000, the common council cannot limit the speed of trains to less than thirty miles an hour. Plaintiff was allowed to read a city ordinance of 1883, which, in substance, provided that trains should not be backed over a crossing at a speed greater than two miles an hour. Held, no error. The accident happened before the law of 1889 was passed, and no proof was made as to the population of the city.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff, at Schenectady circuit, and, also, from an order denying defendant’s motion to set aside the verdict upon the minutes at the trial.
    The action was prosecuted for alleged negligence of the defendant in the management of its railroad by reason of which plaintiff alleges that his intestate was struck by defendant’s cars while crossing the defendant’s railroad track on one of the streets in the city of Schenectady.
    The deceased was a son of the plaintiff and of about sixteen years of age, and at the time of his death was in plaintiff’s employ in the business of peddling and delivering milk in the city of Schenectady, with a team of horses attached to a covered wagon, open at the front with a seat located about the middle of the box, opposite which on either side was an opening in the cover of about two and one-half feet in width, with milk cans before and behind the seat.
    The defendant’s railroad track crosses Front street in the city of Schenectady at about right angles with the street and on a grade with the same, and at that crossing the street has six tracks crossing the street and occupying a space on the street of 143 feet.
    The street at that point is forty-five feet in width and on either side of the railroad at this point the defendant ^sometime prior to the accident had maintained gates, constructed and operated in the usual manner of such gates, with long arms of wood moving-vertically on axles in boxes on the side of the street, and so adjusted that a gate man stationed at one of these boxes, or axles, with the use of a crank, or cranks,without shifting his position, could lower the bars on either side of the railroad track to a horizontal position, and thus span the entire street at either side of the railroad, or by the use of the same cranks, or lever, elevate the bars, on either side or both sides of the railroad and thus leave the street unobstructed for the public travel.
    The gates could also be raised by lifting directly upon the bars; the defendant through its gateman and-its flagman had control of' these gates at the time of the accident, but the undisputed cviclence is that the gate through which the plaintiff’s intestate entered upon the track had been raised by a woman, who lifted the bar and passed through just before he drove through, and that the gates on the opposite side of the railroad tracks were closed when he drove in, and were not opened before the accident.
    The direction of the railroad at that point is north and south, and the deceased approached the crossing from the east side going in a westerly direction. About eighteen feet from the east gate, through which the deceased passed, is a track diverging from the line of the main track, and leading in a curved line to the freight house.
    From this freight track, to track designated as track No. 4, is a distance on the line of the street of fifty-three feet There are five tracks at this point nearly parallel, and distant seven feet from each other, each track being five and a half feet wide, and designated in their order from east to west, as No. 4-3—2-1, and a switch track.
    On No. 4, which was the most easterly of the main tracks, stood a train of twelve high box cars extending two feet north of the south building line of the street.
    On the occasion of the accident the deceased was on Front street driving westerly towards the crossing on a trot; as he approached the east gate it was raised, as the evidence shows, by a woman who was passing along the street; the west gate remained closed; as the deceased with his team passed under the gate upon the railroad track a train of six box cars backed from the south over track No. 3, colliding with the wagon in which the deceased was passing, and he was killed.
    There was a brakeman on the car that struck deceased, who gave alarm by swinging his hands and shouting, and the bell of the engine which was pushing the box cars was rung. On reaching track 3 deceased turned his horses, and one of them stumbled, causing slight delay.
    The plaintiff insists that the defendant was guilty of negligence in allowing the gate to be opened so/that the deceased could drive upon the track while a train was approaching, and also that the train was moving at a rate of speed that was prohibited by a city ordinance, and also in backing a train across the street without its being preceded by a flagman, and that the evidence of defendant’s negligence was sufficient to justify the jury in finding a verdict for the plaintiff, and that as the gate was raised the deceased had a right to assume that no train was passing; that the third track was hidden from view at the point where the deceased passed the gate by intervening freight cars; that he could not see the apjDroaching train, and was, therefore, guilty of no contributory negligence.
    On the part of the defendant it is insisted that the gate was raised through which the deceased passed, by a stranger, for whose acts the defendant is not responsible; that the opposite gate being-closed was a notice to the deceased that the track was not clear; that he could have seen the approaching train if he had looked; that he must have seen the train approaching after he passed the gate and in time to stop his team, but attempted to pass with a knowledge of the approach of the train, with the hope or expectation of passing before the train reached him, but was unexpectedly delayed by the stunibling of his team, and that his acts and omissions constituted negligence on his part, which contributed to the injury, for which the plaintiff should have been nonsuited on defendant’s motion.
    The defendant also insists that the judge erred in bis charge and in his rulings in the admission of evidence.
    The jury rendered a verdict for the plaintiff.

