text:
    Henry W. Steinheauser, Assignee, Resp’t, v. John Mason, App’lt.
   No papers.

Motion to revive and continue granted, and cause set down for argument upon the first Tuesday of the next term of this court.

See 46 St. Rep., 393.


source: Caselaw Access Project

license: Public Domain

text:
    Wm. H. Chapman, Resp’t, v. The Town of Taylor, App’lt. Charles H. Stanton, Resp’t, v. The Town of Taylor, App’lt.
   No papers.

Motion for re-argument denied, ten dollars costs.

See 49 St. Rep., 848.


text:
    Geo. T. Crombie et al., Resp’ts, v. Gertrude B. Waldo, App’lt.
   No papers.

Moiion for re-argument denied, ten dollars costs.

See 50 St. Rep., 180.


text:
    Filed March 24, 1893.
    John Seton, Resp’t, v. Heman Clark, App’lt.

      J. Stewart Ross, for resp’t; E. T. Lovatt, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 561.


text:
    Francis B. Carpenter, App’lt, v. Sheridan Shook et al., Resp’ts.

      John T. Walker, for app’lt; David Gerber, for resp’ts.
   Judgment affirmed, with costs. All concur.

Affirming 43 St. Rep., 226.


text:
    Anthony McGarry, Resp’t, v. The N. Y. & Harlem R. R. Co., App’lt.

      John T. McDonough, for resp’t; M. H. Hirschberg, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 45 St. Rep., 564.


text:
    Louis Eickwort, Resp’t, v. James G. Powers, App’lt.

      Jas. C. De La Mare, for resp’t; John A. Mapes, for app’lt.
   Appeal dismissed, without costs. All concur.

See 43 St. Rep., 328.


text:
    Walter M. Wheeler et al., Resp’ts, v. Elizabeth A. Britton, App’lt.

      James H. Ryan, for resp’ts; Walter R. Beach, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 45 St. Rep., 39.


text:
    Frances E. Parsons, Resp’t, v. Edward Hughes, App’lt.

      Fred. Wm. Sherman, for resp’t; Maurice Dillon, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 911.


text:
    John J. Molloy, App’lt, v. The Long Island R. R. Co., Resp’t,

      Peter A. Hendrick, for app’lt, E. B. Hinsdale, for resp’t.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 36 St. Rep., 626.


text:
    Somerville P. Tuck, Resp’t, v. Jerome F. Manning. Henry Amy, App’lt.

      Grosvenor S. Hubbard, for resp’t; Theodore F. H. Meyer, for app'lt.
   Order affirmed on opinion below, with costs. All concur.

Affirming 44 St. Rep , 391.


text:
    In the Matter of the Assignment of Charles Magnus, etc.

      Franklin Bien, for app’lt; Abram Kling, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 50 St. Rep., 599.


text:
    The People ex rel. The U. S. Trust Co. of N. Y., Committee, App’lt, v. Edward P. Barker et al., Com’rs, Resp’ts.

      Edward W. Sheldon, for app’lt; David J. Dean, for resp’ts.
   Order affirmed, with costs. All concur.

Affirming 50 St. Rep., 741.


text:
    Catharine A. Pope, Resp’t, v. Samuel A. Briggs, Assignee, et al., App’lts.

      Benjamin F. Edsall, for resp’t; Thomas Darlington, for app’lts.
   Appeal dismissed, with costs. All concur.

See 50 St. Rep., 743.


text:
    Filed April 11, 1893.
    The Pottier & Stymus M’f’g Co., Resp’t, v. Auguste Noel, App’lt.

      Elbert Crandall, for resp’t; Abram Kling, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 44 St. Rep., 201.


text:
    Chas. H. Loeber, App'lt, v. Isaiah L. Roberts, Resp’t.

      Wm. C. Beecher, for app’lt; Elbert Crandall, for resp’t.
   Judgment affirmed, with costs. All concur.

Affirming 42 St. Rep., 687.


text:
    Mary C. Higgins, Resp’t, v. Geo. G. Hallock, App’lt.

      Chas. H. Daniels, for resp’t; Marcus T. Hun, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 38 St. Rep., 782.


text:
    The Millstone Granite Co., Resp’t, v. James F. Dolan, App’lt.

      Frank Bergen, for resp’t; L. E. Pendergast, for app’lt.
   Judgment affirmed, with costs. All concur, except Gray, J., not voting.

Affirming 46 St. Rep., 531.


text:
    Geo. W. Wells, Resp’t, v. Rufus A. Sibley et al., App’lts.

      P. Chamberlain. Jr., for resp’t; Albert H. Harris, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 940.


text:
    John Langford, Resp’t, v. Wm. Broadhead et al., App’lts.

      A. Hazeltine, for resp’t; C. R. Lockwood, for app’lts.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 44 St. Rep., 19.


text:
    Chas. H. Palmer, App’lt, v. Augustus C. Bowen, Impl’d, Resp’t.

      David Hays, for app’lt; Thomas Raines, for resp’t.
   Judgment affirmed and judgment absolute ordered for defendant with costs, on opinion of general term. All concur, except Finch and Gray, JJ., absent.

Affirming 44 St. Rep., 802


text:
    Peter Stastney, Resp’t, v. The Second Ave. R. R. Co., App’lt.

      Albert S. Warner, for resp’t; Jason Hinman, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 46 St. Rep., 537.


text:
    David J. Boehm, Resp’t, v. Geo. P. Lies et al., App’lts.

      John Brooks Leavitt, for resp’t; Morris S. Wise, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 26.


text:
    In the Matter of the Application of Emma J. Taggard to Compel Henry N. Hewitt, as Surviving Exr., to Account.

      Richard L. Hand, for app’lt; F. A. Rowe, for resp’t.
   Order affirmed, with costs, on opinion of general term. All concur, except Finch and Gray, JJ., absent.

Affirming 41 St. Rep., 796.


text:
    Marcus G. Cunningham, Resp’t, v. The Massena Springs & Fort Covington R. R. Co., App’lt.

      Matt C. Ransom, for resp’t; Wm. P. Cantwell, for app’lt.
   Judgment affirmed, with costs, on opinion of general term. All concur, except Finch and Gray, JJ., absent.

Affirming 44 St. Rep., 723.


text:
    Filed April 18, 1893.
    Sarah E. Mellen, App’lt, v. Wm. C. Banning, Ex’r, Resp’t.
   Ho papers.

Motion to submit brief, etc., granted, without costs.

See 45 St. Rep., 936.


text:
    John Sebastian Smith, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.
   No papers.

Motion for reargument denied, with costs.

See 50 St. Rep., 933.


text:
    Hiram A. Douglas, Resp’t, v. The Phoenix Ins. Co., App’lt.

      Wm. P. Cantwell, for motion; G. A. Seixas, opposed.
   Motion to dismiss denied, with costs.

See 44 St. Rep., 237.


text:
    Mary T. Collier, Resp’t, v. Emeline Miller et al., Appl’ts.

      Jacob F. Miller, for motion; Levi F. Longley and G. P. Collier, opposed.
   Motion for reargument denied, without costs.

See 50 St. Rep., 784.


text:
    Patrick Cassidy et al., Resp’ts, v. Joseph McFarland et al., Appl’ts.

      Geo. A. Stearns, for motion; W. S. Cowles, opposed.
   Motion for reargument granted.

See 51 St. Rep. 930.


text:
    Filed April 25, 1893.
    The People ex rel. The Eickemeyer Field Co. Resp’ts, v. Frank Rice, Sec’y of State, App’lt.

      J. Hampden Dougherty, for resp’ts; John W. Hogan, for appl’t.
   Order affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 49 St. Rep., 46.


text:
    Daniel Crouse et al., Appl’ts, v. Walter Whittlesey, Resp’t.

      G. W. Adams, for appl’ts: C. D. Adams, for resp’t.
   Order affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 49 St. Rep., 549.


text:
    In the Matter of the Assignment of Abner Mellen, etc. Dennis O’Donoghue, Sub-Assignee, Appl’t, v. Henry Daily, Att’y in Person, Resp’t.

      E. B. Hinsdale, for app’lt; Henry Daily, Jr., for resp’t.
   Order affirmed, with costs. All concur, except Finch and Gray, JJ., absent.


text:
    Mary C. Steinheauser, Sub-Assignee, Resp’t, v. John Mason, App’lt.

      Abram Kling, for resp’t; Franklin Bien, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ.,

Affirming 46 St. Rep., 393.


text:
    Clarence M. Smith, Resp’t, v. The Manhattan R'way Co., App’lt.

      Jacob F. Miller and Everett J. Esselstyn, for resp’t; Brainard Tolles, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 865.


text:
    Filed May 2, 1893.
    Winslow Robinson et al., Resp’ts, v. Wm. H. Gedney et al., App’lts.

      Wm. M. Mullen, for resp’ts; James B. Dill, for app’lts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 43 St. Rep., 369.


text:
    Isabella H. Mitchell, Resp’t, v. The Village of White Plains, App’lt.

      M. M. Silliman, for resp’t; H. T. Dykman, for app’lt.
   Judgment affirmed on opinion below, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 41 St. Rep., 787.


text:
    Walter F. Pyne, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

      Horace Russell, for resp’t; Henry L. Stimson, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 662.


text:
    Wm. J. Doran, Resp’t, v. The Brooklyn & N. Y. Ferry Co., App’lt.

      Wm. J. Driscoll, for resp’t; Jas. & Thos. H. Troy, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 310.


text:
    Wm. A. C. Matthie, Resp’t, v. George A. Dowden, App’lt.

      Wm. B. Ellison, for resp’t; James A. Dennison, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 942.


text:
    The Board of Sup’rs of Erie Co., Resp’t, v. The City of Buffalo, App’lt.

      John Cunneen, for resp’t; George M. Browne, for app’lt.
   Judgment affirmed, with costs, on opinion of Dwight J., below. All concur, except Finch and Gray, JJ., absent.

Affirming 45 St. Rep., 365.


text:
    Edward J. King, Jr., et al., Resp’ts, v. Albert Jacobson et al., App’lts.

