text:
    Joan R. Quinn v. Michael O’Keefee
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)

      It Highways—Law op road—Presumption prom violation.
    The fact that one of the parties at the time of a collision between their vehicles was on the wrong side of the road, though evidence of negligence on his part, is not conclusive.
    8. Evidence—Opinion op Witness.
    A witness may testify that in his best judgment a person charged with negligence was intoxicated at the time of the accident.
    8. Personal injuries—Evidence—Loss op weight.
    Plaintiff in an action for personal injuries may testify as to the difference in his weight before and after the accident.
    4. Opinion evidence—Medical expert.
    Testimony of a physician in an action for personal injuries, that a physician “ has very little positive knowledge. He gives his judgment. I can give my judgment in litis case. That is all,”—given in response to a question as to whether he could state positively the effect of certain conditions, does not give any additional force to his testimony as to plaintiff's injuries.
    6. Same—Categorical answer.
    An_ expert witness will not be required to give a categorical answer to a question of opinion evidence, which he says he cannot answer categorically.
    6- Same—Subject of expert knowledge.
    Whether a fall from a carriage could produce an injury of a certain character is a proper subject for expert testimony.
    7. Same— Probable result of injury,
    It is proper, in an action for personal injuries alleged to have resulted in an affection of the spinal cord, to ask a medical expert whether a wrench, to the backbone, such as he had testified had been sustained by plaintiff, did not sometimes involve some sort of disorganization of the spinal cord or its coverings.
    8. Same—Probabilities as to physical condition.
    A medical expert, in an action for personal injuries, may testify that changes had taken place in plaintiff’s spinal cord, and that he could tell with reasonable certainty that they were one of two things (specifying them,> and that the injury sustained by plaintiff could produce both, as probabilities are proper to be considered in reference to an existing physical condition.
    9. Highways—Law of road—Passing Vehicles.
    A person driving along a highway is not, on meeting a vehicle, obliged to go the extreme right of the usable road, but it is sufficient if he goes as far to the right as prudence requires.
    10. Personal injuries—Excessive damages.
    A verdict for $8,000 for personal injuries is not excessive, where it appears that the earning power of plaintiff, in his professional capacity as a physician, had been materially lessened, and that his injuries, besides causing him much suffering, resulted in a diseased condition, progressive in its character, and probably incurable.
    Appeal from city court of Brooklyn, trial term.
    Action by John R. Qninn against Michael O’Keeffe for personal injuries. From’a judgment entered on a verdict for $8,000 in. favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    James D. Bell, for appellant.
    Charles J. Patterson, for respondent.
   WILLARD BARTLETT, J.

The plaintiff, a physician 4(> years of age, has recovered a verdict of $8,000 for injuries received on the 21st day of March, 1892, in consequence of a collision on Ninth avenue, near Third street, in the city of Brooklyn, between the phaeton in which he was driving and a truck alleged to have been negligently driven by the servants of the defendant. The vehicles were proceeding in different directions, and in accordance with evidence in behalf of the plaintiff, they would have passed one another without accident if the truck had continued to move upon the 'same line as it was moving along when first closely observed by Dr. Quinn. He testified that there were two men on the truck, one of which held the reins, while the other had a whip, which he was plying to the team ; that they were driving rapidly, and appeared to be partially intoxicated and that as they approached him the truck made a sudden lunge to the left, and ran into the forward part of his phaeton, throwing him out into the street. There was testimony to the effect that, the fall had resulted in a progressive malady of the spinal cord, from which it is reasonably certain that the plaintiff will never recover. The appeal book is very voluminous, and the brief for: the appellant covers nearly 60 printed pages. The questions, raised and discussed are very numerous, but have all been carefully examined. It will be conducive'to clearness to consider them in the order in which they are presented by the appellant.

The appellant contends, in the first place, that the plaintiff was-negligent on his own showing, regardless of the law of the road, and ai’gues that the approaching truck was visible at so great a. distance that the plaintiff ought to have turned out to avoid it. The answer to this is that, if the truck had kept on in the line on which it was going, there would have been no collision, and the plaintiff was not bound to anticipate that the team would beslmrply turned to the left, in the manner which caused the accident.

In the next place, it is earnestly insisted that the plaintiff was-guilty of contributory negligence, bedause he violated the law of the road. Section 157 of the highway law provides as follows:

“ Whenever any persons travelling with any carriages shall meet on any turnpike road or highway, the persons so meeting shall seasonably turn their carriages to the right of the center of the road, so as to permit such carriages to pass without interfer-: ence or interruption, under the penalty of five dollars for every neglect or offence, to be recovered by the party injured.’’ Laws 1892,_c. 568.

This enactment is derived from the Eevised Statutes. There is no doubt that the plaintiff’s vehicle was somewhat to the left of the middle of the line of Ninth avenue when the collision with the defendant’s truck occurred. In Smith v. Dygert, 12 Barb. 613, it was held that the center of the road, when obscured by snow, was the center of the beaten or traveled track, without reference to the worked part. In Baring v. Lansingh, 7 Wend. 185, the dividing line contemplated by the statute was declared to be the center of the worked part of the road, “ unless the situation of the road :s such that it is impracticable, or extremely difficult, for the party to turn out.” The learned trial judge charged, in various forms, that the plaintiff must show that the space to his right was impassable, in order to free himself from contributory negligence in being to the left of the middle of the road. This was a. statement of the law more favorable to the defendant than he was-entitled to require. .The true rule is that a violation of the law of the road, while evidence of negligence, is not conclusive. It has been held in Massachusetts, Maine, Connecticut, and other states, that the mere fact that the plaintiff at the time he received the injury was on the wrong side of the road, instead of being on that prescribed by the statute, will not prevent him from recovering damages. Smith v. Inhabitants, 321 Mass. 216 ; Bigelow v. Reed, 51 Me. 325, 334; O'Neil v. Town of Bast Windsor, 63 Conn. 150, 27 Atl. 237. In the case of Riepe v. Elting, 89 Iowa, 82, 85, 86, N. W. 288, there is a very full and satisfactory review of the decisions on this branch of the law, which concludes with this declaration:

“ The general rule seems to be that, when a collision occurs between the horse or vehicle of a person on the wrong side of the road and of a person coining towards him, the presumption is that it was caused by the negligence of the person who was on the wrong side of the road, but that his presence on that side may be ■ explained and justified.”

The presence of the plaintiff to the left of the middle of Ninth avenue in the present case was amply justified, if it was true, as he stated under oath, that the street to his right was impassable.

The learned counsel for the appellant next argues the validity of nineteen exceptions to the rulings of the trial court in regard to the admission and exclusion of evidence. These exceptions I will discuss in their numerical order:

(1) The testimony of plaintiff to the effect that, in his best judgment, the men on the truck were partially intoxicated, was properly admitted. People v. Eastwood, 14 N. Y. 562.

(2) There was no error in permitting the plaintiff to testify that, if the men on the truck had continued upon the line they were on before the truck made the lunge, they would have passed him at a distance of about three feet. This was only an indirect way of stating what was the position of the truck, and in what direction it was moving, at the time to which the statement referred.

(3) It was proper to receive the evidence which the plaintiff gave as to the difference in his weight before and after the accident. Whether the change was due to any injurious effects of the accident or not was a question for the jury.

(4) After testifying to certain symptoms which the plaintiff exhibited, Dr. Lewis L. Pilcher was asked whether he was able to state with reasonable certainty from what part of the body the condition proceeded which created these difficulties. There was an objection to this question, the objection was overruled, the defendant excepted, and the witness answered, “ These symptoms arise,—the peculiar irritable symptoms arise,—and indicate a disordered condition of the lower portion of the spinal cord.” Strictly speaking, the question called for a categorical answer, “Yes” or “No,” and was unobjectionable; but, assuming that it added the witness for his opinion as to what the symptoms indicated in respect to the part of the body which was affected, we cannot see why it was not proper. The inquiry related to a matter of medical skill, knowledge, and experience, and was addressed to a physician who had himself examined the plaintiff after the injury.

(5) On cross-examination Dr. Pitcher was asked whether he could state positively to the jury that, if one or the other of two assumed conditions existed, it would produce that condition, without speculation, and from his knowledge of the case as a physician and surgeon. Hh answered; “ A physician or surgeon has very little postive knowledge. He gives his judgment. I can give my judgment in this case. That is all.” A motion was made by the defendant’s counsel to strike this answer out, but the court denied the motion, saying that the answer might stand by was of explanation, to which ruling the defendant duly excepted. It is argued that the witness was thus permitted to give additional force to his testimony, to the injury of the defendant, but I cannot per-eeive that the answer could have had any such effect. On the contrary, it tended to show .that the witness, who had been called by the plaintiff, could say very little of his own positive knowledge about the case. How such -a statement could harm the defendant, I cannot understand.

(6) The ruling that the court could not compel a expert witness to give a categorical answer to a question of opinion evidence, which the witness said he was unable to answer categorically, was correct. The question was not in such a form as to justify the court in holding that the professed inability of the witness to give a categorical answer was untruthful.

(7) Dr. Pitcher, in the course of his cross-examination was asked whether sitting in one position for a long time sometimes occasioned numbness of the limbs. The witness answered, “Not necessarily,” This response gave rise to a long colloquy between the witness, counsel, and the court, resulting finally in the statement by the witness that there must be something else besides the sitting in one position to cause the numbness. This explanation disposed of the exceptions taken in behalf of the defendant in the ■course of the discussion over the matter.