      S. W. Jackson, for app’lt; Edward D. Cutler (Alonzo P. Strong, of counsel), for resp’t.
   Mayham, J.

We think the evidence in this case fairly sented a question of fact for the jury as to whether the defendant was guilty of negligence in the management of the gate, or in running the train which produced the injury to the plaintiff’s intestate.

The defendant having constructed and maintained gates on either side of this railroad, crossing the street, and as the case shows, having charge of such gates, the public have a right to rely, with some degree of confidence, that they will so operate the same that the traveler upon the highway will be excluded from the railroad tracks when trains are approaching in dangerous proximity to the street, and while such traveler may not rashly or presumptively rely upon the condition of the gates, but ■must, to avoid the imputation of contributory negligence, make use of his judgment and senses to avoid danger, yet when he finds the gate open and drives upon the the track and is injured, it becomes the question of fact for the jury to determine, whether the railroad company was guilty of negligence in allowing the. gate to be opened by a stranger, and the traveler upon the highway thus put off his guard, or invited by the appearance, to enter and thus expose himself to danger.

Negligence in the management of the gates may consist as well in allowing a stranger to open them as in the negligent opening of them by the company’s agent. And I think it is for the jury to say whether, upon the evidence in this case, the defendant negligently permitted the gates, which were placed there as a warning and safeguard to the public, to be opened either by its own employe or a stranger, and remain open so as to allow a traveler to pass through. The duty of operating the gates in such a manner as to afford reasonable protection to a traveler upon the highway, who is reasonably careful himself, rests with the railroad company, and when the gate is open and the traveler passes through upon the track and is injured, "it is a question of fact for the jury to determine whether or not the act of allowing the gate to be open, whether opened by defendant or a stranger, is negligence on the part of the company.

It is quite true, as contended by the appellant, that: “ Unless there is something in the proof, taken as a whole, which, if believed by the jury, would establish a failure on the defendant’s. part to perform a legal duty, or to use reasonable care and prudence in what it did, the case should not be submitted to the jury.” Heaney v. Long Island R. R. Co., 112 N. Y, 126; 20 N. Y. State Rep., 296.

But I think it cannot be held, as a matter of law, that permitting the gate to be opened even by a stranger, and to remain open long enough for a traveler upon the highway to pass through, is not such an act or omission by the company as to justify its submission to the jury upon the question of the negligence of the defendant.

In Grippen v. N. Y. C. R. R. Co., 40 N. Y., 47, the court, in discussing the question of evidence of negligence to be submitted to the jury, says : “ Where the facts are themselves in dispute, or upon the proofs their wisdom or efficiency is doubtful, the jury must decide whether negligence was proved.”

The gate being under the charge, superintendence and management of the defendant, we think it was for the jury to say whether leaving it open in the manner indicated by the witness, was or was not negligence.