      Alex. Blumenstiel, for resp’ts; Henry A. Peckham, for app’lts.
   Judgment affirmed on opinion of Van Brunt, J., below, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 44 St. Rep , 451.


text:
    Athenais von Hoffman, Resp’t, v. George H. Kendall, App’lt.
    Geo. J. Greenfield, for resp’t; Chas. A. B. Pratt, for app’lt.
   Dismissed on argument, with costs.

See 44 St. Rep., 484.


text:
    Filed May 5, 1893.
    John D. Cutter et al., App’lts, v Alex. W. Hume et al., Resp’ts.

      Alex. Thain. for app’lts; James L. Bishop, for resp’ts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 43 St. Rep., 242.


text:
    Jos. W. Fiske, App’lt, v. The Mayor, etc., of New York et al., Resp’ts. Andrew L. Smith et al., App’lts.

      John Brooks Leavitt and Albert H. Atterbury, for app’lts; Dudley R. Horton, for resp’ts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 44 St. Rep., 825.


text:
    Christian A. Schmidt, Resp’t, v. The Garfield Nat. Bank, App’lt.

      S. Hanford, for resp’t; Esek Cowen and John J. Adams, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 639.


text:
    Bridget Larkin, Resp’t, v. The N. Y. & Northern Railway Co., App’lt.

      Anson B. Stewart, for resp’t; Sherman Evarts, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 46 St. Rep., 658.


text:
    Francis M. Jencks, App’lt, v. Edward Kearney et al., Resp’ts.

      John H. V. Arnold, for app’lt; Chas. F. MacLean and Chas H. Bailey, for resp’ts.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 42 St. Rep., 826.


text:
    Faser C. Fuller, Resp’t, v. Edward Kemp, Jr., App’lt.
   No papers.

Judgment affirmed, with costs, on opinion below. All concur, except Finch and Gray, JJ., absent.

Affirming 43 St. Rep., 970.


text:
    The People, Resp’ts, v. Henry J. Coggeshall, App’lt.

      Smith M. Lindsley, for resp’ts; A. M. Mills, for app’lt.
   Order affirmed on case of People v. Wood, 121 N. Y., 522; 31 St. Rep., 860, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 49 St. Rep., 918.


text:
    The People ex rel. Charles F. Allen, Resp’t, v. Thomas E. Murray, Justice, App’lt.

      Wm. H. Secor, for resp’t; Wm. Allan, for app’lt.
   Order affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 50 St. Rep., 535.


text:
    The Manufacturers & Traders’ Bank, App’lt, v. Abram Folk, Impl’d, Resp’t.

      John G. Milburn, for app’lt; L. A. Gould, for resp’t.
   Order affirmed on opinion below, with costs. All concur, except Earl, J., not voting; Finch and Gray, JJ., absent.

Affirming 50 St. Rep., 802.


text:
    The National Bank of Commerce in New York, Resp’t, v. The Whiteman Pulp & Paper Co., App’lt.

      Frederic A. Ward, for resp’t; Fred. W. Noyes, for app’lt.
   Order affirmed, with costs. All concur, except Finch and Gray, JJ., absent.

Affirming 50 St. Rep., 493.


text:
    John P. Adams, Resp’t, v. Henry A. Morgan, as Pres’t of N. Y. Times, App’lt.

      Frederic A. Ward, for resp’t; Henry Yonge, for app’lt.
   Appeal dismissed, with costs. All concur, except Finch and Gray, JJ., absent.

See 51 St. Rep., 187.


text:
    Anna S. Carpenter, App’lt, v. Hiland S. Carpenter, Resp’t.

      Henry A. King, for app’lt; R. A. Parmenter, for resp’t.
   Appeal dismissed, with costs. All concur, except Finch and Gray, JJ., absent.

Sec 51 St. Rep., 940.


text:
    Jean Albert Tauziede et al., v. Francois Henry Jumel et al.

   No papers.

Motion to substitute and revive granted, without costs.

See 41 St. Rep., 952.


text:
    William H. Scott, v. The Manhattan R’way Co.
   No papers.

Motion to correct case denied, ten dollars costs.

See 50 St. Rep., 214.


text:
    Terence McCracken, Resp’t, v. William C. Flanagan et al., App’lts.
   No papers.

Motion to dismiss denied, ten dollars costs.

See 51 St. Rep., 545.


text:
    Supreme Court — General Term — First Department.
    Filed February 17, 1893.
    Ernest J. Lecocq, App’lt, v. Auguste Pottier, Ex’r, et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Helena Metzger, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts. Hannah E. Boardman, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Edmund J. Curry, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Edmund J. Curry, Resp’t, v. The New York Elevated Railway Co. et al., App’lts.
   Motions for reargument denied, with ten dollars costs and printing disbursements in one case.


text:
    Andrew W. Gerlach, Resp’t, v. Charles Ammann, App’lt.
   Judgment affirmed, with costs.


text:
    Emanuel Popper, App’lt, v. Henry Wallach et al., Resp’ts.
   Judgment affirmed, with costs and disbursements.


text:
    The National Park Bank, Resp’t, v. Moses Levy, Impl’d, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Application of James Steele for Examination of William G. Smith.
   Order affirmed, with costs and disbursements.


text:
    Jacob Schwartz et al., Resp’ts, v. John Wood, App’lt.
   Motion .denied, with ten dollars costs.


author: Per Curiam.

text:
    The United States Vinegar Co., Resp’t, v. Henry Spamer, App’lt.
   Per Curiam.

The question in this.case, as to the liability of the defendant, is substantially the same as that discussed in the case of this plaintiff against Schlegel, 51 St. Rep., 453, and decided at this term of the court. The exceptions are, therefore, overruled, and judgment for the plaintiff ordered on the verdict, with costs.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


text:
    Filed March 17, 1893.
    The Phenix Bridge Co., App’lt, v. The Keystone Bridge Co., Resp’t.
   Judgment affirmed, with costs, on opinion of Mr. Justice Beach below.


text:
    Cornelius L. Cooke, Resp’t. v. The Phoenix Bridge Co., App’lt.
   Judgment affirmed, with costs.


text:
    Frederick A. Haight, App’lt, v. Wilson S. Dickerman, Prest., Resp’t.
   Judgment affirmed, with costs, on opinion written on appeal from order Vacating injunction.


text:
    Rufus O. Parker, Resp’t, v. The Mayor, etc., of New York, App’lt.
   Order affirmed.


text:
    Julius H. Caryl v. F. X. Stafford et al.

   Motion dismissed.


text:
    Philo T. Ruggles v. F. X. Stafford et al.

   Motion dismissed.


text:
    Wm. E. Daniels v. F. X. Stafford et al.

   Motion dismissed.


text:
    Charles O. Waite, Resp’t, v. The F. J. Kaldenberg Co., App’lt.
   The proper papers not being before the court, case stricken from calendar, with leave to put upon new calendar, and to submit when proper papers, printed.


text:
    John P. Paulson v. Benjamin Gates et al.

   Motion granted, with §10 costs.


text:
    Same v. Same.
   Motion granted, with $10 costs.


text:
    The DueberWatch Case Mfg. Co. Resp’t, v. Joseph Fahys et al., App’lts.
   Order denying motion for further bill of particulars affirmed, with §10 costs and disbursements.


text:
    General Term — Second Department.
    Filed February 13, 1893.
    The E. G. Blakeslee Mfg. Co. v. The E. G. Blakeslee’s Sons Iron Works.
   Judgment affirmed for non-submission of papers according to stipulation. Dykman, J., not sitting.


text:
    The National Bank of Orange County, v. Ida D. Van Steenburgh.
   Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs according to stipulation.


author: Pratt, J.

text:
    Eva W. Simmons, Resp’t, v. The Central New England & Western Railroad Co., App’lt.
    Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial.

      Milton A. Fowler, for app’lt; A. M. & G. Card, for resp’t.
   Pratt, J.

This case only involved qucst'ons of fact in its trial, and we think the evidence is sufficient to sustain the verdict.

The jury found the defendant was guilty of negligence in running its train on the occasion of the accident, and also found as matter of fact that the plaintiff was not guilty of contributory negligence.

No exceptions are taken to the ruling of the trial judge as to questions of evidence, and no exceptions to the charge.

It was a proper case to be submitted to a jury and the verdict must be upheld.

Judgment and order affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Chauncey H. Skidmore, Resp't, v. The Anchor Brewing Co., App’lt.
    Appeal from judgment in favor of plaintiff, entered on the report of a, referee.

      Wm. G. Valentine, for app’lt; Augustus M. Price., for resp’t.
   Dykman, J.

This is an appeal from a judgmeht entered upon the report of a referee.

The action was for the recovery of damages for the unlawful discharge of the plaintiff from the service of the defendant.

It was the claim of the plaintiff that he was employed by the defendant as the captain of a steamboat for one year from the 15th day of April, 1889, at a salary of $900 á year, payable monthly, besides his board, which he claimed was worth three dollars and a half a week.

That he entered upon the service in pursuance of the contract, and was discharged by the defendant without cause to his damage $881.50.

The answer of the defendant controverted the complaint and set up that the plaintiff was hired by the month and not by the year, and was discharged for incompetency.

The cause was tried before a referee to hear and determine, and upon the trial each party introduced testimony tending to support the allegations in the pleadings.

The referee found the facts in accordance with the testimony of the plaintiff and made a report in his favor.

Our examination of the case leads us to the same conclusion reached by the referee and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Max Bertuch, Resp’t, v. Michael Sweeny, App’lt.
    Appeal from order denying motion to vacate an order to arrest defendant, Michael Sweeny.

      John McGinn (Ed. W. S. Johnston, of counsel), for app’lt; Chas. E. Burke, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion to vacate an order of arrest.

Although the moving affidavits contain strong statements, yet we think the judge at special term was justified in finding the facts in favor of the plaintiff, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    In the Matter of the Will of Augustus Nelson, Deceased.
    Appeal from decree of surrogate admitting will to probate.