(8) Speaking of the street on which the accident occurred, plaintiff’s counsel asked Dr. Pitcher whether there was snow when he drove over it in his carriage at other times-than on the day when the plaintiff was injured. The exception to the allowance of this question, if it had been good otherwise,' was rendered unavailing .by the answer, because the witness responded that he did not remember whether he had ever driven over the street when there was snow or not.

(9) Objection was made and exception taken to the allowance of a hypothetical question to Dr. Pitcher, which assumed that the plaintiff had sustained a wrenching of the spine, and had developed an exaggerated reflex in the muscles of the legs, and a numbness proceeding from some spinal disorder. The objection was based on the ground that the question assumed a state of facts that had not been proved. The question, however, came fairly within the rule that an interrogation of this kind is unobjectionable if the assumptions contained in it are within the probable or possible range of the evidence. Harnett v. Garvey, 66 N. Y. 641; Stearns v. Field, 90 id. 640.

(10) After Dr. Pilcher had answered the hypothetical question above mentioned by saying that he would ascribe the difficulties in the plaintiff’s limbs to a disturbance in nutrition and circulation in the lower part of the spinal cord, lie was asked to assume the same facts again, end state to what he would attribute that disturbance “ in the absence of any other known cause.” The witness answered, over objection and exception by the defendant, “It ■was caused by the accident received three years before.” It was argued that the plaintiff’s counsel had no right to assume the absence of other causes, but I think he could properly do so, in view of the plaintiff’s testimy, subsequently given, to the effect that he knew of no other cause which could have occasioned his sufferings. Furthermore, the question was equivalent to the asking ■whether the accident described in the hypothesis was capable of producing such physical results, and1 in that view it was also-proper.

(11) The testimony of the same witness that a fall from a carriage could produce such a wrench to the backbone as he had described was also admissible. It is the constant practice of the courts, in this class of cases, to admit “the expressions of opinions by competent medical experts upon an ascertained physical condition of suffering or bad health, as to whether that condition might have been caused by, or be the result of, a previous injury.” Turner v. City of Newburgh, 109 N. Y. 301, 308; 16 N. E. 814.

(12) The succeeding question, as to whether such a wrench did not sometimes involve some sort of disorganization of the spinal cord or its coverings, was not objectionable, under the Strohm or Alberti Cases (Strohm v. Railway Co., 96 N. Y. 305; Alberti v. Railway Co., 118 id. 77; 23 N. E. 35). Clegg v. Railway Co., 1 App. Div. 207, 210; 37 N. Y. Supp. 130. The purpose was merely to show that the wrench which the plaintiff claimed to have received -was capable of producing the condition of the spinal cord indicated by the plaintiff’s symptoms.

(13) The hypothetical question put to Dr. William Browning must be sustained upon the same grounds as those stated in discussing the hypothetical question put to Dr. Pilcher.

(14) The same witness, in the course of his direct examination, stated, in substance, that some changes had taken place in the lower portion of the spinal cord of the plaintiff, and that he could tell with reasonable certainty that they were one of two or three things,—either some inflammatory changes about the lower portion of the cord, or some in the cord itself,—and that a wrench of . the spine would be a competent cause to produce both of these troubles. The appellant argues that this evidence should not have been received, because an expert should not be permitted to answer at all when the question only was that a given injury is capable of producing one among two or three conditions, either of which conditions is equally indicated by the symptoms of the patient. But there is no rule of evidence which excludes such testimony. Probabilities are proper to be considered in reference >to an existing physical condition, and it would be manifestly unjust to keep from the consideration of a jury the expert evidence of a physician that the plaintiff exhibited symptoms which were equally characteristic of two different internal conditions, either of which conditions could be occasioned by the accident which had befallen the patient, simply because the witness was unable to sav with certainty which of the internal conditions actually exisu d.

(15) I do not understand this witness had stated that any wrench of the spine would have been a competent cause to produce the troubles which he described, but at all events the question to which objection was made was proper in form, and the objection was rightly overruled.

(16) This exception raises the same question as that raised in reference to Dr. Pilcher’s answer to the hypothetical interrogatory, wherein the witness was asked to assume that there was no other known cause for the condition of the plaintiff, and it is likewise untenable.

(17) The testimony of Dr. Browning as to the change in the plaintiff’s appearance since the accident was unobjectionable. It came from a physician, but would have been admissible from a layman. Cannon v. Railroad Co., 9 Mise. Rep. 282; 61 S. R. 147.

(18) As the plaintiff’s disability was shown to have continued into 1894, it was proper to take evidence as to his income in that year. It is true, no doubt, that the falling off may have been dne to other causes than the accident; but such testimony is competent, and it is for the jury to say how far the diminution in the plaintiff’s receipts was due to his inability resulting from his injuries, and how far to other circumstances.

(19) The questions asked of the defendant in regard to the pavement of Ninth avenue beyond Fourth street were proper cross-examination to test his knowledge, and in view of his statement on direct examination as to the good condition of the pavement between Third and Fourth streets; and in any event the inquiry was harmless, as the answer showed that the defendant knew nothing about it.

So much for the defendant’s exceptions to the rulings of the trial court in respect to questions of evidence. In the brief in his behalf ten other exceptions are discussed, which were taken to the rulings of the court upon requests to charge. There were upward of thirty such requests presented by the defendant’s counsel, involving to a great extent the repetition of substantially the same legal propositions, in varying forms, with slight shades of difference in expression. In this respect the record well illustrates the difficulties which beset the work of a trial judge under our system of practice, which permits or tolerates the excessive multiplication of' requests to instruct the jury. I will review the exceptions on this branch of the case also in their numerical order.

(1) The court charged the jury, at the request of the defendant, that:

“The presumption of law is that, when vehicles meet on a public highway, the driver who attemps to pass to his left of the center of the road is negligent; and the plaintiff cannot recover here, and your verdict must be for the defendant, unless he satisfies you by a fair preponderance of proof that there were such obstructions in Ninth avenue, at and about the place of collision, that he could not use any portion of the highway to his right hand.”

To this the learned judge added, “and that there was an insufficient space for the truck to pass between him and the curb un his left,” to which qualification the defendant excepted. I understand the effect of the qualifying words to be that the plaintiff was to be deemed negligent for not using all the space to his right, if there was not enough room for the truck to pass to his left. This was the view of the plaintiff’s obligation expressed in the body of the charge, and was there correctly stated in these words:

“.When he [plaintiff] saw a vehicle approaching, it was his duty to give it sufficient space to pass him on his left, the passing vehicle keeping to its right. That he was bound to do, and he was bound to turn out even on to what he claimed to have been the rougher portion of Ninth avenue, if that was requisite, in order to give the approaching vehicle ample space,—not crowding it down to a few inches, but to give it a full, reasonable space to pass by.”

(22) The court refused to charge that, even though the road west of the center was rough and impassable, still the plaintiff was in duty bound to go as far as he could to avoid a collision, and if he failed to do so he could not recover. By this refusal the trial judge did not hold that it was not the duty of the plaintiff to do all that a reasonably prudent man could to avoid the collision, but he merely declined to instruct the jury, as matter of law, that the plaintiff would be barred from a recovery unless he kept to the very furthest right of the passable road. Even if the refusal was error it was corrected by the subsequent instruction, at defendant’s request, that it was .the plaintiff’s duty to seasonably turn his horse and carriage to the right, if necessary, sufficiently far to avoid the collision, and that if he failed to do so he could not recover. The request to charge that under the evidence there were 18 inches of paved street to the west of the railroad track in Ninth avenue, which the plaintiff could have used, but did not use, was properly refused. The evidence on that subject was not undisputed.

‘ (3) After charging the jury that if there was a space of 18 inches, by the use of which the plaintiff could have avoided the collision, it was his duty to turn out to avoid the accident, the court charged, at the request of the plaintiff’s counsel, that “he was only obliged to make that turn provided the situation in his front was such as to advise a reasonably prudent person that it ought to be made.” There was no error in this. The necessity of turning from his course at all depended on what was the situation in front of him. He was bound to turn if prudence required it, not otherwise.

(4) The court, being asked to charge that the plaintiff could not recover if he failed to give defendant’s truck as much leeway as possible, did charge that he could not recover “ if he failed to give the defendant’s truck as much leeway as was reasonably necessary for its use in passing him.” The exception to this modification is not well taken. It involves the assumption that the plaintiff was bound to go to the extreme right of the usable road, whether prudence required it or not, which is a stricter measure of obligation than I think the law imposed on him.

(5) The defendant excepted to the instruction, given at the instance of the plaintiff, that if the right side of Ninth avenue “was substantially impassable, by reason of loose paving stones lying on the surface of the street, or by reason of any appearances that it would be extremely difficult to travel there," then the plaintiff wa justified in confining himself to the beaten and traveled portion of the road. The only part of this instruction about which there can be any doubt is that which stated that an apparent difficulty of passage, if extreme, would relieve the driver from the rule of the road. I see no valid reason, however, why it should not. A person driving upon a public highway, perhaps for the first time, must of necessity trust to appearances, and be guided by them. If a portion of the road looks dangerous, a prudent driver will keep off it. He cannot take the time to stop and alight and examine to ascertain whether it actually is impassable, or difficult of passage, as it seems. Prudence demands that he shall avoid it unless it looks as though it could be safely traveled over, and if he does avoid it the fact that it really was passable, although it seemed not to be so, should not affect the character of his act.