It is quite true as contended by the appellant that the burden is upon the plaintiff in this class of cases, to establish the negligence of the defendant which either directly, or proximately caused or contributed to the injury complained of, ana that the charge of negligence cannot be supported by mere conjecture, or surmise, but must be proved, either by direct evidence or by facts from which the inference of negligence can be legitimately drawn, Dobbins v. Brown, 119 N.Y., 193; 28 N.Y. State Rep., 957, and that this class of actions stand upon a different footing from that governing actions by passengers against carriers of passengers or owners of goods against common carriers in which cases a contractile relation exists, which is deemed broken by an injury or loss to the person, or owner of the goods carried. Nitro Glycerine Case, 15 Wall, U. S., 536. In this case, as we have seen, negligence must be proved by the plaintiff by evidence of negligent acts or omissions; in the other, proof of the injury usually established a prima facie case.

But the appellant insists that the trial judge shoula nave non-suited the plaintiff on the motion of the defendant, on the ground that the plaintiff’s intestate was guilty of contributory negligence in driving upon the railroad track while the opposite gate was closed, and in not looking to the right and left as he was required to do in going upon such dangerous ground as a railroad crossing, and insists that if he had looked he could have seen the approaching train in time to have avoided the collision.

Upon this question also the plaintiff has the affirmative, and must assume the burden of proving to the satisfaction of the jury, by evidence tending to establish that fact, that his intestate was guilty of no negligence which contributed to the injury, and the rule upon this subject is well stated in Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 N. Y., 202, as follows: “ The burden ^as upon the plaintiff of showing affirmatively, either by direct evidence or the drift of surrounding circumstances, that the deceased was himself without fault, and approached the crossing with prudence and care, and with senses alert to the possibility of approaching danger.

“ He must look and listen : and is excusable for the omission only when the circumstances show that both precautions were impossible or unavailing.”

Upon this branch of the case, we think it was proper for the jury to consider the fact that deceased found this gate open, and to consider that as an element bearing upon the question of his negligence, and the discussion of that question upon the other branch of the case applies with equal force here.

The jury might well consider whether, when deceased found the gate open, he might not prudently have regarded it as some degree of assurance that no train, while the gate was in that position, would pass across, or upon the limits of the public street

In Palmer v. The N. Y. Cent., etc., R. R. Co., 112 N. Y., 234; 20 N. Y. State Rep., 904, a case in some respects similar to this, the company had provided a gate, on either side of the track, to be shut when engines or trains were passing and opened at other times;

Plaintiff’s intestate finding the gate open attempted to cross and was struck by a locomotive and killed.

Danforth, Judge, in delivering the opinion of the court of appeals affirming the judgment of the general term sustaining a verdict for the plaintiff, uses this language:

“The defendant, for the better protection of life and to promote the safer and better management of its road, either of its own volition, or under the command of law (Laws of 1884, chap. 439, § 3), had erected gates across Walnut street, on either side of the track, and had stationed a person there to open or close such gates when an engine or train passed.
“ The duty of the company was imperative, and it is obvious that an open gate was a direct and explicit assurance to the traveler that neither train nor engine was rendering the way dangerous ; that none was passing.
“A closed gate was an obstruction preventing access to the road; •an open gate was equally positive in the implication to be derived from it, that the way was safé.” And he adds: “The open gate an affirmative and explicit declaration and representation that neither train nor locomotive was approaching with intent to pass.”

With this declaration of the law from the highest court, it would seem clearly proper to submit it as a question of fact to the jury, whether from all the evidence the deceased was chargeable with contributory negligence.

It is urged by the appellant that the brakeman on the rear car,, ■as the train was backed towards the street, was first to reach the street, saw deceased as he approached the track and signalled him to stop ; but the evidence shows, also, that there were intervening box cars, and while the person standing upon the approaching car •could see deceased and his wagon, yet there is no positive evidence that deceased, seated as he was in his covered carriage, could see any portion of the approaching train.

At least the question was involved in so much doubt upon that subject that we think it presented a proper one for the jury.

It is also urged by the appellant that the fact that the opposite gate was closed was notice to the deceased that the way was obstructed ; but when taken in connection with the fact that the street at this point was 143 feet wide, and that the gates although operated by the same gateman were moved by different cranks or levers, it was for the jury to say whether the deceased had not reasonable grounds for supposing that the opposite gate would be opened when reached by him.