      E. C. Neil, for app’lts; Frost & Manser, for resp’ts.
   Dykman, J.

This is an appeal from a decree of the surrogaté of Westchester county, admitting to probate the last will and testament of Augustus Nelson, deceased.

The contestants filed the usual objections to the will, but they were not only unsubstantiated, but they were disproven by the proponent of the will.

The appeal is destitute of merit and the decree should be affirmed, with costs of the appeal to be paid by the appellants.

Barnard, P. J., and Pratt, J., concur.


text:
    Herman B. Ogden, Resp’t, v. The Kings County Elevated Railway Company, App’lt.
    Appeal from judgment in favor of plaintiff, entered on decision of the court.

      William A. Poste and Welton C. Percy, for app’lt; Theodore B. Gates, for resp’t.
   Pratt, J.

We think this case was properly tried by the court, without a jury; that it was fairly tried and most sensibly disposed of by the learned trial judge. We, therefore, affirm the judgment, with costs.

Barnand, P. J., and Dykman, J., concur.


text:
    General Term — Third Department.
    Filed February 15, 1893.
    In the Matter of the Probate of Will of William H. Green, Deceased.
   Decree of surrogate affirmed on the opinion of surrogate, with costs against appellants.

Ordered that the costs be paid out of estate and not by appellants.

Affirming 48 St. Rep., 450.


text:
    William M. Frommel, App’lt, v. William McKinstry, Resp’t.
   Order affirmed, with costs to be paid personally by the appellant.


author: Herrick, J.

text:
    James Walter Crystal, an Infant, by John W. Kennedy, his Guardian ad litem, App’lt, v. The Troy & Boston Railroad Company, Resp’t.
    Appeal from a judgment of nonsuit.

      E. L. Cole (R. A. Parmenter, of counsel), for app’lt; T. F. Hamilton, for resp’t.
   Herrick, J.

This case has been twice to the court of appeals, 105 N. Y., 164; 6 St. Rep., 833; 134 N. Y., 519; 86 St. Rep., 699, and is now for the third time before this court.

While some additional evidence was given on the part of the plaintiff upon the last trial, still I do not see that the facts are substantially different from what they were when the case was last before the court of appeals, leaving no substantial difference in the facts that will relieve the case from the objections made to a recovery in the opinion of Mr. Justice Parker in the court of appeals. There is no occasion for an opinion.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    The People ex rel. The Edison Electric Light Company, App'lt, v. Frank Campbell, Comptroller, Resp’t.

      Certiorari to review determination of comptroller declining to set aside taxes assessed against relator.

      Eaton & Lewis (W. Laird Goldsborough, of counsel), for app’lt; Simon W. Rosendale, attorney general, for resp’t.
   Herrick, J.

The conclusion reached by this court in the case of the People ex rel Edison Electric Light Company v. Wemple, 63 Hun, 444; 44 St. Rep., 703, I think disposes of this case.

The determination of the comptroller should be affirmed.

Let an order be entered accordingly, with costs and printing disbursements.

Mayham, P. J., and Putnam, J., concur.


text:
    Caroline Greenberg, Resp’t, v. The City of Kingston, App’lt.

      G. D. B. Hasbrouck, for app’lt; Charles Irwin, for resp’t.
   Herrick, J.

I can see no reason for an opinion.

The question of contributory negligence was for the jury.

The city by working the street in question had accepted it, and had no business to have such an excavation in it so near the traveled way.

Judgment should be afffijjned, with costs and disbursements.

Mayham, P. J., and Putnam, J., concur.


text:
    Filed February 16, 1893.
    In the Matter of the Will of Samuel Weston.
   Motion granted by adding to the order “with costs to abide the event,” without costs.


text:
    The Board of Education of Waterford v. Alexander S. Cunningham.
   Motion denied, with ten dollars costs.


text:
    John M. Moore v. Laura M. Nye.
   Motion granted, without costs.


text:
    Louis Bourdon, App’lt, v. The New York & Lake Champlain Transportation Co., Resp’t.
   Order affirmed, with costs and printing disbursements.


text:
    Edward Palmer, Resp’t, v. The New York & Lake Champlain Transportation Co., and The Lake Champlain Transportation Co., App’lts.
   Order affirmed, with costs and printing disbursements. Putnam, J., not acting.


text:
    Filed March 2, 1893.
    Charles E. Bullard and Charles O. Howe, App’lts, v. Mary C. Harris et al., Resp’ts.
   Motion for reargument granted, without costs.


text:
    Nannie L. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt,
   Motion for reargument denied , with ten dollars costs.


text:
    Anna S. Carpenter, App’lt, v. Hiland Carpenter, Resp’t.
   Order affirmed, with ten dollars costs and printing and other disbursements.


text:
    The Donohue, Tierney & Isengert Brewing Co., Resp’t, v. The Fitchburg Railroad Co., App’lt.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      T. F. Hamilton, for app'lt; Smith & Parmenter (R. A. Parmenter, of counsel), for resp’t.
   Herrick, J.

This case presents the same facts as the case of Conrad Hoffman against the same defendant, 51 St. Rep., 345, the plaintiff in this action being the employer of the plaintiff in that, both actions arise out of the same accident, and the conclusions arrived at in the Hoffman case require that the judgment herein should be reversed and a new trial ordered, costs to abide the event.

Let an order be entered accordingly.


text:
    General Term — Fourth Department.
    Filed February 23, 1893.
    Jerome D. Holmes, App’lt, v. William E. Roper et al., Adm’rs, Resp’ts.
   Judgment affirmed, with costs.


text:
    Alexander Grant et al., Resp’ts, v. The Syracuse Door & Blind Co. et al., App’lts.
   Judgment modified by striking therefrom the provision directing Kellogg to pay $385.64 damages, and authorizing execution therefor; and in lieu thereof inserting a provision directing the appointment of a receiver for the corporation, and providing that after his appointment and qualification defendant Kellogg shall pay over to him $3,40U.80, being the amount received by Kellogg on his judgment and execution, to be distributed by the receiver among the creditors of the corporation according to their respective rights and interests. The provision in the injunction allowing plajntiffs costs as awarded to remain. And the judgment as so modified affirmed, with costs of this appeal to the defendant Kellogg.


text:
    Horace Parks, Surviving Administrator, App’lt, v. Clarence Andrews, Individually and Adm’r of Josiah Andrews, deceased, et al., Resp’ts.
   Judgment and order revei sed and a new trial ordered, with costs to abide the event. Held, that the exceptions taken to the admission of the evidence of Grant Andrews and May Potter as to the declarations of their father present error. See Holcomb v. Holcomb, 95 N. Y., 316; Matter of E saman, 113 id., 62; 22 St. Rep., 136; Matter of the Will of Dunham, 121 N. Y., 575; 31 St. Rep., 858. 2. After excluding such evidence the verdict and decision are against the weight of evidence.


text:
    George H. Lawrence et al., Resp’ts, v. John W. Lischer, Appl’t.
   Judgment affirmed, with costs.


text:
    Elizabeth Connor, Appl’t, v. The Delaware, Lackawanna & Western Railroad Company, Resp’t.
   Motion denied, without costs.


text:
    In the Matter of the Application of The Second National Bank of Cooperstown, pursuant to the request of the comptroller of the state of New York for the transfer of funds or moneys held in trust by the treasurer of Otsego county.
   Application granted; order to be certified and countersigned by the presiding justice. Papers filed with the clerk of Broome county, to be certified by him and transmitted to and filed with the clerk of Otsego county.


text:
    William Sterling, by Guardian, App’lt, v. Emeline Hill, Resp’t.
   Order affirmed without costs. Defendant’s appeal dismissed, with ten dollars costs.


text:
    Clark S. Bennett, App’lt, v. Edmund R. Bell et al., Ex’rs of Calvin H. Bell, deceased, Resp’ts.
   Order affirmed, without costs. Held, that as the order does not appear to Slave prejudiced the appellant, it is not necessary to pass upon the question as to the power of the court to amend the verdict.


text:
    Henry Lufton, App’lt, v. Thomas W. Patterson, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. The Syracuse Pressed Brick Company, Resp’t, v. William Duffus, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. The Syracuse Pressed Brick Company, Resp’t, v. Charles H. Baker, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    James G. Hillidge, Resp’t, v. Albert B. Park, App’lt.
   Order reversed, with ten dollars costs and disbursements.


text:
    In the Matter of the Estate of George W. Dodge, Deceased. Sarah D. Dodge et al., App’lts, v. C. Lansing Jones, Resp’t.
   Order modified by inserting therein after the words “ terms thereof” the following: “Without prejudice to any proceeding or action to obtain a benefit -under the third clause of the will,” and, as modified, affirmed, with ten dollars costs and disbursements to Stevens as guardian ad litem, payable out of the funds.


text:
    Clark S. Bennett, Respt, v. Edmund R. Bell et al., Ex’rs of Calvin H. Bell, Deceased, App’lts.
   Judgment and order affirmed, with costs.


text:
    Melissa Squires, App’lt, v. Oliver P. Hurd, Resp’t.
   Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held: 1. That the court erred in limiting the ■defendant’s liability to negligence. 2. That the plaintiff is entitled to recover for such injuries as resulted from defendant's change of the natural course of the stream. =


text:
    William Duffus, Resp’t, v. Christoph Schwinger et al., App’lts.
   Order refusing a new trial On the ground of surprise reversed, and a new trial ordered, and judgment and order on minutes vacated upon payment of the •costs of the trial by the defendants within twenty days; if such costs are paid neither party to have costs of the appeal. In case the costs are not so paid, the orders and judgment are affirmed, with costs of appeal from judgment.


text:
    Esther Y. McCarthy, Resp’t, v. Eugene McCarthy, App’lt.
   Judgment and orders affirmed, with costs of the appeal from the judgment only.


text:
    Charles W. Bardeen, Resp’t, v. Alvin P. Chapin, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    David K. McCarthy, Dennis McCarthy and Thomas Emory, Resp’ts, v. Oliver S. Vreeland, App’lt.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


text:
    Ira Rounds, App’lt, v. John Fenderson, Resp’t.
   Judgment affirmed, with costs.