(6) In response to a request to charge that, “ if the westerly side of Ninth avenue at the point of collision was in a -reasonably passable condition for the plaintiff to drive upon, it was the plaintiff’s duty, to give the defendant’s truck the entire portion of Ninth avenue easterly of the center, along which to pass, in order to avoid a collison," and that if he failed to do so he could not recover, the court said to the jury, “I charge you that he was bound to give, as I have already charged you, the truck ample space to pass by,— to turn out seasonably to avoid coming into collision with it. That is as far as I will go on that’’ The request might have been wholly refused without harm, because, as has been shown in discussing the effect of a violation of the law of the road, it is not conclusive evidence of contributory negligence. Still the trial court had held otherwise, and probably did not intend to vary from that view in this instance. The substance óf this request had been charged previously, and was charged subsequently ; and the failure to give the instruction in full at this point in the trial could not hav% prejudied the defendant, even if the proposition of law had been correct.

(7) The seventh exception is untenable, for the reason already set forth in regard to the second and fourth exceptions.

(8) The court left it to the jury to say whether the plaintiff was right or not if he assumed that the truck would adhere substantially to the line of passage it was coming on, and would not lunge over on him as it reached him, provided the jury believed that he had left ample space for the track to drive along past him without coming into collision; not calculating down to feet and inches, but giving it ample space. This instruction was favorable to the defendant, and afforded him no good ground for exception.

(9) The ninth exception involves substantially the same point as the second and fourth exceptions, which have already been discussed.

(10) The last exception is unavailing, because the subject-matter had been sufficiently covered by charging the request of the defendant numbered 18, wherein the court had fully defined the plaintiff’s duty. Moody v. Osgood, 54 N. Y. 488; Rexter v. Starin, 72 id. 601.

The only remaining point relates to the amount of the verdict I do not think this can be deemed excessive, in view of the fact that there is evidence in the record from which the jury could infer that the earning power of the plaintiff in his professional capacity has been materially lessened as a result of the accident, and also that his injuries, in addition to having caused him much pain and suffering, had resulted in a diseased condition, which was progressive in its character, and probably not curable.

In my opinion the judgment and order appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: WILLARD BARTLETT,

license: Public Domain

text:
    Village of Hempstead v. Ball Electric Light Company.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Nuisance—Electric poles and wires in streets.
    Poles, wires, and lamps placed in the streets of a village for the purpose of lighting them, but no longer used, are a nuisance, and their removal may be compelled at the suit of the village.
    2. Municipal corporations—Obstruction op streets—Action by villaoe.
    The trustees of a village may sue in its name to compel the removal of obstructions in the streets; Laws 1879, ch. 291 (Village Law), tit. 7, § 1, as amended by Laws 1871, ch. 870, declaring a village incorporated thereunder a separate highway district, and that the trustees shall have all the powers of commissioners of highways of towns. One of the powers under Laws 1892, ch. 686, § 15, is to sue in the name of the town to sustain the rights of the public in any highway in the town.
    Appeal from special term, Queens county.
    Action by the village of Hempstead against the Ball Electric Light Company to compel defendant to remove its poles, wires, and elecftric lamps from plaintiff’s streets. There was a judgment in favor of plaintiff, and defendant appeals.
    Van Vechten & Delavan, for appelant.
    Weller & Davison, for respondent.
   WILLARD BARTLETT,

J. The purpose of this action was to procure the removal from the streets of the village of Hempstead of certain poles, wires, and lamps placed therein by the defendant in order to furnish electric light to the village. By the terms of a contract made in August, 1892, between the parties to this action, the Ball Electric Light Company undertook to erect in the village an electric light plant, and furnish certain arc and incandescent lights, without unnecessary interruption, for five years from October 15, 1892, for which it was to receive a stipulated compensation. The village was lighted, under this agreement, up to the end of July, 1894, when the defendant ceased furnishing light, on the ground that the paper already mentioned, purporting to be a contract, was absolutely null and void. Since that time the poles, wires, and lamps of the defendant in the village streets have been wholly disused for illuminating purposes, and the defendant, although duly requested so to do, has neglected to remove them. The present action was instituted by the trustees of the village, in its name to compel their removal on the ground that they constitute an unlawful obstruction in the highway, amounting to a public nuisance. The plaintiff prevailed upon the trial at special term. The defendant, in asking this court to reverse the judgment, relies •upon two main grounds: First, that the acts complained of do not constitute a nuisance; and, second, that an action to abate a nuisance cannot be maintained by this plaintiff, but, if maintainable in equity at all, must be in a suit instituted upon the relation of the attorney general or in the name of the people of the state.

The cases cited in behalf of the appellant in support of the proposition that the acts complained of do not constitute a nuisance, so far as they relate to telegraph poles or poles for electric lighting, apply only to such structures when placed in the public streets or highways by legislative authority, and when used for the purpose for which they were intended. They afford no sanction whatever to the idea that a corporation wlii :h has availed itself of the per■mis.Mon of the municipal amthorities to occupy a portion of the highway with an electric lighting plant, upon its express undertaking to furnish the municipality with light, can lawfully insist •upon maintaining the-structures which it has thus erected after it has absolutely refused to fulfill its contract and supply the light. We entertain no doubt whatever that under such circumstances the disused poles, wires, and lamps constitute unlawful obstructions which it is the duty of the corporation to remove.

As to the second point, the respondent recognizes the authority of Rozell v. Andrews, 103 N. Y. 151; 35 S. R. 63; and concedes that such an action as this could not have been maintained by the village trustees, in the name of the village, prior to the enactment of the highway law (Laws 1892, ch. 686). Section 15 of the highway law provides as follows:

“Commissioners of highways may bring an action in the name of the town against any person or corporation to sustain the rights of the public to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or suffered, or expense made or incurred by such town in consequence of any act or omission of any such person or corporation in violation of law or contract in relation to such highway.”

The village law (chapter 291, tit. 7, § 1, Laws, 1870, as amended "by chapter 870, Laws 1871) declares that:

“ A village incorporated under this act shall constitute a separate highway district within its corporate limits exempt from the superintendence of any one except the board of trustees, who shall be commissioners of higways in and for such village and shall have all the powers of a commissioners of highways of towns in this state, subject to this act. ”

We think these two enactments, taken together, authorize the maintenance of an action by the trustees of an incorporated village to compel the removal of an unlawful obstruction on the highwav which 'constitutes a nuisance. The grant of power to eom■anissioners of highways in section 15 of the highway law is very broad, and, under the provision which we have quoted from the village law, the board of trustees are expressly declared to be commissioners of highways for the village, with all the powers of commissioners of highways of towns. The phrase “subject to this, act,” in the village law. does not seem to be a limitation which has any bearing upon this question.

As to the suggestion that the proper remedy is either by indictment or by an action instituted on the relation of the attorney general in the name of the people, it is sufficent to quote what was-said by Maryin, J., in the case of Griffith v. McCullum, 46 Barb. 561-569, referred to with approval by the court of appeals in Law. ton v. Steele, 119 N. Y. 226-238, 29 S. R 581, 995.

“That which is exclusively a common or public nuisance cannot lawfully be abated by the private act of individuals. The remedy is an indictment,—a criminal prosecution,—unless some other remedy has been provided for by statute, as is the case in some of our city and village acts of incorporation.”

Here some other remedy has been provided for by statute, aspeare from the provisions of the highway law and the village law„ to which reference has .been made. We may add that the right of the trustees of a village to maintain an equitable action to restrain unlawful interference with a village highway has already been upheld by this court in the case of Town of North Hempstead v. Gallagher, in which the judgment was affirmed without an opinion at the June term. 39 N. Y. Supp. 1184.

The judgment of the special term should be affirmed, with costs» All concur.


author: CULLEN, J.

text:
    Van Da Linda v. Stevens.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1895.)
    Partnership—Evidence op.
    Tbe existence of a partnership between plaintiff and defendant is established by evidence that defendant and plaintiff’s husband had been partners for several years; that the husband, with the knowledge and at the instance of defendant, assigned all his interest in the concern to plaintiff, after which he took no further part in the business; that, in an action brought by a third person against plaintiff and defendant as partners, defendant stated in his answer, and testified on the trial, that plaintiff was his partner ; that after the transfer defendant paid plaintiff moneys from the business, and frequently declared to her that she was his partner ; and that half of the profits of the business were placed to plaintiff’s credit,— though defendant testified that at the time of the transfer plaintiff’s husbind had no substantial interest in the concern, that the payments to plaintiff were mere gratuities, and that he never told plaintiff she was his partner.
    Appeal from special terms, Kings county.
    Action by Julia A. Yan Da Linda against Augustus P. Stevens to dissolve a partnership, and for an accounting. From an interlocutory judgment in favor of plaintiff, defendant appeals.
    Almet F. Jenks, for appellant.
    Abraham Gruber and T. B. Chancellor, for respondent
   CULLEN, J.

This action is to dissolve a partnership alleged to> exist between the plaintiff and the defendant, and for an accounting. The answer of the defendant denies the partnership. The evidence shows that the defendant and James Van Da Linda, the husband of the plaintiff, had been partners in business of carpet cleaning from the year 1872 to the year 1885. In September, 1885, James A. Van Da Linda, by an instrument in writing, assigned and transferred all his interest in the business and assets of the partnership to the plaintiff. This was done with the knowledge and at the instigation of the defendant. Thereafter James A. Van Da Linda took no further part in the business. These facts were not disputed The plaintiff testified that after the transfer the defendant paid to her moneys from business continuously for a long period, and repeatedly declared to her that she was his partner. The defendant testified that at the time of the transfer the husband had no-substantial interest in the co-partnership, having largely overdrawn his share therein. He admitted paying sums of money to the plaintiff, but asserted that they paid to the plaintiff as mere gratuities, from feelings of kindness, and denied that he ever told the plaintiff that she was his partner. The plaintiff put in evidence the books of the business, which showed that for a number of years the profits were ascertained, and that half their amount was placed to the defendant’s credit and half to her own, the payments to her being .charged to her account. It was also shown that, in the action brought by a third party against the plaintiff and defendant as partners, the defendant answered, admitting that fact, and also, on the trial of the action, testified that the plaintiff was his partner» The special term found that the plaintiff and defendant were partners, and decreed a dissolution and accounting.