On the whole we think the facts justified the submission of the question of contributory negligence-to the jury as one of fact.

The jury in-this case having found in favor of the plaintiff upon both the questions of defendant’s negligence and the plaintiff’s, want of contributory negligence upon evidence on which they might so find, the judgment upon their verdict must be sustained, unless some error in the admission or rejection of evidence, or in. charging the jury, was committed by the trial judge.

It is urged by the appellant that the ordinance of the common: council of the city of Schenectady prescribing rules and regulations for running cars across any of the streets in the city of Schenectady was improperly offered and received in evidence on the trial. Section 10 of tit 3 of ch. 385 of the Laws 1862, confers upon the common council of cities the power to regulate the speed of railroad cars upon railroads within their respective cities, and makes various rules in reference to the operations of railroads in the same

Under this power the common council of Schenectady, on the 12 th of January, 1883, adopted the following ordinance:

“It shall not be lawful for any railroad corporation, its agents,, servants or employes, or any person, or persons, in charge of a. train, caboose or cars, to cause the same to be drawn, kicked, or backed over or across any of the streets of the city of Schenectady within the compact part of the city, unless they shall cause a person of mature and suitable age to pass in advance of said train, or caboose, so moving and backing within the compact part of said city referred to, for the purpose of giving warning to persons of the ^approach of such cars, or caboose, and such cars when so. moving backwards shall not be moved or backed at a greater rate-of speed than two miles an hour.’’

The introduction of this ordinance was objected to on the ground that it was inconsistent with the provisions of chap. 242 of the Laws of 1889.

This provides that in cities of less than 50,000 population it. shall not be lawful for the common council to restrict the rate of speed of railroad cars to less than thirty miles an hour when gates are established, and persons furnished to attend the same.

It will be seen that the restriction in terms applies only to cities of 50,000 or upward, but there is no proof that Schenectady is a. city of less than 50,000 inhabitants, nor was the objection specifically put on the ground that its population was less than that number, and we fail to see that the introduction of this ordinance was an error for which the judgment should be reversed; besides, this act was not in force when the injury was done.

Several exceptions were taken to the charge of the learned judge and to his refusals to charge in the case, but we have carefully examined them and the authorities cited by the learned counsel, and find in them no grounds of error for which this judgment should be reversed.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concur.


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    The People, Resp’ts, v. Theodore W. Myers, as Comptroller of the City of New York, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Taxes—New York City—Mandamus—Estoppel.
    The comptroller of the city of New York in drawing and signing his warrant upon its chamberlain, directing the latter to pay state taxes to the state treasurer, acts ministerially; and where there are sufficient funds, and the proper officers and bodies have theretofore performed their duties, and done the acts required by statute in the matter, the said comptroller is estopped from interposing obstacles to the application of such money to the purposes for which it was assessed, levied and collected.
    Appeal by the comptroller of the city of Mew York from an order and judgment granting a peremptory writ of mandamus, commanding him to draw his warrant upon the city chamberlain directing the latter to pay to the state treasurer certain taxes due the state.

      William H. Clark (J. W. M. Newlin and George S. Coleman, of counsel), for app’lt; Charles F. Tabor ( William A. Poste, of counsel), for resp’ts.
   Mayham, J.

This is an appeal from a final order and judgment of this court, entered upon the report of a referee at a special term thereof, granting a peremptory writ of mandamus directed to Theodore W. Myers, as comptroller of the city of Mew York, commanding him forthwith to draw and sign his warrant upon the chamberlain of the city of Mew York, directing him to pay to the treasurer of the state of Mew York the sum of $323,259.89, and thereupon to present such warrant to the mayor of the city of Mew York for counter signature, and, upon such warrant being countersigned by said mayor, to deliver the same to said chamberlain.

The judgment also gave the people costs against the appellant as comptroller.