text:
    Jennie L. Baldwin, App’lt v. Silas H. Walker et al., Resp’ts.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that evidence of Olive D. Walker was improperly received. See Steele v. Ward, 30 Hun, 555; Matter of Hewitt, 21 W. Dig., 296; Erwin v. Erwin, 54 Hun, 166; 26 St. Rep., 759.


text:
    Francis J. Coe, Adm’rx, App’lt, v. The Rome, Watertown & Ogdensburg Railroad Co, Resp’t.
   Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, that the evidence presented questions of fact which should have been submitted to the jury.


text:
    George Alden, Rec’r, App’lt, v. Edward K. Clark, Impl’d, Resp’t.
   Interlocutory judgment, so far as appealed from, reversed, with costs of the appeal to the appellant, and demurrer to the first and second alleged defenses sustained.


text:
    Jonathan L. Watrous, Resp’t, v. Richard C. Duell, App’lt.
   Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the respondent shall within twenty days stipulate to modify the judgment and order by deducting therefrom $20.43, in which event the order and judgment, as so modified, are affirmed, without costs of the appeal to either party.


text:
    John Hase, Resp’t, v. J. Warren Kenton, App’lt.
   Judgment of the county court, and judgment of the justice’s court modified by deducting from the amount of damages awarded the sum of $38.58, and by striking out the costs awarded in the county court, and as so modified affirmed, without costs of appeal in this court to either party.


text:
    George Alden, Rec’r, App’lt, v. John La Grange, Impl’d, Resp’t.
   Interlocutory judgment, so far as appealed from, reversed, with costs of the appeal to the appellant, and demurrer to the first and second defenses sustained.


text:
    William A. Curtin, Resp’t, v. William E. Barton, App’lt.
   Judgment affirmed, with costs. Leave to appeal to the court of appeals granted, on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    George Campbell, Resp’t, v. Patrick Hannon, App’lt.
   Judgment affirmed, with costs. Leave to appeal to the court of appeals grantee! on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    Henry B. Sewell, Resp’t, v. Aaron M. Lathop, App’lt.
   Order modified by striking out the words, “ with costs to abide "the event,” and inserting in lieu thereof the words, “upon payment of the costs of the trial; if such costs are not paid within twenty days, the motion for a new trial denied, with costs; ” and, as so modified, affirmed, without costs of the appeal to either party. See Bailey v. Park, 5 Hun, 41; Comstock v. Dye, 13 id., 113; Kelly v. Frazier, 27 id., 314; Roney v. Aldrich, 44 id., 320; 7 St. Rep., 669.


text:
    The People, App’lts, v. Charles Mason, Resp’t.
   Judgment reversed upon the exceptions, and a new trial ordered, with costs to abide the event. Held, that the action was properly brought. See chapter 377, Laws 1888.


text:
    Frederick Kingsbury, Resp’t, v. Savillian F. Traffarn, App’lt.
   Judgment affirmed, with costs.


text:
    Arlington D. Bassett, App’lt, v. Ralph Resseguie and Percy Davis, Resp’ts.
   Judgment of the justice’s court and county court, as to Resseguie, affirmed, with costs; and, as to Davis, reversed, without costs of appeal in the county court or this court.


text:
    Frank E. Gregory and William E. Gregory, Resp’ts, v. James W. Dean and Clarence W. Dean, App’lts.
   Judgment affirmed, with costs.


text:
    Jacob Van Orman, Resp’t, v. Maria Van Orman, App’lt.
   Judgment affirmed, with costs.


text:
    James H. Bouton, Resp’t, v. Thomas S. Smith, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People, Resp’ts, v. George W. Stoutenburgh, App’lt.
   Appeal dismissed. People v. Havens, 3 Crim. Rep., 286, followed.


text:
    George Douglas, Resp’t, v. Michael H. Callahan, App’lt.
   Order affirmed, with ten'dollars costs and disbursements.


text:
    New York Common Pleas — General Term.
    Filed December 5, 1892.
    Siegifried S. Zarek, Resp’t, v. The American Biscuit & Mfg. Co., Impl’d, App’lt.
   Per Curiam.

As the question decided depends mainly upon the degree of credibility which the justice below saw to to ments of the several witnesses, and as we perceive no error in the conclusions drawn by the justice from the facts as found by him, the judgment appealed from should be affirmed, with costs.


text:
    Filed February 23, 1893.
    Catherine Kern, Resp’t, v. Phillipina Klein, App’lt.
    Appeal from judgment of the sixth district court.
   Judgment reversed, new trial ordered; costs to the appellant to abide the event.


text:
    Joha A. Baines, Resp’t, v. Henry De Forrest et al., App’lts.
    Appeal from the judgment of the ninth district court.
   Judgment reversed, new trial ordered; costs to abide the event.


text:
    The Lamson Consolidated Store Service Co., App’lt, v. Adolf Rothschild, Resp’t.
    Appeal from judgment of the sixth district court.
   Judgment reversed, new trial ordered; costs to abide the event.


text:
    Edward C. Boughton, Resp’t, v. Abraham S. Davies, App’lt.
    Appeal from order of discontinuance, third district court.
   Appeal dismissed, without costs. The court on appeal having no jurisdic- • tion.


text:
    Daniel Rosenbaum, Resp’t, v. Emma Mollner, App’lt.
    Appeal from judgment of the seventh district court.
   Judgment affirmed, with costs.


text:
    M. C. Milnor, Resp’t, v. James T. White, App’lt.
    Appeal from judgment of the third district court.
   Judgment affirmed, with costs.


text:
    Nathan Goldberg, Resp’t, v. David Cohen, App’lt.
    Appeal from judgment of fifth district court.
   Judgment reversed, new trial ordered ; costs to appellant to abide the event.


text:
    Walter F. Parker, Surv. Partner, Resp't, v. A. W. Lightbourne, App’lt.
    Appeal from judgment of the eleventh district court.
   Judgment affirmed, with costs.


text:
    Filed March 6, 1893.
    Solomon Samplinsky, Resp’t, v. Charles E. Pierce, App’lt.
    Appeal from the judgment of the fifth district court.
   Judgment affirmed by default, with costs.


text:
    John H. Rieger, Resp’t, v. William J. Swan, App’lt.
    Appeal from judgment of the city court.
   Judgment reversed; new trial ordered; costs to appellant to abide the event. Reversing 51 St. Rep., 140.


text:
    Theresa Taussig, Resp’t, v. Jacques L. Neppel, App’lt.
    Appeal from judgment of the fourth district court
   Judgment affirmed, with costs.


text:
    Christian Sanders, Resp’t, v. Thos. Q. Seabrook, App’lt.
   And four other cases, same title.

Appeal from judgment of the seventh district court.

Judgment affirmed, with costs.


text:
    Moses M. McKee et al., Resp’ts, v. James Rogers, App’lt.
    Appeal from judgment of a district court, in an action for broker’s commission tried by the court.

      James A. Deering, for app’lt; A. G. N. Vermilyea, for resp’ts.
   Per Curiam.

The case is close and not free from doubt; but, on all the evidence, we are of opinion that the proof was insufficient to warrant the inference that the broker procured a purchaser to buy on the terms of the defendant’s offer.

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


text:
    Filed March 8, 1893.
    The Cochran Cotton Seed Oil Co., Resp’t, v. Theo. B. Haebler et al., App’lts.
   Motion for leave to appeal to court of appeals granted.


text:
    William P. Roome et al., Resp’ts, v. Frederick C. Jennings et al., App’lts.
   Motion for reargument denied, with ten dollars costs.


text:
    Newton Squire, Pl’ff, v. Benjamin Senia et al., Def’ts.
   Motion for leave to go to court of appeals granted.


text:
    George Merritt, Resp’t, v. Thomas F. Goodrich, App’lt.
   Motion for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    The State Bank of Rock Valley, Resp’t, v. Wallace C. Andrews, App’lt.
   Motion for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    The Domestic Sewing Machine Co., App’lt, v. Margaret Barr, Resp’t.
   Motion for reargument denied, with ten dollars costs.


text:
    Edward Duffy, Resp’t, v. John Dawson, Def’t. Cornelius H. Evans, App’lt, v. John Dawson, Def’t.
   Motion for reargument or for leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    David H. Carroll, Resp’t, v. Charles Tucker, App’lt.
   Motion for leave to appeal to court of appeals denied.


text:
    Jennie Fisher, Resp’t, v. R. B. Monroe et al., App’lts.
   Motion for reargument denied, with ten dollars costs.


text:
    Charles Kummer, Resp’t, v. The Christopher & East Tenth St. R. R. Co., App’lt.
   Motion for reargument denied, with ten dollars costs.


text:
    Bernard Zivi, Resp’t, v. Elias Einstein, App’lt.
   Motion for reargument denied, with ten dollars costs.


text:
    Frederick Haas, Resp’t, v. Pietro Altieri, App’lt.
   Motion for reargument or for leave to appeal to court of appeals denied, with ten dollars costs.


text:
    The People, Pl’ffs, v. Alfonso Masucci, Def’t.
   Motion to vacate judgment entered-on a forfeited recognizance granted.


text:
    The People, Pl’ffs, v. Charles Schaeffer et al., Def’ts.
   Motion to vacate judgment entered on a forfeited recognizance granted.


text:
    The People, Pl’ffs, v. William T. Demarest et al., Def’ts.
   Motion to vacate judgment entered on a forfeited recognizance granted.


text:
    Howard A. Sperry, Pl’ff, v. Theodore H. Hellman et al., Def’ts.
   Motion for reargument or leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    William H. Lee, App’lt, v. Meyer Corn, Resp’t.
    Appeal from order of the city court vacating an order of arrest granted at special term.
   Order affirmed, with costs.