The appellant is unquestionably correct i-n his position that the assignment to the plaintiff from her husband did not constitute her a> partner with the defendant. T. Pars. Partn. § 106. As assignee of her husband’s interest in the firm, her sole right was to an account, and to receive her assignor’s share of the surplus upon the winding up of the partnership. Marquand v. Manufacturing Co., 17 Johns. 529 ; Menagh v. Whitwell, 52 N. Y. 146; Tarbell v. West, 86 N. Y. 280.

(The defendant was entitled to possession of the partnership property, and to dispose of it,—to close out the partnership business.) But though this was the status of the parties upon the husband assigning his interest to his wife, it was entirely possible for the parties to-change that position and become partners. No form of words or written instrument is requisite to create that relation. It may be that the parties thought the assignment made them partners, and for this reason they subsequently conducted themselves as partners. But this error would not limit the effect of such conduct. On the-assignment, of a partner’s interest, it is entirely competent for the other partners to receive the assignee as a partner, though it is not the assignment, but the reception, that creates the partnership.^ T. Pars. Partn. § 106. The trial judge has found that after the assignment the plaintiff and defendant did become partners. The evidence not only justified this finding, but is so conclusive on the question, that any other finding would have been palpably erroneous.

The judgment appealed from should be affirmed, with costs.

All concur.


text:
    Andrew F. Stourbridge v. Brooklyn City R. Co.
    (Supreme Court, Appellate Divison, Second Department.
    October 6, 1896.)
    2. Master and Servant—Safe Place for Servant to Work.
    Cross beams fastened to the flanges of an elevated railroad to support a trough which is bolted to the beams do not constitute “ the place” of work of an employe whose duty is to bore holes in the beams for the holts by which the trough is supported, but they are a part of the structure.
    22. Same—Fellow Servants.
    Where a master furnishes a sufficient quantity of timber for beams to housed in a structure in course of erection, and provides for their inspection, in order that defective beams may be rejected, the inspection is merely a detail of the work, and the inspector is a fellow servant of those at work on the structure.
    Appeal from city court of Brooklyn, trial term.
    Action by Andrew F. Stourbridge, as administrator of John P. Stourbridge, deceased, against the Brooklyn City Railroad Company, to recover damages for alleged negligence causing the death of plaintiff’s intestate. From a judgment dismissing the complaint on the merits at the end of defendant’s case, and from an order •denying a motion to set aside the direction dismissing the complaint, plaintiff appeals.
    Paul E. De Fere, for appellant.
    William W. Goodrich, for respondent.
   CULLEN, J.

This action is brought by the administrator of the •servant against the master for negligence causing* the servant’s •death. The defendant was equipping its surface railroad for opertion by electricity. For this purpose it was constructing and affixing to the structure of the elevated railroad a channel or trough to carry the trolley wire. Cross beams were fastened to the flanges of the elevated railroad. To these were bolted the channels or troughs. The plaintiff’s intestate was engaged in boring holes in a cross beam throng which to pass a bolt. In that work he was seated on the beam. While at work, the cross beam broke, precipitating him to the ground, by which he received injuries from which he died two days later. The deceased weighed about 120 pounds. It was conceded that the beam, if sound, should have sustained three or four times this weight. The only evidence as to the condition of the beam was given by two co-employes of the deceased, both of whom testified that the break was a long one. One •of the witnesses further testified that on examinating the broken -ends of the beam he found in the interior a knot or carl, but that on the surface of the stick the grain was straight, and there was no appearance of the knot. A carpenter placed on the stand as an expert was asked by plaintiff if it were possible for a curl to exist in a stick of spruce three by four inches, and not be visible on the outside of the stick. This was excluded, and the defendant excepted. Evidence showed that the timber was of good character, and bought from reputable dealers. It was conceded that in a quantity of such timber there will genrally be found defective pieces. For this reason it is necessary to examine or test the timber before use. It was shown that the timber was cut into proper lengths in the defendant’s yard; that all pieces showing knots •or curls were rejected. When the stick were brought upon the ground to be put in place, they were subject to tests by striking them on the pavement and listening to the sound, and by trying their strength by jumping upon them or straining them between the spokes of the wagon wheels. It may properly be conceded that the breaking of the stick, under the circumstances, proved its defective character. But to establish negligence on the part of the -defendant it was necessary to go still further, and to show that the exercise of proper case in inspection would have discovered the •defective character of the stick, and that the want of such care was a failure in the performance of the duty of the master, and not in that of a fellow servant. Assuming that, had the question excluded been answered, the answer would have been that the curl would have shown on the surface, I do not see that this evidence would have aided the plaintiff. His previous witness had testified that there was a curl in the interior, and that there was no indication of it on the surtace, but that on the surface the grain was straight. The evidence excluded, if admitted, would have tended as much to discredit the statement that there was a curl in the interior of the beam as that there was ño appearance of it at the ■ surface, and this statement was the only evidence to establish the appearance of any defect. But if it be assumed that there was evidence from which the jury might have found that there was negligence in the inspection or examination of the stick which broke, the question remains, was the negligence the negligence of the master? The plaintiff contends that the case fails within the principle that a master is bound to furnish a reasonably safe place for his servants to work. If this rule is applicable to the present case, then it would follow that for the negligence of any servants to whom the master had committed the duty of providing a safe place, the master himself would be liable. I think, however, that this is not the case of “ a place,” within the meaning of the rule. As stated in Butler v. Townsend, 126 . Y. 105, 26 N. E. 1017, doubtless, in one sense of the term, the employe must always be in some place; and doubtless, also, the place, in a certain sense, is not safe if an accident occurs there. But the rule that the master must provide a safe place for work only applies where the work and the place is not connected,—where the work is not in the construction of the place, as in the case of a mill, a factory, mine, ship, well, etc. In the present case the cross beam was not furnished for the purpose of providing the plaintiff a place to work, but as a part of the structure which he and the other workmen were engaged in erecting. The defendant might have provided a beam of such dimensions as to have been wholly unable to sustain the plaintiff’s weight, yet, if good in its character, and sufficient for the purpose intended, there could have been no liability on the part of the defendant for that reason alone. I do not mean to say that the defendant owed no duty to its workmen in the premises. If there was a latent danger of which it had knowledge, it should have apprised the workmen. But the distinction I seek to impress is that here the beam was part of the structure,—the common work upon which all the employes were employed,—and the use of it by the deceased for support the mere incident. In the case of nearly all buildings or structures it is the common practice to use the part of the structure that may at the time be erected as a means to enable the workmen to obtain positions from which to prosecute the remaining work. It makes avast difference in the question of the liability of the master whether, when a servant meets with an accident from a defect in the previous work, occurring through the negligence of a servant engaged in its construction, the negligence is to be deemed as arising from a failure to provide a safe place, or as negligence in the general enterprise in the prosecution of which all the workman are engaged. If the first, the master is liable, even though the negligence is that of a servant, because the duty is that of the master; if the second, it is the negligence of a coservant, and the master is not liable for it. If the workman who placed the beams on the flanges of the elevated railroad had been negligent, and improperly fastened them, and from this canse the accident to the plaintiff’s intestate had occurred, if the case is one of a safe place, the defendant would have been liable. Still I think such a proposition would,hardly be contended for. Would it not be clear that it was the negligence of a fellow workman? It is also clear from the some reasoning that the beam was not an appliance the furnishing of which was the master’s duty. But, though the case is neither one of a safe place nor of a safe appliance, the master had, unquestionably, duties that he owed to his employes. He was bound to supply a sufficient number of competent fellow servants and safe and suitable materials for the work. This duty was not an absolute one, but the master was required to exercise reasonable care for these purposes. There is no allegation in the complaint, and no point seems to have been made on the trial, that the fellow servants were incompetent, or insufficient in number. The master procured the timber from a reputable dealer. As a “lot” or quantity, it was good, but, as generally occurs in the purchase of a quantity of timber, some sticks were found defective, or with curls in them, and hence it was necessary to test the timber, and that such parts of the sticks as had knots or curls should be cut off or rejected. We think that the master discharged its duty when it supplied a sufficient quantity of proper and suitable material; that the choice of material,—the selection of sound beams, the rejection of such beams or parts as were defective,—work necessarily involved in the erection of structures of wood, was a detail of the work, and strictly the duty of the fellow servants. Webber v. Piper, 109 N. Y. 496, 16 S. R. 423; Butler v. Townsend, 126 N. Y. 105, 36 S. R. 508; Cregan v. Marston, 126 N. Y. 568, 38 S. R. 428; Mahoney v. Oil Co., 76 Hun, 589, 58 S. R. 297 ; Smith v. Transportation Co., 89 Hun, 588; 70 S. R. 120. It is here that the vital distinction occurs between the question of a place to work and that of a part of the work itself; a question of liability to employes who. might use the structure when built, and the liability to those engaged in building it. It may well be that, after the construction of the trolley carrier, the defendant would be liable to any lineman who might be injured from its defective condition, whether occasioned by the negligence of the employes who put up the structure or those who selected the materials. Such rule does not apply to the plaintiff. In Murphy v. Railroad Co., 88 N. Y. 146, the plaintiff’s intestate was killed by the explosion of the boiler of a locomotive. The engine had been repaired in the defendant’s shop. The deceased was employed in that shop. When the repairs were finished, the boiler was tested, and during the test the explosion occurred. It was held the defendant was not liable as for furnishing a defective machine. It was there said by Judge Andrews:

“ The case of Fuller v. Jewett, 80 N. Y. 46, is a distinct authority for the proposition that, if this- locomotive had been sent out from the shop, and afterward exploded while in use on defendant’s road, injuring the engineer or other servants of the defendant, the company would have been responsible. -x" * * In this case Murphy was not, we think, a servant, in whose hands the locomotive was placed by the defendant for use, within the principle of Fuller v. Jewett, and like cases. The locomotive was sent to the repair shop in order that it might be made fit for use. The mechanics in the repair shop, including the intestate, were employed for the purpose of repairing defective locomotives. The intestate and his colaboréis in the shop were engaged in the same department of service, worked under the same control; and in the case in question the boilermakers and the other mechanice were employed to effect the same object, viz.: the reparation of the ‘Sacramento.’ It is true that the work was done in successive stages, and different parts of the work were intrusted to different persons. % * -x- rpj^g c]a[rn 0f the plaintiff’s counsel would make, the master responsible to each successive employe, whose work was prior in point of time, although done in effecting the common purpose in which all were engaged. This would, we think, be extending the liability of the master further than is warranted by the adjudged cases.”

All that is thus said as to a case of repair equally applies to a case of original construction. The main reliance of the appellant is on the case of Kranz v. Railroad Co., 123 N. Y. 1, 33 S. R. 1028. In that case the deceased, who was engaged in the defendant’s machine siiop, was ordered to clean pipes laid under ground. A trench had been opened for that purpose. While at work in the trench, the earth caved in, and the deceased was killed. I held at circuit that, as the trench was opened for the purpose of laying bare the pipes, it was a detail of the work, and the negligence was that of a co-servant. This decision was reversed by the court of appeals, who held the question was one of a safe place to work The case of Butler v. Townsend, supra, was subsequent to that of Kranz v. Railroad Co. In the latter case the deceased was killed by the breaking of a defect! ve plank in a staging or platform on which he was working. It was held that it was not a question of a place, but of an appliance, and that, as the master had furnished an adequate number of proper planks, the selection of a defective plank was the negligence of a fellow servant, for which the master was not liable. The same learned judge wrote the opinion in each case. My error in the Kranz Case was, therefore, not in my acceptance of the rule, but in regarding it as applicable to the case then before me. The present case is stronger than that of Butler v. Townsend. There the staging was1 prepared either as an appliance or as ' a place upon which the servants were to do their work. Here the cross beam was provided for no such purpose. The evidence does not show that the deceased was instructed to use it to sustain his weight while he was boring the holes, nor whether he could have used some part of the elevated railroad struction for that purpose. It is often difficult to distinguish the case of a detail of the work from that of a place to work. In the case cited from Hun are to-be found two very instructive opinions on the subject, written by Judge Bradley. It may be conceded that under the authorities the dividing line between the two classes of cases is not straight, but wavering. We thing, however that this case lies well within the border line. 1

The judgment appealed from should be affirmed, with costs.

A1Í concur.


author: PARKER, P. J.

text:
    David Gibbs et al. v. Mary L. Prindle.
    (Supreme Court, Appellate Division, Third Department.
    September 22, 1896.)
    Contempt—Failure to appear in supplementary proceedings.
    Defendant is not guilty of contempt in not obeying an order to appear for examination in supplementary proceedings, where the order was served only 3i hours before the time fixed for the examination, and while defendant was at home alone, three miles from the place of hearing, without any conveyance, and not strong enough to walk that distance.
    Appeal from special term, Saratoga term, Saratoga county.
    Action by David Gibbs and William H. Gibbs against Mary Louisa Prindle. Defendant was adjudged guilty of contempt of court, appeals.
    The order from which this appeal is taken adjudges the defendant guilty of contempt in not obeying an order made bv a justice of this court on the 20th day of August, 1895, in proceedings supplementary to execution, requiring her to appear and answer concerning her property before a referee, in the village of Saratoga Springs, on the 21st day of August, at 2 o’clock in the afternoon. Such order was not served upon the defendant until half past 10 o’clock in the forenoon of the 21st. The defendant did not appear in response to that order. On the 23d of August, said justice-made an order requiring the defendant to show cause before him on August 28th why she should not be punished for contempt in not obeying the order of August 20th. In response to such order, the defendant appeared by attorney, and filed an affidavit, in which she claimed that she was too ill to attend before the referee on August 21st, and that she was not yet able to submit to an examination ; also, that she was alone at home all of the 21st until about 6 o’clock p. m.; and that she did not know that she was required to at once attend before the referee. She also produced the affidavit of her physician as to her inability to attend an examination, and of her son as to the fact of her being alone. Counter-affidavits were produced by the plaintiffs as to defendant’s health, and the justice, without passing upon the Question of her contempt on that day, referred the matter to a referee, to take proof as to» the condition of her health on the 21st, and as to her ability to appear and be examined. A hearing was had before such referee, occupying, as appears from tire bill of expenses rendered, 10 days ^ and he then made his report, in which he finds that the defendant’s health was such that she could have appeared on the 21st, and give answers concerning her property. On notice duly given, such-report was confirmed at a special term of this court on the 22d day of February, 1896, and an order made adjudging the defendant guilty of contempt in not obeying the judge’s order of August 20th, and imposing upon her, as punishment for such contempt, a fine of $50, and also requiring her to pay the costs and expenses of the supplementary proceedings before the referee, viz, $34, and " the costs and expenses of the reference had pursuant to the judge’s order of August 28th, amounting to $240.70; making the total $824.70 which she was required to pay. The order further provides that, in case of her default to pay such amount within 15 days after service of a copy of the order, she be imprisoned in the county jail of Saratoga county until fully paid, or until the further order of the court herein. Such order also provides that she appear and answer concerning her property before the referee originally named in the order of August 20th, at the place therein named, on March 5,1896. From such order this appeal is taken,
    Davison & Delaney, for appellant.
    Ira D. Roods, for respondents.
   PARKER, P. J.

The defendant was in contempt for not obeying the order of August 20th if she refused or without sufficient excue neglected to obey it after it had duly served upon her; otherwise not. Code Civ. Proa § 2457. Conceding that she was “ physically and mentally able to attend and be examined on the 21st of August,”’ as is found by the referee, yet we think the record discloses other facts which furnished to her a sufficient excuse for not so doing. The order, which was served upon her at half past 10 o’clock in the forenoon. required her to appear before the referee, in Saratoga Springs, at 2 o’clock in the afternoon of that day. She was alone in the house when it was served. Her husband and son had both left that morning, at about 7 o’clock, to be absent for the day. The son had with him the horse which the defendant was in the habit of driving, and the only single wagon that was then available for her use. Such-^residence was some three miles from the village where she was required to attend, and it is very clear that, in the condition of health in which she then was, it would be unreasonable to require her to have walked that distance. Such was the situation which confronted her when called upon to appear in Saratoga Springs, at 2 o’clock of that afternoon. She had no means of getting there, except by walking; no one to leave in charge of their house and premises; and no one to send to represent her or to explain her absence. These facts clearly appear from the record before us, and, in our judgment, they form a sufficient excuse for her not appearing as required by the order. Had the order been served the day it was granted, and had the defendant been given an apportuuity to prepare over night for her absence the next day, a different case would be presented. Then means of conveyance could have-been arranged for, and other members of the family could have remained in charge of the house. But when the moving party in such proceedings attempt to compel the attendance of the debtor on as short a notice as was given in this case, lie is very likely to meet with a condition of affairs that will excuse so prompt an attendance, and particularly when the party summoned is a woman in charge of a household, and who may reasonably ask for some assistance and preparation to enable her to attend. Although the statute does not specify how long a notice must be given in these proceedings, yet it is manifest that a reasonable length of time should be given. There is nothing in the character of the proceedings, nor in the object to be accomplished by them, that requires undue haste. We do not intend to hold that in all in-stances a notice of 3£ hours is to be deemed insufficient YVhen the party is resident in the same city or village, and can easily reach the appointed place, a few hours might be a reasonable notice; but we do not think that extraordinary and unreasonable efforts to obey the order upon a few hours’ notice should be required of a debtor. We do not discover any wilful refusal on defendant’s part to obey - the order. Her claim that she was not in a condition of health to be examined, although not sustained by the referee, does not indicate such a refusal. Her attending physician so advised her. He also so testified on the hearing, and the evidence repels the idea that he was acting in collusion with her avoid her examination. Our conclusion, therefore, is that the defendant neither refused, nor did she without sufficient excuse neglect, to obey the order of August 20th. She should not therefore have been adjudged in contempt, and the order in that respect was erroneous.