The sum so directed to be embraced in the warrant represented the amount of unpaid state tax to the state treasury levied, assessed and collected upon the real and personal property subject to taxation within the city and county of Mew York for the fiscal year ending October 1, 1887, and payable one-half on the 1st of April, 1888, and the other half on the 1st of May of that year.

It is conceded that at the time- of granting the alternative writ of mandamus in this case, there was and still is in«the treasury of the city of New York an amount of money largely in excess of the amount due the state on this tax applicable to the payment of the same.

The taxing power is one of the sovereign attributes of the state, and its exercise by the legislature for public purposes is unlimited except as specified and restrained by the constitution.

It is true that' the power is exercised through the instrumentality of various judicial, executive and ministerial officers or boards provided under the constitution and laws.

The officers or boards mainly instrumental in levying and collecting this tax ’ are the local assessors, the board of equalization of the state, the state comptroller, the board of estimate and apportionment of the city of New York, the' board of aldermen acting as supervisors, the bureau of taxes and assessments, the bureau for the collection of taxes, which is the tax receiver, the chamberlain’s office, which is the city treasury, and the state treasury, which is the ultimate depository of the state tax.

This case shows that the various officers assumed to exercise their respective functions so far as the equalization by the state equalization board, the apportionment to the city of New York by the comptroller of the state, the final estimate by the board of estimate and apportionment of the city of New York, including therein the entire amount of state tax called for by the certificate of the state comptroller, the board of aldermen acting as supervisors and levying the real and personal property of the city and county of New York the .full amount of tax certified by the state comptroller, for the collection of which they issued their warrant to the receiver of taxes, who proceeded to collect and receive the same, and paid the sums so collected and received by him, or a sufficient amount thereof to pay the state tax in arrears, over to or deposited the same with the city chamberlain, who holds the same subject to the draft or warrant of the. city comptroller for the payment of this claim of the state.

The case shows that the state board of equalization formulated a table equalizing the assessments of 1887 between the several counties of the state, and deposited the same in the office of the comptroller of the state on the 6th day of October in that year, and no proceedings were instituted either before the board itself or in the courts by certiorari, or otherwise, to review or correct any error or irregularities in the same, and the comptroller, as was his duty, took that table as the basis of bis apportionment of the state tax between and among the several counties of the state, including the county of New York.

It is true that some members of the state board of equalization do not profess to have fully understood that tabulated statement; but we do not think that. a sufficient' reason for avoiding the tax levy, or refusing to pay over the same to the state either by the county treasurer of the counties or the city chamberlain of the city of New York.

To allow the city chamberlain, who, as to the state tax, is only charged with the ministerial' duty of drawing his warrant on the chamberlain for the payment of state tax when collected, in this collateral way to determine for himself and the public whether some irregularity or informality had been committed by any or all of the boards of officers by whose acts they were assessed and collected, would make it possible for a mere ministerial officer, such as the county treasurer or chamberlain, to withhold the payment of the moneys levied by the taxing power of the state and paid by .the taxpayers into the custody of such officers, who are but the conduits through which the money is to reach the state treasury, to the great inconvenience and embarrassment of the public service.

Assuming, therefore, as we do, that the comptroller of the city of New York in drawing and signing his warrant on the city treasurer required by this writ acts only ministerially for the state in that capacity, he is estopped from interposing any obstacles to the application of the money to the purposes for which it was levied, assessed, collected and deposited with the treasurer of the city of New York

Upon the opinion, therefore, of the learned referee on that branch of the case we think this order and judgment should be affirmed.

This' view of the case relieves us from considering many other questions raised and urged on this appeal by the learned counsel for the appellant.

The judgment is affirmed, with costs and disbursements.

Learned, P. J., and Lardon, J., concur.