Affirming 51 St. Rep., 157.


text:
    Filed March 10, 1893.
    William M. Morowski, Resp’t, v. William F. Rohrig, App’lt.
    Appeal from judgment of the city court.
   Judgment reversed, new trial ordered; costs to appellant to abide the event.


text:
    Filed March 17, 1893.
    William A. Townsend et al., App'lts, v. Philo P. Hotchkiss, Resp’t.
    Appeal from judgment ot this court, Hon. L. A. Giegerich
   Judgment affirmed, with costs.


text:
    John Q. Preble, Resp’t, v. William M. Franklin, App’lt.
    Appeal from order of this court, Hon. R. A. Pryor, J.
   Order affirmed, with costs.


text:
    W. Newton Collins et al., Resp’ts, v. The North Side Pub. Co., App’lt.
    Appeal from order of the city court.
   Order affirmed.


text:
    Pasquale Streppon, Resp’t, v. William F. Leonard, App’lt.
    Appeal from judgment of the city court, referee’s report.
   Judgment affirmed.


text:
    Benjamin Barker, Jr., App’lt, v The Central Park, North & East River R. R. Co., Resp’ts.
    Appeal from the judgment of this court, Hon. L. A. Giegerich, J.
   Judgment affirmed.


text:
    Bertha Pulfer, App’lt, v. Michael Mahler, Resp’t.
    Appeal from judgment of the city court.
   Judgment affirmed.


text:
    The Bradley & Currier Co., Limited, App’lt, v. James J. Lally, Resp’t.
    Appeal from judgment of city court.
   Judgment affirmed.

Affirming 51 St. Rep., 152.


author: Bischoff, J.

text:
    The People, Pl’ffs, v. Jas. Kelly and John Von Glahn, Def'ts.
    Application to be relieved from the forfeiture of a recognizance.

      De Lancy Nicoll, for pl’ffs; O. J. Hochstadter, for def’ts.
   Bischoff, J.

This application is denied because it does not appear that the -expense of recapture of the principal and the costs of the proceeding to enforce the forfeiture have been paid. People v. Lasher, 34 St. Rep., 624. It may, however, be renewed upon proof of the facts omitted.


text:
    Bernard B. Christ, Resp’t, v. Bradley C. Chetwood, App’lt.
    Appeal from judgment of the general term of the city court, affirming judgment on verdict and order denying new trial.

      Jesse K. Furlong, for app’lt; Herman G. Loew, for resp’t.
   Per Curiam.

The case was well decided by the court below; and nothing need be added to the argument at general term.

Judgment affirmed on opinion of Yan Wyck, J., with costs.

Affirming 49 St. Rep., 452.


text:
    New York Superior Court — General Term.
    Filed April 4, 1893.
    James Talcott, Resp’t, v. Morris Levy, Rebecca Levy and Mahlke Charmack, App’lts.
    Appeal by the defendants from a judgment entered on a decree of the special term of this court, setting aside, as a fraud upon creditors, certain voluntary transfers made in the year 1888 by the defendant, Morris Levy, to his wife, Rebecca Levy; declaring plaintiff’s judgment a lien on the premises conveyed; and directing personal judgment for the amount thereof against the defendant, Rebecca Levy.
    Carter, Pinney & Kellogg, for resp’t; Ira Leo Bamberger, for app’lts.
   Per Curiam.

The judgment is affirmed upon the opinions of the learned trial judge.

Affirming 47 St. Rep., 399.


author: McGown, J.

text:
    City Court of New York — General Term.
    Filed February 8, 1893.
    William H. Morowski and James S. Combs, Resp’ts, v. William F. Rohrig, App’lt.
    This action was brought to foreclose a mechanic’s lien, for balance due on contract, and for extra work; and judgment was entered in favor of the plaintiffs for the sum of two hundred and eighty-five dollars (<§285) for extra work, upon the findings of fact and conclusions of law made by the trial justice, at an equity term of this court.

      Gumbleton, Flanagan & Hottenroth, for resp’t; Simon Sultan, for app’lt.
   McGown, J.

After a careful examination of the appeal book herein, of the rulings and findings of the trial justice, and of the exceptions taken by the attorney for the defendant on the trial herein, we find no error committed by the trial justice, and that there are no merits in the exceptions taken herein.

Judgment appealed from must be affirmed, with costs to the respondents.

Van Wyck and Fitzsimons, JJ., concur.


author: Van Wyck, J.

text:
    Charles Leck, Resp’t, v. Braender, App’lt.
    Appeal by defendant from judgment entered in favor of the plaintiff on verdict of a jury, and from order denying new trial.

      Bartlett, W. & H., for app’lt; A. P. Wagener, for resp’t.
   Van Wyck, J.

The appellant’s counsel, although discussing some exceptions to the ruling of the judge as regards instructions^ to the jury, frankly states in his brief that ‘‘the main ground of this appeal is that, on all the evidence, the verdict of the jury was contrary to the evidence and contrary to law, and is raised by the appeal from the order dem ing the motion made for a new trial.” However, a careful reading of all the evidence adduced on the trial forces the conclusion that the verdict is not against the evidence, weight of evidence, or law, and that the same is fully justified by the evidence and the legal inferences which a jury has the right to draw from the specific facts proven on the trial. The judgment and order should be affirmed, with costs.

Fitzsimons, J., concurs.


author: Fistsimons, J.

text:
    Filed March 17, 1893.
    David M. Koehler, Survivor, App’lt, v. John J. Gorman, Sheriff, Resp’t.
    Appeal from judgment dismissing complaint,.

      Charler Goldzier, for app’lt; William E. Stillings, for resp’t.
   Fistsimons, J.

The stay of proceedings con'ained in the order to show cause, dated July 28, 1892, applied to all of the property levied upon by the defendant under the executions issued by plaintiff against Frank O. Sullivan and restrained, forbid and prevented defendant from proceeding further under said executions until said stay was dissolved, which did not occur until August 9, 1892.

It is therefore very evident that the sheriff had not sixty days free from said stay during which he could exercise his official duties, and consequently this action was prematurely brought.

Therefore the trial justice was right in dismissing the complaint herein.

Ehrlich, Ch. J., and McGown, J., concur.


author: Fitzsimons, J.

text:
    Bernard Katz et al., App’lts, v. Catharine Atfield, Admr’x, Resp’t.

      Henry Daily, Jr,, for app’lts; John McGuin, for resp’t.
   Fitzsimons, J.

The order of the general term' of this court, dated ¡November, 1892, required the payment by the appellant herein of thirty dollars costs imposed by the order of Justice McCarthy as well as all other motion costs imposed at any time by the court against said appellant and unpaid at the time of the making of the said general term order.

Whatever the amount of said costs were, appellant was bound to know, and respondent herein was not required to tax the same by the clerk of this court.

The appellant’s failure to pay snch costs entitled the special term justice to> make the order appealed from, whenever it appeared to his satisfaction that the conditions and requirements of said general term order were not complied with.

The appeal papers show that the appellant herein failed to comply with said general term order, and therefore the order appealed from was rightly made and must be affirmed, with costs.

Ehrlich, Ch. J., concurs.


author: Gildersleeve, J.

text:
    Henry W. Homiston, Resp't, v. The Long Island Railroad Co., App'lt.

      (New York Superior Court, General Term.

      Filed April 3, 1893.)

    Bailroad—Assault by conductor—Ejection for nonpayment of fare.
    Plaintiff boarded one of defendant’s trains at a station where the ticket office was closed. He handed the conductor a sum ten cents in excess of his fare to his destination, and the conductor postponed handing plaintiff his change and issuing to him a duplex ticket until after the train stopped at the next station, at which plaintiff changed cars. Plaintiff met on the platform the conductor of the first train, who shouted to the conductor of the second train, as it was moving out of the station, that he (the first conductor), owed plaintiff ten cents change. _ It also appeared that other words were shouted relating to the transaction, and that there was considerable confusion and ringing of hells at the time. The conductor of the second train handed plaintiff ten cents, but demanded his fare or a ticket, and ejected him for nonpayment thereof, testifying on the trial that all he heard was something about giving up ten cents.” Held, in an action for assault, that the court erred in ruling as matter of law that plaintiff had been wrongfully ejected, and that the question should have been submitted to the jury whether the conductor of the second train had sufficient evidence that plaintiff was entitled to ride on said train to his destination.
    Appeal from judgment, entered on verdict of a jury, and from an order denying defendant’s motion for a new trial.

      E. B. Hinsdale, for app’lt; William H. Law, for resp’t.
   Gildersleeve, J.

This action was brought to recover damages for personal injuries sustained by plaintiff by reason of an alleged assault upon him, committed by the employees of defendant while he was a passenger upon one of defendant’s trains, on November 21, 1890. On that day the plaintiff boarded one of the trains of defendant, at the village of Queens, a small station a few miles east of Jamaica. The ticket office was not open at that station, so that it was not possible for plaintiff to procure a ticket there. He entered a ear, without a ticket, and just before the train got to Jamaica the conductor, in charge of that train, asked the plaintiff for his fare. The plaintiff handed the conductor fifty cents. The fare from Queens to Long Island City, or to Flatbush Avenue, Brooklyn, was the same, forty cents. It was the duty of the conductor to give him ten cents in cash and a duplex ticket entitling him to a ride to either of these stations, as he might elect. '* is some conflict of evidence as to which of these destinations the plaintiff said he was going. The plaintiff alleges that when he was asked where he was going, he replied that he was going to Elatbush Avenue, Brooklyn ; but the conductor testifies that he understood him to say that he was going through to Long Island City. The conductor said when he took the fifty cents from plaintiff, “I will return you the change and the ticket soon,” or words to that effect, and went on. Jamaica is a point of junction of two lines of railroad belonging to the defendant, the one line running to Long Island City, the other line running from Jamaica to Elatbush Avenue, in the city of Brooklyn. When the plaintiff reached Jamaica, the train for Brooklyn was standing there on a track, with a platform between it and the track upon which th# Long Island City train pulled into Jamaica. Here passengers are transferred from the one line to the other. When the Long Island City train, upon which plaintiff was a passenger, reached Jamaica, the conductor had not returned with the change or ticket As the plaintiff wished to take the other train, going to Brooklyn, which left in a few moments, he went in search of the conductor, and found him just as the Long Island City train was leaving Jamaica. He asked the conductor for the change and ticket, but the conductor had not time, as he testifies, to give him either. The conductor testifies that he, said conductor, thereupon shouted to the conductor of the Brooklyn train that “ I had that man’s (referring to plaintiff) ticket, and owed him ten cents change, and that I would settle with him (the other conductor) when I got back to Jamaica.” Plaintiff testifies that the conductor of the Long Island City train shouted to the other conductor, “ That is all right Give him ten cents.”