The conclusion renders it unnecessary to pass upon the several objections which the appellant makes to the bill of costs and expenses charged against her. Such costs have, however, been made up with such an utter disregard of the rules regulating the same that we deem it necessary to say that no inference of an approval should be drawn from an omission to specifically point out their numerous errors. It would be difficult to find in the statute any authority for taxing a large majority of the items which the respondent has incorporated in his so-called “ bill of ” ; and, had we not reached the conclusion that the defendant should not have been held for contempt, we would have found it necessary to strike ont a very large part of the fine which, under the name of “ costs and expenses,” has been imposed upon her.

The objection made by the respondents’ counsel that no appeal lies from such an order is not well taken. This order is clearly one of those from which an appeal is allowed by section 1356 of the Code of Civil Procedure, and the provisions of section 2433 are not applicable to it.

The order of of the special term, therefore, so far as it held the defendant to be guilty of contempt, and imposed a fine upon her, and required her to pay the costs therein specified, is reversed, with costs, with leave to the plaintiffs to apply to the justice who granted the original order of August, 1895, to ñx a time at which, the defendant shalll appear before the referee, pursuant to such «order.

All concur.


text:
    Lyman Rhoades et al. v. Nelson H. Freeman et al.

    (Supreme Court, Appellate Division, Third Department.
    September 22. 1896.)
    1. Vender and Purchaser—Estoppel to Dispute Grantor’s Title.
    A person in possession óf land under a contract to purchase is estopped to dispute his vendor’s title.
    S. Ejectment—Title to Sustain.
    Plaintiff’s in ejectment claimed as heirs of B. and W., to whom one M. 57 years before, had executed a deed purporting to convey the land. There was no evidence that either R. or W. had ever been in possession under the deed. Defendant and the grantor had been in possession the land for many years under a contract of purchasé executed by W., as “ assignee, <&c.” There was evidence that R. and U. 0. owned the land in partnership, or that W. had any authority to sell any interest except his own. Held, that the circumstances under which defendant took possession did not show any title in plaintiffs as heirs of R.
    Appeal from circuit court, St. Lawrence county,
    Ejectment by Lyman Rhoades and others against Nelson Eh Freeman and another. The complaint was dismissed, and plaintiffs appeal. Reversed as to plaintiff Martha E. Weed. Affirmed is to the other plaintiffs.
    A. X. Parker, for appellants.
    Earl Bancroft, for respondents,
   PARKER, P. J.

The action is ejectment. It is averred in the complaint that each of the several plaintiffs is the owner in fee of an undivided interest in the premises in question, the interest of each being specified, and that defendants unlawfully withhold the possession thereof from them. The answer is substantially a general denial of plaintiffs’ ownership, and a claim of title in defendants by adverse user. On the trial the plaintiffs did not prove any title in themselves. They showed a conveyance from Grouverneur Morris to Lyman Rhoades, William II. Weed, and Charles W. Weed of a tract of land which includes the premises in question, dated August 1, 1836. And it appears that three of the plaintiffs are heirs at law of said Rhoads, five of them heirs at law of said William H. Weed, and two of them heirs at law of said Charles W. Weed. But .they did not show that Morris ever-had any title to or possession of such land, or that any of his said-grantees ever took possession of the same. It appeared that the-defendants had been in possession of the lands for many years, and the plaintiffs therefore utterly failed to show any title to the lands, or a right to eject the defendants, unless such title or right can be claimed from the circumstances under which said defendants went, into possession, and have since held the same. Gideon Freeman-went into possession of the land under a written contract for the purchase of the same. In such contract, “Charles W. Yreed,. assignee, etc.,” as parts of the first part, agrees to sell to said Freeman, as painty of the second part, all of certain premises therein described, which description includes the land in question; and such contract is signed by Charles W. Weed, assignee, etc., by C. A. Parker, as his" attorney, and is dated November 1, 1860. A contract for the same premises had previously been executed by Charles W. Weed, assignee, etc., to one Collins Barnes, dated January 1. 1857. Such contract was signed by Charles W. Weed,, assigdee, by E. Dodge, as his attorney. All of Collins Barnes’ interest in such contract subsequently acquired by Gideon Freeman. On February 13, 1873, Gideon Freeman contracted to sell the premises so contracted to him to the defendant Nielson H. Freeman, and subsequently, on December 16, 1873, executed to him a quitclaim deed of the same. When Nelson II. Freeman took his contract from Gideon, he took "the possession which Gideon then had, and has ever since retained the same. Under the contract which Gideon took through Parker as attorney, he was to pay $881.79 for the whole premises so purchased. No more than $213-has been paid upon the contract. Neither was the purchase price of the contract executed to Collins Barnes through Dodge, as attorney, ever paid in full.

The plaintiffs claim that Nielson H. Freeman, as the grantee of Gideon Freeman, is in the position of a vendee of the premises,, having taken the possession thereof under the contract to Gideon, that he is therefore estopped from disputing the title of Gideon’s-vendor, and that the possession which he thus obtained cannot be the basis of a possession adverse to such vendor. This claim, I think, is clearly correct. I understand it to be well settled that one who goes into possession of land under a contract to purchase the same cannot attack or dispute the title of his vendor without-surrendering the possession which lje thus obtained. If he refuses to perform the contract on the ground that the vendor cannot give-a good title, he cannot do so and still hold possession. If he is in default in his payments for that reason, or for any other, and the vendor brings ejectment against him, he may, by answer, setup any equitable defense he may have. He may tender full performance, and ask a judgment that the vendor convey to him, or he may show that he has defaulted, owing to the vendor’s inability to perform, and he may ask that upon his surrender of possession lie here paid the portion of the purchase price which he has already paid, or he may set up any other equity arising to him out of the contract, and the court will try the issue so tendered by the answer. And although the action is, in form,' one of ejectment, it will adjust the equities between them as the facts require; but, being in default, he cannot defend against an ejectment by the vendor on the ground that some one other than the vendor has the title, or that the possession which he took under his contract has ripened into an adverse title in himself. Jackson v. Hotchkiss, 6 Cow. 401; Hotaling v. Hotaling, 47 Barb. 163; Risley v. Rice, 40 Hun, 585, 586; Pierce v. Tuttle, 53 Barb. 167; Greene v. Couse, 127 N. Y. 386, 38 S. R. 926; Pierce v. Hyatt, 28 N. Y. 347.

But the serious question in this case is whether these plaintiffs stand in the position of vendor to the defendants. Have they suco ceeded to the title and interest of the defendants’ vendors ? Did Gideon Freeman acquire the possession and contract to purchase from those whom they now claim to represent? There is no evidence in the case showing that Rhoades, William H. Weed, and Charles W. Weed ever owned the premises as copartners, and there is no evidence showing any authority to Charles W. Weed to contract to sell any one’s interest in the property except his own. Indeed, there is no evidence in the case to show that they, or any of them, had any title whatever to the property, except so far as it may be presumed by way of estoppel against Gideon Freeman by reason of the contracts above referred to. We have no right, therefore, to start with the assumption that the three owned the property, and that, therefore, Charles W. Weed was acting for them as well as for himself. There is not a particle of evidence to show that either of them, except Charles W. Weed, ever made any claim to the property, or ever knew of the existence of the deed from Morris to them. Nor does Charles W. Weed, in the contract, assume to sell any interest belonging to them. He contracts to sell the whole title as if he owned it. He assumes to act for himself only, and Gideon Freeman contracted with him alone. Rhoades died in 1849, and therefore it is clear that, in making the contracts above alluded to, Charles W; Weed was not acting for him, nor for a firm of which he was a member. It is true that Weed is described as “ assignee,” but the plaintiffs’ counsel claims that that is a mere descriptio personae, and I think it must be so treated. Clearly, it is not any evidence that he was claiming to act for Rhoades, Weed & Weed, nor does it indicate that he was acting for any one bnt himself.

I think it very clear that Gideon Freeman contracted with Charles W. Weed as the owner of the premises, and received his possession from him as such owner. He was the vendor, and, as against him, Gideon Freeman, and also the defendant Nelson H. Freeman, are estopped from setting up title in another or in themselves. Whatever idea Nelson may have had of Charles W. Weed’s title when he took the deed from Gideon, the possession which he had thus acquired came from Charles W. Weed, and so long as he holds it he must hold it in subordination to Charles W. Weed’s claim. Tompkins v. Snow, 63 Barb. 525; Dyke v. Spargur, 143 N. Y. 651, 655; 38 N. E. 269. If Charles W. Weed were the plaintiff in this action, I do not see how Nelson Freeman could defend against his claim of ownership, nor maintain any such defense as he has set up in his answer. There may be equities in the case which the court would adjust, had he set them up, but he has not done so. He relies for his defense upon the sole claim that none of the plaintiffs have any title to the premises, and that he himself has the title by adverse user. As against Charles W. WeH, and those succeeding to his rights, he is estopped from maintaining such a defense; but, as against any person other than them, he has the right to rely on his possession, and put the claimants to proof of their title.

The evidence discloses that all of the plaintiffs except two, viz. Martha E. Weed and Charles H. Dougliss, claim to be owners and interested in the premises as heirs at law of either Lyman Rhoades or William W. Weed. In that character they do not stand in the position of vendors to the defendant. They have not shown that the defendant contracted- to purchase from their ancestors, nor that he derived .his possession from them. And, having utterly failed to show any title in their ancestors or in themselves, they have failed to maintain the claim which they make in this action. There is no force in the suggestion that in bringing this action such plaintiffs have ratified the contract made by Charles W. Weed, and therefore stands as vendors to the defendant. It is a sufficient answer that Charles W. Weed never assumed to contract for their ancestors or for them, and hence there is no contract for them to ratify.