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    The People, Resp’ts, v. Henry L. Gregg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Municipal corporations—Laws 1890, chap. 163—Indictment.
    The charter of the city of Hudson, chapter 468 of Laws of 1872, provides that the mayor " shall be the head of the police of the city.” The defendant was elected such mayor in December, 1888. An indictment charged that the defendant willfully, etc., “engaged” in the manufacture and sale of spirituous and malt liquors, etc., while holding the office of mayor and acting as such, and as head of police, without making and filing the oath required by chap. 163, Laws 1890. On demurrer, Held, that the indictment was bad. It did not conform to § 275 of the Code of Grim. Pro., for there was no “ concise statement of the act constituting the crime,” nor is there set forth the act charged as an offence in the manner required by § 276; no time, place or manner being mentioned.
    2. Same.
    The indictment using the word “ engaged ” does not charge a crime under the_ above statute, chap. 163 of 1890. which is directed against persons * interested ” in the' sale. etc. A person might be engaged in a business, e. g., a teamster, but have no interest therein.
    3. Same—Mayor op city.
    The mayor of Hudson, who its charter provides ‘ ‘ shall be the head of the police of the city,” is not a “ police ofiicial ” within the meaning of the last named statute. The phrase in the charter only means that as chi f executive officer he is invested with authority to head the police or give them directions to preserve order or maintain peace.
    Appeal from an order of the Columbia court of sessions, overruling defendant’s demurrer to an indictment against him in said court, and from judgment of conviction of the defendant, and sentence by the court on the indictment against the defendant.
    The indictment charged that the said Henry L. Gregg did heretofore, and previous to the finding of this indictment, at the city of Hudson, in this county, wilfully, frahdulently and intentionally engage in the manufacture and sale of spirituous and malt liquors, ale, wine and beer, while holding the office of mayor of the city of Hudson, and under the provisions of chapter 468 of the Laws of 1872, as amended, known as the city charter, and apting as such, and as head of police under the provisions of said charter, and while executing the functions of said office of mayor and head of police, without taking, signing and filing the oath prescribed by § 3 of said chapter 163 of the Laws of 1890, as required by said act
    He, the said Henry L. Gregg, having been elected to said office of mayor in December, 1888, to enter upon the discharge of his duties January 1, 1889, and to continue and including December 3!, 1890.
    To this indictment the defendant on being arraigned, filed a demurrer specifying for grounds:

      First. That it appears on the face of said indictihent that the same does not conform to the requirements of § 275 of the Code of Criminal Procedure, in that it does not contain a plain and concise statement of the acts constituting a crime.

      Second. That it appears on the face of the indictment that it does not conform to the requirements of § 276 of the Code of Criminal Procedure, in that it does not set forth the acts charged as an offense.

      Third. That it appears on the face of the indictment that the act or omission charged as a crime is not plainly and concisely set forth therein as provided in subdivision 6 of § 284 of the Code of Criminal Procedure.

      Fourth. That it appears on the face of the indictment that the facts stated therein do not constitute a crime.
    The court overruled the demurrer and no plea having been entered by the defendant a judgment of conviction and sentence was pronounced and entered by the co.urt against the defendant, from which the defendant appeals to the court.

      Marie Duntz (Cadman & Peck, of counsel), for app’lt; A. V. L. Cochran, district attorney, for resp’ts.
   Mayham, J.

The technical and ill many instances prolix forms of pleading in criminal actions or proceedings existing before the enactment of the Code of Criminal Procedure were by that instrument abolished and the forms of .pleadings in criminal actions and the rules by which their sufficiency is to be determined is now regulated by that enactment, § 273, Code of Grim. Pro.

But this does not leave the pleader in criminal actions without well defined rules by which he must be governed and the sufficiency of his pleadings determined.

Section 275 of the Code of Criminal Procedure prescribes what an indictment must contain.

First “ The title of the action, specifying the name of the court in which the indictment is presented and the names of the parties.