The conductor of the Brooklyn train testifies that he only heard the other conductor say “ something about giving up ten cents, and I gave ten cents to somebody. I cannot swear to whom I gave it” He also testifies that there was more or less noise and confusion and ringing of engine bells, at the time. The plaintiff got onto the Brooklyn train, which started very shortly after the leaving of the Long Island City train. When the train was in motion, the conductor came along to the seat in which plaintiff sat, and asked plaintiff for his fare. The evidence is conflicting as to exactly what took place then. The‘plaintiff, who is substantially corroborated by the witness Bussell, who was sitting with plaintiff, testifies : “ The conductor came through, and said, ‘ Here is your ten cents; I don’t know what I am giving it to you for;’ I said, ‘It is the change out of a fifty cent piece which I gave to the other conductor for my fare to Elatbush avenue ; ’ he said, ‘ I want your ticket; ’ I said’ ‘I have no ticket; I have paid my fare once; ’ he said. ‘You will pay your fare, or give me a ticket, or you will get off; ’ I said, ‘I will do neither.’ ” There seems to have been considerable talk, and the conductor appears to have returned several times and renewed his demand. When the train reached Morris Park, and came to a standstill, the conductor again asked for plaintiff’s fare, and, upon plaintiff’s refusal to pay, the conduct.or, with the assistance of the brakeman, put plaintiff off the train. As to the degree of violence used, there-is a conflict of evidence, as plaintiff and Russell testify that plaintiff was roughly handled, while the' conductor and the brakernan testify that the removal of plaintiff from the train was accomplished without any unnecessary force or violence. After plaintiff had been removed from the car he paid his fare, and was allowed to return to the car, and he continued his journey to Brooklyn.

The plaintiff was rightly on the first, or Long Island City, train, and lawfully entitled to ride to Flatbush avenue. A passenger, unable to procure a ticket through the fault of the company, may take passage on the train, and, upon a tender of the ticket fare, will be entitled to all the rights and privileges that a ticket would afford him. Chicago, St. L. & P. R. R. Co. v. Graham, 3 Ind. App. Ct., 28. On payment of his fare, the plaintiff’s contract was complete insofar as his right to be carried to his destination was concerned. Had the conductor of this train, to whom plaintiff paid the fifty cents for his fare, ejected him for the reason that he had no evidence that plaintiff had a right to ride on the train, defendant would have been obliged to redress the wrong by the payment of compensatory damages.

If the plaintiff, while on the second or Brooklyn train, did not substantially comply with the reasonable regulations of the defendant, which required him to produce a ticket or pay his fare, or in some other way show sufficient evidence of a right to ride, the conductor of that train was authorized to remove him, and for this act of the conductor he has no claim against the defendant. This proposition may be otherwise stated as follows: Unless the contract relations, established between the plaintiff and the defendant by what occurred prior to the boarding of the Brooklyn train by plaintiff, continued and had the same force and effect in respect of the acts of the second conductor as of the first conductor, and the plaintiff’s rights and defendant’s obligations were not affected by the plaintiff’s change from one train to the other, the plaintiff cannot recover in this action. If the conductor, in the execution of lawful instructions to remove the plaintiff from the car, used unnecessary force and violence, he, the conductor, and not the corporation, is liable for such malicious excess. Hibbard v. N. Y. & E. R. R. Co., 15 N, Y., 455.

A railroad company has the right to establish reasonable regulations for the government of passengers upon its trains, and to forcibly eject therefrom those who refuse to comply with such regulations. The regulation requiring passengers either to present evidence to the conductor of a light to a seat, when reasonably required so to do, or to pay fare, is reasonable, and for non-compliance therewith such passenger may be excluded from the car. The wrongful taking of a passenger’s ticket by the conductor of a previous train does not justify a passenger in violating the lawful regulations upon another train. For the wrongful act in taking Ms ticket, he has a complete remedy against the company. Under such circumstances, it is the duty of the conductor of the second train to enforce the regulations of the company by putting the passenger off in case he persistently refuses to pay fare. A passenger, under such circumstances, has the right to refuse to pay fare, but, when demanded by the conductor, he must either pay or walk peaceably off the' train, and his remedy is an action against the company for damages sustained by any detention or any humiliation suffered from having to walk off the train. If he waits for the application of force to remove him, he does so in his own wrong; he invites the use of the force necessary to remove him; and if no more force is applied than is necessary to effect the object, he can neither recover against the conductor or the company therefor. Ho one has a right to resort to force to compel the performance of a contract made with him by another. Hibbard v. N. Y. E. R. R. Co., supra, Townsend v. N. Y. C. R. R. Co., 56 N. Y., 295.

In applying the law as above stated to the case under consideration, this question is presented : Was the conductor right in removing the' plaintiff from the Brooklyn train at Morris Park, or had the plaintiff a right, under the circumstances, to remain in the car and be carried to his destination, without producing a voucher showing that he had that right, or paying a fare to the conductor? The removal of the plaintiff by the conductor of the Brooklyn train was not authorized, if the conductor had sufficient evidence of the plaintiff’s right to ride. The conductor was entitled to evidence showing that the plaintiff had acquired a right to be transported on this train to Brooklyn, or to demand plaintiff’s fare. But, under the circumstances of this case, we do not think there was an obligation upon the plaintiff to show the conductor that he (the plaintiff) had the physical possession of a ticket and to turn it over to the conductor, or pay his fare. The defendant should not be allowed to hide behind its own wrong on failing to furnish the plaintiff with a ticket, or a duplex ticket, and find immunity in its rule that a passenger must show a ticket or pay his fare, when, through no fault of his own, he had no ticket, and refused to pay his fare a second time, and when the conductor had sufficient evidence to assure him of the purchase of a ticket by plaintiff, which gave him a right to be transported to his destination.

We think the testimony fairly raises this question, whether the conductor of the Brooklyn train had sufficient evidence that the plaintiff was entitled to ride on that train to his destination, which, as a question of fact, should have been submitted to the jury.

The learned trial judge charged the jury that “the plaintiff was wrongfully removed from that car, and he should be compensated for the injuries he sustained by reason of the removal; that is, for the injury to his person and to his feelings, if he sustained any." To this portion of the charge the defendant's counsel duly excepted.

The conductor of the Brooklyn train swears that there was considerable noise and confusion at the time the change was made at Jamaica, and that he failed to understand from the other conductor the fact that plaintiff, had already paid his fare. He testifies that he only heard the conductor of the other train say “ something about giving up ten cents, and I gave ten cents to somebody. I can’t swear to whom I gave it.” Were the circumstances such as to justify a belief that he did hear and understand what the other conductor said ? This question was one for the jury to determine. The conductor of the Brooklyn train does not deny that he paid plaintiff ten cents, and he testifies: “ When the conductor called out, 1 Give that man ten cents,’ I knew I could get it back. That has happened before a number of times. It was presumable that it was because he did not have time to make the change.” Plaintiff testifies that the conductor came through and said: “ Here is your ten cents ; I don’t know what I am giving it to you for.” And yet the conductor testifies that it was presumably because the other conductor could not make the change. Change for what, it may be asked, if not for money paid for a ticket or fare ? The witness, Bussell, testifies that the two trains were alongside of the same platform; that the platform was lighted, and that the conductor of the Long Island City train had his lantern in his hand, and pointed towards the plaintiff, as he shouted to the other conductor: “ This is all "right; give this man ten cents.”

The conductor of the Long Island City train testifies that he called to the other conductor that “ I had that man’s ticket and owed him ten cents change; and that I would settle with him, (presumably the other conductor meaning) when I got back to Jamaica.” It does not appear how wide the platform, separating the two trains, was. The conductor of the Brooklyn train swears that the Long Island City train had “ moved quite a ways away from me ” at that time. The plaintiff’s own testimony, also indicates that the Long Island City train was in motion, leaving Jamaica, when plaintiff succeeded in finding the conductor of that train, and asked him for his duplex ticket and change, With which request the conductor of the Long Island City train swears he had not time to comply, and, therefore, shouted to the other conductor that “ I had that man’s ticket and owed him ten cents change, and that I would settle with him when I got back to Jamaica.”

Although, as a passenger, plaintiff was compelled to change cars at Jamaica, yet both trains were owned and operated by the defendant, and the change was necessitated by the defendant’s own arrangements. Identically similar tickets, with the exception of the name of the final destination, were issued to carry passengers from Queens to Long Island City or to Flatbush avenue, Brooklyn. Notwithstanding the change necessary at Jamaica, the fare was the same. The journey from Queens to Blatbush avenue, Brooklyn, was to all intents and purposes one continuous trip. It might be said that the conductor of the Brooklyn train stood in the same relation to the conductor of the Long Island City train that a second conductor would have occupied upon that train. The plaintiff used due. diligence to secure tangible evidence of his right to a seat in the Brooklyn train. He sought the conductor to whom he had paid his fare, while the change was taking place at Jamaica, and was a witness to what passed between the two conductors. In pursuance of the statements made by the first conductor to the second conductor, plaintiff received from the second conductor the ten cents change that was his due. Was he not warranted in assuming, when he boarded the Brooklyn train, that he had secured the rights for which he had paid, and could ■ with justice rely on the assurances and directions of the servant of defendant, tending to and designed to direct him and to assure to him such rights ?

In the case of Hamilton v. Third Ave. R. R. Co., 58 N. Y., 25, the plaintiff, by instructions of the conductor of the car upon which he had been riding, and to whom he had paid his fare, changed cars, and was told by the conductor of the car to which he was transferred, upon entering the same, that no transfer ticket was necessary; that if he came from the other car, he could go on board of the second car, and continue his journey on that car without any additional fare. Subsequently, when he failed to produce a ticket, the conductor ejected him from the car. It was held by the court of appeals in that case that this statement of the second conductor was equivalent to an assurance that he could ride on the car under his control without further payment of a fare, or evidence of a right so to do; and that the company would be liable for his wrongful ejectment from the car by the conductor who had given this assurance.