The question remains as to what effect the fact that two of the descendants of Charles W. Weed are plaintiffs herein should have in (he disposition of this pase. One of these descendants, Charles H. Dougliss, is a son of a daughter of Weed. His mother is dead, and, as he testified, by will gave all her property to her husband, his father. The father is dead, leaving a will. How he disposed of this property does not appear. Under such circumstances, it is quite clear that Charles H. Dougliss has not shown that lie succeeded to the title, or any part thereof, which Charles W. Weed had in the premises. As to these plaintiffs, therefore, the order dismissing the complaint was clearly right. The other plaintiff, Martha E. Weed, is a daughter of Charles W. Weed, and, inasmuch as we must assume that he died intestate (Mitchell v. Thorne, 134 N. Y. 541; 32 N. E. 10), she inherited a share of his rights in these premises. In the complaint she claims that she owns an undivided one-twelfth of them. The evidence shows that she has inherited at least an undivided oue-twelfth of Charles W. Weed’s interest therein, which interest, as against this defendant, must be deemed to be the whole title. Code Civ. Proc. § 1500, allows a person entitled to the possession of land as a. tenant in common to maintain an action to recover his undivided share therein. Under this section, therefore, it seems that the plaintiff Martha E. Weed made out a prima facie case against these defendants for such undivided share of the premises as she inherited from Charles W. Weed, and that the dismissal of the complaint, as against her, was an error.

The judgment as against Martha E. Weed is therefore reversed, with costs, and as against all the other plaintiffs it is affirmed, with costs.

All concur.


author: WILLARD BARTLETT, J.

text:
    Robert A. Wright v. Matthew R. Gregory.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Libel and slandeb—Malice—Evidence.
    Plaintiff may show that, two weeks after the utterance of the slander, he asked defendant why be kept following him up, and that defendant said that he would have plaintiff discharged from his employment if it cost him $100.
    3. Same—Excessive damages.
    A verdict for $600 for libel in accusing plaintiff of larceny will not he set aside ns excessive where defendant showed a persistent intention to injure plaintiff, though the actual injury suffered by plaintiff was small.
    Appeal from trial term, Kings county.
    Action by Robert A. Wright against Matthew R. Gregory for libel. From a judgment entered on a verdict in favor of plaintiff for $600, and from an order denying a motion for a new trial, defendant appeals.
    Edwin G. Davis, for appellant.
    James G. Cropsey, for respondent.
   WILLARD BARTLETT, J.

The plaintiff was an expressman in the employ of the Long Island Railroad Company. The alleged slander consisted in charging him with theft, because he had removed two packages belonging to the defendant from a seat on a ferryboat on which he was a passenger, going from New York to Long Island City. The reason assigned for taking the packages was that they were apparently abandoned, and it was said that they were merely picked up by the plaintiff, and delivered to a deckhand on the ferryboat for safekeeping. The jury doubtless found this to be the true explanation of the occurrence, inasmuch as they rendered a verdict in favor of the plaintiff, assessing the damages at $600.

The appeal raises only three questions. The first relates to the admission of testimony on the part of the plaintiff as to an interview with the defendant a fortnight after the utterance of the alleged slander which was the subject-matter of the action. The plaintiff was asked, “ What did Mr. Gregory say to you, this day you met him, about two weeks after the occurrence?’’ and he answered as follows:

“I said, ‘Why don’t you leave me alone? Why do you keep following me up all the time? I have a wife and three children. I have to support them.’ He said, ‘Why didn’t you think of them before you stole them packages? ’ I said, 1 Do you still insist on saying I stole them packages? ’ He said, 11 do.’ He'said, ‘ I will follow this thing out, it it cost me a hundred dollars, to see you discharged.’ I begged him to leave me alone; that I was a poor man.”

This evidence was admissible to prove actual malice, and thus enhance the plaintiff’s damages. In Fry v. Bennett, 28 N. "Y 821, 328, the court held that, within the rule allowing proof of the repetition of the slanderous charge to show malice beyond that implied from its original utterance, “any act or language of the defendant tending to prove malice on the part of the defendant is regard to the particular slander or libel which is the subject of the action may be proved.”

The second question is whether the court erred in excluding evidence offered in behalf of the defendant as to what he said to the assistant superintendent of the express department of the Long Island Railroad Company, in Long Island City, in reference to the occurrence on the ferryboat. The trial judge allowed the defenfendant to state all that occurred between him and the assistant superintendent while the plaintiff was present, but refused to allow him to tell what happened at a subsequent interview in the plaintiff’s absence. In this refusal there was no error. The plaintiff had not sought to prove anything about the second conversation, and there was nothing in regard to it which required refutation by the defendant.

The third and last question is in respect to the amount of damages, which the learned counsel for the appellant characterizes as grossly excessive. If a smaller sum had been awarded, we should have been better satisfied with .the verdict, in view of the fact that the actual inconvenience or pecuniary injury suffered by the plaintiff appears to have been small, and the defendant was not wholly without excuse for annoyance at the disappearance of his packages, under the circumstances disclosed by the record. Nevertheless, the proof of a persistent intention on the part of the defendant to procure the plaintiff’s dismissal from employment, two weeks later, accompanied by a repetition of charge of theft, was such evidence of malice that we cannot reduce the amount of the recovery.

The judgment and order must be affirmed, with costs.

All concur.


text:
    Harriet Stoutenburg v. Egbert Humphery.
    (Supreme Court, Appellate Division, Third Department.
    September 29, 1896.)
    Justices of the peace—Unauthorized adjournment.
    Under Code Civ. Proc. §§ 3959, 3960, providing that a justice may grant an adjournment only at the time of the return of the summons or of joining issue, an adjournment after such time, unless by consent of the parties, ia unauthorized, and the justice thereby loses jurisdiction.
    Appeal from Ulster county court.
    Action by Harriet Stoutenburg against Egbert Humphrey. From a judgment of the county court affirming a judgment of the justice of the peace rendered in favor of plaintiff, defendant appeals.
    James Jenkins, for appellant.
    Charles Irwin, for respondent.
   PARKER, P. J.

It appears from the justice's return in this action that issue was joined on the 14th of May, 1895, and that by mutual consent the case was then adjourned to June 20, 1895. On such adjourned day the case was again adjourned by consent of both parties to Jnne 28, 1895, at 9 o’clock a. m. On such last adjourned day the plaintiff appeared at the hour and place of adjournment. The defendant did not appear. At the request of the plaintiff, and upon the statement of his attorney that the counsel of both parties so desired, the case was again “ held open ” until July 15,1895. There was no proof whatever of any agreement between counsel that an adjournment should be had, and the statement so made was of no legal force, and furnished no authority for it

Proudfit v. Henman, 8 Johns. 805. On the 15th of July, at the adjourned hour, the plaintiff again appeared and the defendant did not ■appear. The justice thereupon, in the absence of the defendant proceeded to take proof of the plaintiff’s claim, and upon the proof so taken rendered judgment against the defendant. From such judgment an appeal was taken to the county court, where it was affirmed, and from the judgment of affirmance this appeal is brought.

Section 2959 of the Code provides when a justice may, on his own motion, adjourn a case. Section 2060 provides when he may adjourn it on the application of the plaintiff. Both of these sections confine the adjournment to the time of joining of issue, and (except in the instance provided for in section 2944, where an amendment of the pleading has been had) no other authority is given to the justice to adjourn on the motion of the plaintiff without the consent -of the defendant. It is very clear, therefore, that the adjournment ■from June 28th to July 15th was unauthorized. The case was therefore out of court when the judgment was rendered, and hence such judgment was utterly unauthorized. Bedford v. Snow, 46 Hun, 870 ; Crisp v. Bice, 83 Hun, 465, 64 S. B. 645; Proudfit v„ Henman, 8 Johns, 305.

The conclusion is that the judgment of the county court and of the justice must be reversed, with costs.

All concur.


text:
    Martin W. Watts v. Board of Education et al. of Hempstead.
    ( Supreme Court, Appellate Division, Second, Department.
    October 6, 1896. )
    1. Appeal—Review—Findings op pact.
    Findings of fact may be reviewed where the case orf appeal is certified as containing all the evidence given on the trial, though no exceptions to such findings were taken at the trial.
    3. Contracts—Partial performance—Amount of Recovery.
    Where owner of a building, pursuant to a provision of the contract for its construction, ejects the contractor because of his delay, the contractor is not entitled to recover in proportion to the amount of work done by him, 'but only the difference between the contract price and the amount which it cost the owner to complete the building.
    Appeal from special term, Queens county.

      Action by Martin W. Watts against the board of education of Union free school district No. 20, of the town of Hempstead, and others, to foreclose a mechanic’s lien. From a judgment in favor of plaintiff and defendants Cross, Austin & Ireland Lumber Company, Challes Cornell, and the Brooklyn Metal-Ceiling Company, defendant the board of education appeals.
    Wallace & Smith, for appellant.
    James M. Seaman, for respondent Martin W. Watts.
    Fisher V.Volz and Grout, De Fere & Mayer, for respondents Cross,. Austin & Ireland Lumber Co. et al.
   CULLEN, J.

This action is to enforce a mechanic’s lien, and the appeal of the defendant the board of education raises only questions of fact. It may not necessary that the defendant should file any exceptions to the findings of facts made by the trial court. The certificate that the case contains all the evidence given on the trial is sufficient to enable this division of the court to review those findings. Porter v. Smith, 107 N. Y. 531, 12 St. Rep. 479 Barrett v. Kling (City Ct. Brook.) 16 N. Y, Supp. 92.