Second. A plain and concise statement of the act constituting the crime; and § 276 undertakes as a part of the legislative enactment to prescribe a general form by which the pleader may be .governed in conforming to the rules prescribed in and by § 275, and it provides that if it be a misdemeanor having no general name the pleader must insert a brief description of it as given by the .statute, and adds “ committed as follows; and after giving the name, time and place of the alleged offender and offense the pleader is directed to set forth the act charged as an offense.”

If these are the rules by which the sufficiency of pleading is to be determined, as provided by § 273, we must compare the indictment in these cases with them, to determine whether it substantially conforms to these requirements.

The indictment to which the- defendant interposes this demurrer purports to be for violations by the defendant of §§ 1 and 3 of chap. 163 of the Laws of 1890. Section 1 of that act provides that it shall be unlawful for any excise commissioner, excise inspector, captain, sergeant, roundsman, patrolman, or other police official, or subordinate of any police department, or any commissioner of excise, in the several villages, towns and cities of this state to be either directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer.

The defendant presents three principal questions by this demurrer, each of which seem worthy of careful consideration.

First. Does the indictment set forth the acts constituting the -crime with sufficient definiteness to answer the requirements of § 275 and § 276 of the Code of Criminal Procedure?

Second. Does the indictment charge a crime under the provisions of § 1 of chap. 163 of the Laws of 1890?

Third. Is the defendant as mayor of the city and ex officio the 41 Head of Police ” of the city of Hudson embraced within the description of police officials as referred to in § 1 of chap. 163, Laws of 1890 ?

We think-the first question propounded above must be answered in the negative.

The indictment charges in general terms that the defendant 41 wilfully, fraudulently and intentionally engaged in the manufacture and sale, etc.”

Ho other and more definite designation of the act charged is given in the indictment There is no concise statement in the indictment of the act constituting the crime as required by subd. '2 of § 275 of the Code of Criminal Procedure; nor does the indictment anywhere set forth the act charged as an offense, as clearly required by the form prescribed by the legislature in § 276 -of the Code.

These requirements are clearly embraced in tne Criminal Code, and must be considered in determining the sufficiency of an indictment.

The object of a statement of the act charged as criminal in an indictment is to inform the accused of the exact nature of the charge made against him. That is the primary object of all pleadings in criminal as well as civil proceedings.

It is not enough to allege that the accused committed murder, without alleging the name of the victim, or to charge burglary or forgery, without stating what was burglarized or in what the forgery consisted; nor is it sufficient to allege in general terms, under § 1 of chap. 163 of the Laws of 1890, that the defendant “ fraudulently and intentionally engaged in the manufacture and sale of spirituous, etc.,” without any statement of the time, place or manner.

But we are not left in this case to a pioneer construction of these sections of the Criminal Code when applied to indictments of this character.

This question was fully considered in an indictment not distinguishable in principle from this, in the case of The People v. Burns, 53 Hun, 278; 25 N. Y. State Rep., 97, where Ingalls, Judge, uses this language:

“The omission of such statement in the indictment constituted a material defect, as without it the defendant would be liable to surprise upon the trial and quite likely to be prejudiced by such omission.

“ The defect, therefore, must be regarded as a matter of substance and not merely of form, as it was the right of the defendant to be informed, not merely of the crime charged, but also of the act which constituted it,” and held that the indictment was fatally defective for that reason.

This is in accordance with the rule laid down in People v. Dumar, 106 N. Y., 509-510; 11 N. Y. State Rep., 19.

The next inquiry is, does the indictment charge a crime under the provisions of § 1 of chap. 163 of the Laws of 1890?

The indictment charges that the defendant did wilfully, fraudulently and intentionally engage in the manufacture ana sale of liquors, while holding the office of mayor, etc., but does not charge in terms that he is “ directly or indirectly interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer. ”

The allegation of the indictment might be strictly true and yet the defendant might in no way be interested in the manufacture or sale, within the language of the statute; he might be a common laborer in a brewery or distillery, or an engineer running a distillery, and thus engaged in the manufacture of distilled or fermented liquors, and yet be in no way interested in its manufactory, and the same might be said of an agent employed by the month, to sell, or a teamster employed under a salary for its delivery, and yet have no interest in the business, and it could not be said that he was interested within the language of this act, because in construing a penal statute we must deal with the language employed by the legislature, and are not at liberty to import into it other language for the purpose of broadening its signification.