The case at bar, while not as strong on this point, much resembles the Hamilton case.

While the question whether the plaintiff was wrongfully or rightly removed was, upon established facts, a question of law, we think it was the province of the jury, upon the evidence, to determine the facts, and that it was error for the court to take this question away from the jury, and to charge that the plaintiff was wrongfully removed.

If the conductor of the Brooklyn train did not have the evidence of plaintiff’s right to a seat, he had the right to eject the plaintiff, and the plaintiff’s remedy was against the defendant for the breach of contract which occurred when the first conductor failed to give the plaintiff a duplex ticket before he boarded the Brooklyn train. Under these circumstances the defendant could not be held for an unlawful assault for the act of the conductor of the Brooklyn train in ejecting the plaintiff from that train. This action is one for assault, and nothing else. The conductor had a legal right to eject plaintiff from the train if he was unlawfully there. The plaintiff’s legal right to a seat on the train depended on questions of fact which should have been submitted to the jury.

For the reasons above stated, the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Sedgwick, Oh. J., concurs.


text:
    Mary J. O'Dell, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts.

      (New York Superior Court, General Term,

      Filed April 3, 1893.)

    Railroad —Elevated—Evidence
    Where a witness for the plaintiff in an action against an elevated railroad, who was a former tenant of the building, testifies on cross-examination that the railroad made a big increase in his business, it is error to exclude as immaterial a question as to how much more rent, in his opinion, it was worth on account of the road being there.
    Appeal from a judgment of the equity term.

      Sackett & Bennett (Henry W. Sackett, of counsel), for resp't; Davies & Rapallo (R. L. Maynard and Herbert Barry, of counsel), for app'lts.
   Gildersleeve, J.

The judgment awards to plaintiff the sum of $2,931.61, damages and costs, and enjoins the defendants from operating their elevated railroad in front of plaintiff’s premises, unless defendants pay to plaintiff $300, with interest from the entry of the judgment, and stipulate not to use the judgment as a bar to a subsequent action for injuries inflicted after 1890.

The plaintiff’s leasehold estate, under the lease by which she claimed title when she brought suit, expired February 1, 1890, and the renewal was at her option. Therefore, on that date, the plaintiff’s interest, which the action was brought to protect, ceased, it was error to grant an injunction which would be operative after February 1, 1890. This error does not necessarily call for a reversal, as the judgment can be modified by limiting the operation of the injunction to the period covered by the lease. Welsh N. Y. El. R. R. Co., 35 St. Rep., 35.

Under the third point in the brief of the learned counsel for the defendants, our attention is directed to an alleged error in the exclusion of evidence that we believe to be fatal to the validity of the judgment.

John Connors, a former tenant of one of the buildings in question, was called by plaintiff, and, after testifying to some annoyance from, the railroad, stated, on cross-examination, as follows: “ It made a big increase for my business. The railroad helped my business one hundred per cent; that is all. * * * We had a nice business there, and I guess the elevated road helped us a good deal The trade of that place helped me a good deal.”

Q- “ How much rent more, in your opinion, was it worth on account of the road being there? ”

Counsel for plaintiff objected to the question as immaterial. The court sustained the objection, and the defendants’ counsel only excepted.

This ruling cannot be sustained on the ground on which it was actually placed, to wit, immateriality. The form of ■ objection admits the competency of the evidence, and we are not at liberty to consider -any other ground than that of materiality in support of the objection. Ward v. Kilpatrick, 85 N.Y., 416; Matter of Thompson, 127 id., 467; 40 St. Rep., 200; Tooley v. Bacon, 70 N. Y., 37; Marston v. Gould, 69 id., 220; Vietor v. Bauer, 11 St. Rep., 532; Height v. The People, 50 N. Y., 395; Lefever v. Lefever, 30 id., 40; Purdy v. Man. Ry. Co., 36 St. Rep., 47.

Although the question seems to be objectionable on grounds not taken at the trial, its exclusion on the ground of immateriality, the only ground offered in support of the objection, calls for a reversal. Doyle v. Man. El. R. Co., 128 N. Y., 488; 40 St. Rep., 474; Purdy v. Man. El. R. Co., 36 St. Rep., 43; Welsh v. N. Y. El. R. R. Co., 35 id., 35.

Since the trial of this action it has been effectually settled by the decision in the Newman case, 118 N. Y., 618; 30 St. Rep., 36, and many others unnecessary to consider, that evidence of benefits is material and admissible.

Having reached the conclusion that the judgment should be reversed for this assignment of error, it is unnecessary to discuss any of the other questions raised by the appeal.

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

Dugro, J., concurs.


author: Dugro, J.

text:
    John J. Hopper, Resp't, v. Victor P. P. Erslev et al., Impl'd, App'lts.

      (New York Superior Court, General Term,

      Filed April 3, 1893.)

    1. Pleading—Demurrer.
    Unless a demurrer is clearly bad upon its face it should not be overruled as frivolous.
    3. Same—Mechanic’s lien.
    Where the complaint in an action upon an undertaking given to discharge a mechanic’s lien fails to state the amount of the undertaking, the person to whom it was made, the court wherein judgment was obtained and that it was duly rendered, it is by no means clear that a demurrer thereto is frivolous.
    Appeal from judgment entered upon order overruling demurrer to the complaint as frivolous.
    The complaint alleged that plaintiffs about March 28, 1891, filed a notice of lien against certain premises; that about April 2d, defendants executed and filed with the clerk of the court of common pleas an undertaking to discharge said lien, conditioned that two of the defendants should pay any judgment that might be rendered against said property in any proceeding to enforce said lien ; that it was approved and the notice of lien cancelled and discharged; that about September 30, 1891, in a proceeding brought by plaintiff judgment was rendered and entered against said property in favor of plaintiff; that a copy thereof was personally served on all the defendants accompanied by a demand for payment, and that'no part thereof has been paid.
    These defendants demurred on the ground that the complaint did not allege facts sufficient to constitute a cause of action.

      Carpenter & Hassett, for resp't; Henry B. Weselman, for app'lts.
   Dugro, J.

This is an appeal from a judgment for plaintiff entered upon an order overruling a demurrer to the complaint as frivolous.

The order is brought up for review by the notice of appeal.

Unless the demurrer is clearly bad upon its face it should not have been overruled upon the motion.

The failure to state in the complaint the amount of the bond, the person to whom it was made, the court wherein the judgment was obtained and that it was duly rendered, and other omissions, • make the plaintiff’s success upon a trial very doubtful.

We are by no means certain that the demurrer is not good.

J udgment reversed, with costs.

Order reversed, without costs.

Sedgwick, Oh. J., concurs.


text:
    John Butterworth, App'lt, v. James Clarkson et al., Resp'ts.

      (New York Superior Court, General Term,

      Filed April 4, 1893.)

    Master and servant—Negligence.
    Plaintiff, while in the employ of defendants, was injured by the breaking of a plank which had been placed in position by the foremau, who told him to pass over it and remove a scaffold from an adj lining ya d to a truck. It was not shown that such plank had been provided by defendants. Held, that the act which caused the injury was not one pertaining to the duty which the master owed to the servant, but was a detail of the business within the discretion of the foreman and an incident to the employment which plaintiff assumed, and that defendants were not liable.
    Appeal from decision of trial court, dismissing complaint ; plaintiff’s exceptions ordered to be heard in the first instance at the general term.

      Matthew P. Ryan (William H. Arnoux, of counsel), for app'lt; Fettretch, Silkman & Seybel (Joseph Fettretch, of counsel), for resp'ts.
   Gildersleeve, J.

This action is for personal injuries that the plaintiff received from the breaking of a plank while he was in the employ of the defendants as a painter. The defendants’ foreman placed the plank in position and directed the plaintiff to pass over it, for the purpose of removing a scaffold from an adjoining yard to a truck. The plank was defective and unable to sustain the plaintiff’s weight.

The learned trial judge dismissed the complaint in these words : 16 It clearly appears that the accident occurred in consequence of the improper use made of a plank, which is not shown to be the defendants’ plank, by a fellow servant of the plaintiff.”

Drawing all inferences from the evidence presented that might be justly adopted in favor of the plaintiff, as the law requires upon a motion to dismiss, and assuming there is some evidence tending to show the plank belonged to defendants, there is absolutely no evidence to support a finding that the plank was furmished by the defendants for the use to which it was put by the foreman. The plank was applied by the foreman to a use that was a detail of the business within his discretion and judgment in the management of the work. For an injury resulting from such an act the defendants are not liable. It was an incident to the employment, which the plaintiff assumed. . Loughlin v. State, 105 N. Y., 159; 6 St. Rep., 826; Cullen v. Norton, 126 N. Y., 1; 36 St. Rep., 359. The liability of the master depends upon the character of the act in the performance of which the injury arises. Crispin v. Babbitt, 81 N. Y., 516. To hold the master liable, the act must be one pertaining to the duty which the master owes to hie servant. Dangers that are unavoidable after the exercise by the master of proper care and precaution in guarding against "them are risks incident to the employment, and are assumed by those who consent to accept employment under such circumstances. McGovern v. C. V. R. R. Co., 123 N. Y., 287; 33 St. Rep. ,416. There was nothing in the place or the character of the work to call upon the defendants to apprehend danger of the kind that arose. It was a detail of the work that defendants could not foresee, and the accident was one which they could not guard against. Neglect can only be affirmed of what can reasonably be foreseen. The defendants had committed the manner of proceeding with the work, as they lawfully might, to a competent foreman, and no amount of care and precaution on their part, could prevent the foreman from picking up an unsuitable board, not provided for.the purpose, and constructing with it a path, in anew and hitherto unused course, and directing a fellow workman to walk upon it. The danger which the plaintiff encountered was not an ascertainable one that could have been avoided by the exercise of reasonable care by the defendants.