The plaintiff contracted with the appealing defendant for the construction of a schoolhouse. The contract provided for five payments. After the fourth payment had been made the appellant ejected the plaintiff from the premises, and itself had the building completed. The special term found that the action of the appellant in taking the work from the plaintiff was justified by the persistent delays in the prosecution of the work. The evidence supports this conclusion. While the plaintiff ordinarily would be obliged to show a substantial performance of his contract, which was an entire one, this was not necessary in the present case, for the appellant did not assume to rescind the contract for the plaintiff's misconduct, but under a provision of the contract to the complete the work on his account. But, while the plaintiff was thus-not precluded from a recovery by the fact that he did not completely perform his contract, he was only entitled to recover whatever balance might be due him after crediting the appellant forthesum paid for the completion of the work. The amount of the last payment was $2,654.43. The appellant proved that it had expended $2,349 33 on labor and materials for the completion of the building. Though the form in which this proof was given was objectionable, the appellant being allowed to put in a written statement of the amounts paid by it, still the accuracy and correctness of the statement was in no wise impeached. The plaintiff offered evidence to show about what part of the work between the two payments he had performed at the time the work was taken from him. The court decided that he had performed about one-third the work, and, on that, substantially held that he was entitled to one-third the amount of the payment. We think this was plainly erroneous. As found by the court, it was through the plaintiff’s fault that the defendant was obliged to assume the completion of the work,—& duty which the plaintiff had contracted to perform. The burden' thus imposed on the appellant it was its duty to perform with reasonable care and regard to the rights of the plaintiff. Still all that-was required of it was good faith, and the exercise of reasonable care. It matters not that the plaintiff might have had the building finished for a less sum than paid by the appellant. If so, lie should have prosecuted his work diligently, and completed his contract. The appellant was entitled to credit for all sums expended by it, as long as such expenditures were made in good faith, and with reasonable care. The evidence does not impeach the appellant’s conduct in these respects. Therefore there should not have-been judgment against the plaintiff for any greater sum than the difference between the amount of the payment and the amount actually paid out.

The judgment appealed from should be reversed, and anew trial granted; costs to abide the event.

All concur.


author: WILLARD BARRETT, J.

text:
    Jane Wills v. City of Brooklyn.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Municipal Corpoations—Obstruction on Street—Liability eor Injuries.
    A show case maintained on a sidewalk without permission from the municipal authorities is a nuisance, and the city is liable for injuries-caused by its fall, though it had been securely fastened to a post until the day before the accident, when a truck collided with it and broke it loose.
    Appeal from trial term, Kings county.
    Action by Jane Wells against the city of Brooklyn for personal injuries. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial (38 N> Y. Supp. 309), plaintiff appeals.
    James D. Bell, for appellant.
    William G. Cooke, for respondent
   WILLARD BARRETT, J.

The plaintiff, a married woman,, then 70 years of age, was severely and permanently injured on the 13th day of December, 1894, while lawfully upon Grand street, in the city of Brooklyn, by the fall of of a large show case of wood and glass which had stood near the curb line of the sidewalk in front of the premises No. 691 Grand street for several years prior to the time of-the accident. There was an awning post near this show case, to which'it had been fastened by means of an iron brace. On December 11. 1894, a truck collided with the showcase, knocking it over and tearing off the brace. The show case was put back in position, but without fastening it the post by the brace or otherwise. The next day the case was blown down by the wind, and the plaintiff was hurt. The show case had been maintained in the same place upon Grand street for six or seven years before the accident occurred. No permission for the maintenance of the structure-had been given by the municipal authorities. Upon the trial the court held that the city was not liable unless its officials, in the exercise of ordinary prudence, ought reasonably to have anticipated that such an incumbrance was likely to be loosened by contact with vehicles, and thus become dangerous. The plaintiff excepted to that portion of the charge in which the jury were so instructed. There was a verdict for the defendant, and the plaintiff has appealed.

It is clear that the show case, even when fastened by the iron brace to the awning post, was an unlawful obstruction in the street, which it was the duty of the defendant to remove. It was permanent in character, and continuously maintained, and, being wholly unauthorized, it constituted a public nuisance. “Any permanent •or habitual obstruction in a -public street or highway, ” said Denio, C. J., in Davis v. Mayor, etc., 14 N. Y. 506, 524, “is an indictable nuisance, although there be room enough left for carriages to pass; and is not less so, though the thing which constitutes the obstruction is not fixed to the ground, but it capable of being, and actually is, removed from place to place in the street. ” The city did not create the nuisance, but it failed to take any steps to abate it, although the duty to remove the obstruction arose, in the absence of any proof of actual notice to the authorities, as soon as notice of the existence could fairly be presumed from the lapse of time. Here the obstruction had existed, as already stated, for upwards of six years. But it is said that the show case was not dangerous so long as it remained fastened, and that unless the municipal authorities ought to have foreseen, as reasonable men, that there was a probability of its becoming unfastened as it did, there could be no liability on the part of the city. The learned trial judge adopted this view, and tried the ease accordingly; holding that, inasmuch as the accident could not have happened if the brace which held the show case had not been broken bv the collision with the truck, the accident could not be attributable to the neglect of the city, unless the city officials, in the exercise of reasonable prudence, ought to have deemed the presence of the securely fastened show -case dangerous, because likely to result in such a mishap as that which actually occurred. Time enough had not elapsed between the collision which loosened the show case and the injury to the plaintiff to impute notice to the municipal authorities that it was •no longer secured. It is plain, therefore, if the city is liable at all, that its liability arises out of the fact that it permitted the existence of an obstruction in the highway, amounting to a nuisance, which by reason of the act of another person lawfully using the highway, was rendered dangerous to the plaintiff, and inflicted "upon her the injuries of which she complained. The contention in behalf of the defendant is that an essential element of such liability is-that the obstruction shall be actually dangerous in the first instances, or manifestly likely thereafter to become so, in the judgment of prudent men, and that, if originally it be neither, the fact that it subsequently develops into a menace to public travel does not render the municipality chargeable with negligence for the resulting injury. I think this is too limited a view of the rule of law applicable to such a case, both upon reason and authority. When a municipality tolerates for years the continuance of an unlawful obstruction in a public street, which it is in duty bound t© remove therefrom, its action is distinctly wrongful. It must bear the natural consequences of that wrongful action. Any unlawful obstruction in a public highway may prove dangerous to travelers, either from the manner in which it is originally erected, or by reason of accidental or other interference with it by strangers to its erection. Notice to the municipality, therefore, of its presence, is notice that the safety of public travel is endangered, or liable to be endangered. If, under such circumstances, the obstruction is allowed to remain, the municipality takes the risk. If injury ■ensues, the presence of the obstruction is to be deemed the proximate cause thereof, for the injury could not happened if the municipal authorities had performed their duty. In that event, in the case at bar, the show case would not have been on Grand street at all, and could not have been loosened by the collision with the truck, or fallen upon the plaintiff.

In Cohen v. Mayor, etc., 113 N. Y. 532, 23 S. It. 509, the plaintiff’s decedent was killed on Attorney street, in New York City, by the fall of the thills of a grocery wagon which was stored in the street under a permit issued by the city government. The thills had been tied up perpendicularly with a string, which broke in consequence of a collision with an ice wagon which was being driven along the street just as the injured man was passing. The trial court directed a verdict for the defendant, on the ground that the cause of the injury was the defective manner in which the thills were tied up, of which there was no evidence that the city had notice. In reversing the judgment the court of appeals, speaking by Peckham, J., said:

“But, assuming that the city had no right to issue the permit, it is urged that such license did not authorize the negligence which ■saused Cohen’s death, and that the act of the defendant was too remote to be regarded as the proximate canse of the damage herein. We do not think so. The act of the defendant was wrongful. It consisted in setting up an obstruction in the public highway, and the accident happened because of the presence of the obstruction at the point in question. It was there by the act of the defendant, and, being there, it has caused the jnjury. To be sure, it may be said that if the thills had not been negligently tied they would not have fallen. But that was simply the way in which by reason of the presence of the obstruction, the accident occurred. There is always reasonable ground for apprehending accidents from obstructions in a public highway, and any person who wrongfully places them there, or aids in so doing, must be held responsible. for such accidents as occur by reason of their presence. The obstruction in such case must be regarded, within the meaning of the law on the subject, as the proximate cause of the damage. ”

I cannot see any difference in principal between the Cohen Case and this case. In Ring v. City of Cohoes, 77 N. Y. 83, the obstruction of which the plaintiff complained was a heap of ashes, which narrowed the roadway about one-third. This was certainly not any more essentially dangerous than was the show case here, or more likely to become so, yet the court held that if the city carelessly permitted the heap to remain there, obstructing to some extent the roadway, it would be responsible for any accidents caused thereby. See, also, Rehberg v. Mayor, etc., 91 N. Y. 137,144, 145. While, undoubtedly, there are cases which have imposed a severe and stringent liability upon municipal corporations in respect to-the care of the streets under their charge,—notably, some of those relating to the accumulation of snow and ice,—I do not think any just complaint can be made of a rule which simply enforces upon such corporations the duty of preventing the artificial erection and maintenance of illegal obstructions in the highway, and makes them liable for personal injuries which would not be suffered if those obstructions were not negligently permitted to occupy the street. Such a rule is essential to the adequate protection of the public, and calls upon the officers of the municipality for the exercise of nothing more than reasonable diligence on their part to keep the streets safe.

In my opinion the judgment should be reversed, and there should be a new trial.

All concur.