It must be construed strictly, at the same time giving full force and effect to the language actually employed by the legislature.

It is true that words used in a statute need not in all cases be used in an indictment.

But the legislature, in the Criminal Code, have furnished a rule which should be followed. Section 283 of the Code of Criminal Procedure, upon the subject, provides as follows :

Words used in a statute to define a crime need not be strictly-pursued in an indictment, but other words conveying the same meaning may be used.

But we have seen that the word “ engage,” used in the indictment, does not convey the same meaning as the word interested,” employed in the statute.

We think, for this reason, that the indictment in this particular does not charge the same commission of a crime under § 1 of chap. 163, Laws of 1890.

In the People v. Dumar, supra, the court says : “ If there is no-accusation of any crime, the paper, however formal in other respects, would not be an indictment.”

It is quite true, as claimed by the learned district attorney, that a demurrer to an indictment is not permitted for imperfections of form, and upon this subject we are referred to the case of the. People v. Clements, 107 N. Y., 205; 11 N. Y. State Rep., 384,. where the court says:

“ The Code of Criminal Procedure enumerates the grounds upon which a demurrer may be interposed (Section 323) and does hot. pgrm.it a demurrer for imperfection in the form of the allegations, but, on the contrary, § 285 declares that no indictment is sufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of an imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

The soundness of this-proposition, or the authoritative utterance of the court of appeals, cannot be questioned.

But the objections we have discussed do not relate to matters of form, but, as we think, relate to the substantial rights of the defendant.

The third and last proposition which we are called upon to consider is whether the defendant comes within the list of officials named in § 1 of chap. 163 of the Laws of 1890.

The charter of the city of Hudson makes the mayor a member of the common council, and when present its presiding officer.

Section 15 of the charter, Laws of 1872, chap. 468, § 15, provides as follows : “As the head of the police of the city, he shall preserve peace and good order therein.”

This is the only provision of the charter that we have been able to find that in any way connects him with the police, except that by the same section he has power to remove any policeman.

Does this provision make him a police official, within the meaning of § 1 of chap. 163 of the Laws of 1890? We think not.

He certainly is not police commissioner, police inspector, captain, sergeant, roundsman; patrolman. Does he come within the. other designation, other police official, or subordinate of any police department? We think not.

As chief executive officer of the city, the mayor is ordinarily invested with authority of heading the police, or giving direction to the police force, for’ the purpose of preserving order and maintaining peace, but in no ordinary acceptation of that term can he be regarded as a police official, and we think it would be doing violence to the ordinary meaning of the term, as well as to the intention of the legislature, in the absence of an express declaration of legislative intent, to hold that the mayor of Hudson is one of the police officials of that city.

If the legislature had intended to make the mayor a constituent part of the police his name would have preceded that of police commissioner instead of leaving it to be spelled or guessed out of the term “police official” and named in connection with subordinates to the police department.

We find no rule of construction that would justify us in holding that the mayor is a police official when he is nowhere expressly designated as such, when such a construction would make him amenable to the provisions of a criminal or penal statute.

“ It is a well established rule of construction that statutes which create criminal offenses are to receive a strict and not a liberal construction and they should not be enlarged by interpretation beyond their fair meaning and import.” Sherwin v. People, 100 N. Y., 361 and 362.

If we are right in this view then the mayor of Hudson was not required to take the test oath prescribed by § 3 of chap. 163 of the Laws of 1890, as he was not one of the officers designated in that section.

The judgment of the court of sessions of Columbia county overruling the defendant’s demurrer to the indictment and the conviction thereon must be reversed and the defendant must have judgment on the demurrer.

Learned, P. J., and Landon, J., concur.