For the reasons above stated, we are of the opinion that the complaint was properly dismissed. The exceptions are not well taken, and judgment must be entered for the defendants, with costs.

Sedgwick, Ch. J., and Dugro, J., concur.


author: Hardin, J.

text:
    The St. Lawrence & Adirondack Railroad Co., Pl'ff, v. Julia L. De Camp et al., Def'ts. (Two cases.)

      (Supreme Court, Special Term, Herkimer County,

      Filed March 4, 1893.)

    Condemnation proceedings — Extra allowance — Code Civil Pro., § 8378.
    The extra allowance provided for in § 3872 of the Code is intended as indemnity to the prevailing party for expenses necessarily or reasonably incurred in the proceeding, to be determined from the proofs submitted on that question.

      (Burke v. Candee, 63 Barb., 552, followed.)
    Justice Williams appointed William Neman, Esq., of Utica; 'Charles D. Bishart, Esq., of Lowville, and Albert Story, Esq., of Little Falls, commissioners under the condemnation statutes to assess the damages in each of the above entitled proceedings.
    Á report is submitted as to township number 7, bearing date February 9, 1893, which awards $12,120.64. In township number 1 a report is submitted bearing the same date, which awards $3,112.48, which reports have been filed in the county clerks office at Herkimer. They are now submitted to the court for confirmation. Neither party making any opposition to the reports, and each avowing intention to accept the same and abide. Motion is now made in each of the cases for an order of confirmation and for costs and for an additional allowance. The affidavit of Mr. Adams is read in behalf of the motion and the affidavit of Mr. Burns is read in opposition to the motion. Reference is made' by either side to papers and proceedings already had, together with the evidence taken before Mr. Andrews, referee, as well as the evidence taken before Mr. Kernan, and his two associates, Boshart and Story, commissioners.

      C. D. Adams, for motion; Charles E. Snyder, opposed.
   Hardin, J.

It appears the proceedings were instituted in December, 1892, to condemn the lands referred to in the two proceedings amounting to about 153 acres. It appears that the defendant owned in that vicinity about 6,000 acres in township 1 and 12,000 acres in township 7 which are alleged to be affected by reason of the construction of the plaintiff’s road along the line occupying a distance of some eleven miles across the lands. There is a stream called the North Branch of the Moose river in the vicinity of the location of the road. Sundry questions were apparently raised upon the hearing in respect to the magnitude of the damages sustained by the defendants by reason of appropriating the lands needed by the plaintiff for the construction of its road.

It appears from the papers and affidavits produced that answers were served and issues joined and a reference was had to W. S. Andrews, Esq., to take proofs in respect to the issues raised by the answers, and that his report upon those issues, after hearing the evidence, was favorable to the plaintiff. Thereafter commissioners were appointed and they proceeded to investigate the questions relating to the extent of damages which the plaintiff should pay as a condition of acquiring the lands sought in these proceedings for the purpose of its railroad. Preliminary examination by the commissioners and the counsel of the parties was had in the early stage of the proceedings, obeying that provision of the statute which requires the commissioners to view the premises ; and it is said in an affidavit produced that that preliminary examination occupied some two days; and thereafter proceedings were adjourned and evidence taken at considerable length, occupying, it is said, six days, and that in reducing the evidence there appears to have been 401 pages of type-written matter. And subsequent to the taking of the evidence preparations were made for summing up the case before the commissioners, and the case was summed up, submitted to the commissioners, who thereafter made and delivered their several reports. In township one it appears-the commissioners allowed $3,112.48 ; in township number seven the commissioners allowed $12,120.64, making an aggregate of allowance in the two cases of $15,233.12. It appears from the papers before the court, now that in township one the plaintiff made a written offer of $200 and in township number seven a written offer was made of $920, making the total amount of the two offers $1,120. It appears from statements made by counsel, supported by the evidence, that there was a wide range in the inquiry as to what were the damages ; the range extended so far as to be, in behalf of the defendants, a large sum beyond such sum as has been awarded; apparently the defendants sought to establish that the damages were over $50,000 ; while on the other hand the plaintiff sought to show that the damages didn’t amount to anything, the benefits being equal to all the incidental injuries or damages which might come to the property of the defendants.

It must be assumed here, from the character of the commissioners, that careful attention was given to the evidence and a just solution made of the questions submitted to the commission; therefore, it is to be assumed that the award is a just award, and the motives of the parties on either side antecedent to that are not to be considered on the question which is now submitted to the court, as to whether there should be an extra allowance or not, and, if so, what that allowance should be. Incidentally the learned counsel for the plaintiff calls attention to the circumstances that appear from the answers that were interposed, that minor defenses were suggested which proved unavailing before the referee and that the plaintiff was successful upon those issues Some force must be given, perhaps, to that suggestion, but no more force than simply, perhaps, to intimate that what took place before the referee is not to be considered upon the question of an extra allowance. The statute seems to have provided that these parties when they found themselves differing, failing in a negotiation which perhaps was reasonable on one side and unreasonable on the other, the statute seems to have provided that a formal offer might be made, analogous to the offer made in an ordinary action, and that then there is a provision in the statute that if the party making the offer is successful in the hearing, why, he may obtain costs and throw the costs on the other party. In this case the offer was inadequate: it seems to have been only about one-fifteenth of what was actually recovered. It must be assumed, therefore, that the beneficial provisions of the statute relating to the provisions as to an offer are unavailing to the plaintiff on this occasion. We come, then, down to the question of whether or not this is a proper case for extra allowance, in the light of the facts and circumstances that are presented by the affidavits and proofs that are submitted. Since the last revision of the condemnation law these applications have not been very numerous; I have had occasion to act once or twice under § 3372 of the Code of Civil Procedure, which relates to the question now before the court.

In that section it is provided as follows : “ If the compensation awarded shall exceed the amount of the offer, with interest at the time it was made, or if no offer was made, the court shall in the final order direct that the defendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed of course to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial, and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded.” Under this provision it is to be observed that the defendants are entitled by the statute to a taxed bill of costs; in that taxed bill they are entitled to proceedings before and after notice of trial; in short, about the same provision as is made in an ordinary action. How, in considering the latter 'part of the statute just quoted, 41 and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded,” it is proper to call to mind some adjudications that have been made under a somewhat similar statute authorizing allowances of costs. It has been said that this provision is not to be applied as punitive by reason of improper motives on the part of litigants; neither is it to be applied in sympathy with the party who has had a long and tedious litigation; but it is to be considered rather in the light of a statutory provision for indemnity. I had occasion a good while ago to consider the sections of the Code that are analogous to this in a case that presented very exceptional features. It was an action where the amount involved was $30,000, and there had been success on one side and defeat on the other, and it was said the defeat was very severe; that it overruled supposed equities, and that it was a defeat which was on people who could ill afford it; and counsel, who were then before the court, none other than two gentlemen who have since been judges of the court, Judge Hoxon and Judge Kennedy, argued the motion which was submitted, and I took pains to look up the statute, and the cases applicable to it, and write an opinion, which I have put my hand on, and I find in that opinion some things that are applicable here, and, therefore, I turn now to Burke v. Candee, 63 Barb., 552.

In that case it was held as follows: “An additional allowance is made by way of an indemnity to the party succeeding in the litigation. The court must fix the amount to be allowed, subject to the limitation in the statute,‘that the maximum shall not exceed five per cent. 1 on the amount of the recovery or claim or subject matter involved,’ the sum will depend upon the proper deductions from the proofs submitted as to the indemnity needed for actual expenses in the action, necessarily or reasonably incurred beyond the taxable costs allowed by statute to the prevailing party.” This case has been referred to approvingly in 21 W. Dig.', 47; 81 Hun, 403, and 48 How., 418; therefore, the rule seems to be well established. Applying the principle there laid down to the facts before the court on this occasion, the inquiry is, what is a fair compensation, what is a fair indemnity, to the party who is successful and entitled to have the benefit of this section? How, upon the subject of what is a fair compensation, we have the affidavit of the counsel who conducted the proceedings in behalf of the defendants to the effect that something like two months’ time had been expended in handling these proceedings. I think, however, analyzing that affidavit, that some of the time that is referred to there may have been spent in the reference before Mr. Andrews; but there is another clause in that affidavit which is to be considered, and that is that beyond the taxable costs, and beyond the witness fees, that the party has necessarily expended some $500. Now it is a delicate question always to dertermine what an attorney’s services are worth in proceedings of this character; and perhaps, making due allowance for the days that may have been spent before Mr. Andrews, and eliminating them from this affidavit, there would be days enough left, if the price per day was made high enough, to absorb the full sum which the statute would authorize to be allowed in this ease.

On the other hand, the learned counsel who opposes this motion has omitted to submit an affidavit belittling the actual services that were rendered against him, either as to their value and good faith in the application of them to the issues, or in belittling the number of days that were used ; if the counsel in behalf of the plaintiff had submitted an affidavit that required the affidavit submitted in behalf of the defendants to be taken with some grains of salt, a different question would be presented from what there is now upon the proofs. The upshot of all this proof before the court on this occasion is that there has been a good deal of professional labor bestowed upon the questions that were legitimately before the commissioners. Now, assuming that from these two cases the defendants get a taxed bill of costs which amounts to, perhaps, sixty-five dollars or so in each case, there remains the pertinent inquiry, how much is needed to indemnify, to use the language laid down in Burke v. Candee, the defendants, by reason of the contest that has been had. I am a little perplexed to ascertain accurately, perhaps, what should be allowed. I have reached the conclusion, however, as I must dispose of it on this occasion, that an allowance is permitted by statute in this case of five per cent, and that if there were no questions which addressed themselves to the discretion of the court, perhaps that should be the amount; but under all the circumstances, giving a little weight to what circumstances are presented as having some significance by the learned counsel for the plaintiff, I have concluded, and do now conclude, to allow the sum of four per cent upon the recovery in the respective cases.

‘An order to that effect will be allowed, with ten dollars costs of this motion for preparing, serving and settling the order.