author: Peckham, J.

text:
    Mary Birmingham, by Guardian, Resp’t, v. The Rochester City & Brighton Railroad Co., App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)
    1. Negligence—Street railroads—Liability for injury to passenger.
    Plaintiff while a passenger on one of defendants cars, was injured by the fall of some iron from an iron trough used to balance a lift bridge crossing the canal, constructed and owned by the state and forming part of the highway traversed by defendant’s road. The iron fell because of a defect in the welding of the stirrup. Held, that this proof made no case for the submission of any question of negligence to the jury.
    2. Same.
    The position of a street railroad in attempting to carry on its business of running cars through the public streets of a city has nothing in common with that occupied by a steam railroad in building or leasing a bridge upon which to lay its tracks, and where the street railroad is confronted by one of the canals over which it has no light to build a bridge, but which it is necessary to cross in order to carry out the purpose of its organization, it may cmss such bridge with the permission of the state authorities without thereby making it a part of its appliances, for a latent defect in which it must be held responsible if discoverable in the process of manufacture.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered upon a verdict.

      Theodore Bacon, for app’lt; John Van Voorhis, for resp’t.
   Peckham, J.

The defendant owns and operates a street railroad in the city of Rochester. The Brie canal intersects West Main street in that city, and at the intersection the canal is crossed by a bridge built, owned and maintained by .the state, and in effect the bridgé forms a continuation of the. highway of West Main street. It was built under the authority of the act, chapter 351 of the Laws of 1888, and under the direction of the superintendent of public works, upon plans and specifications drawn up and prepared by the state engineer and surveyor. Its character as a lift bridge was determined by the statute cited, and the above-named state officers had, respectively, the exclusive control of the plans and construction of the bridge. When boats were to pass under the bridge, it was so constructed as to be lifted vertically by hydraulic power. In order to act as a counterbalance, and thus to reduce the amount of power necessary to lift the bridge, heavy weights made of iron troughs filled with pig iron were suspended in the upper part of the frame work of the bridge. They were suspended by cables fastened to the floor of the bridge and passing over pulleys in the upper frame work. The troughs were fastened by means oh stirrups, which were made of iron. The plaintiff was a passenger on one of the defendant’s cars on the 4th of October, 1889, and while the car was slowly crossing the bridge in question one of the stirrups gave way and let one end of the troughs drop so that the pieces of pig iron placed in the troughs slid out, and some of them fel\ upon the car beneath and broke through, and one of them struck) and severely injured the plaintiff. This action was brought to recover of the defendant the damages thus sustained.

The proof showed there was a defect in the welding of the stirrup, which defect was discoverable by the maker in the process of manufacture, but the imperfection was probably not discoverable from an inspection of the stirrup after it was placed in position in the bridge, and it certainly could not be discovered by any means that a person had who used the bridge for the purpose of crossing it, either in a wagon or car, because when the bridge was in condition for a car to cross the stirrups would be eleven or twelve feet above the floor of the bridge; they were movable and raised as the bridge came down to the grade for crossing it.

It was claimed that this plan or mode of construction was manifestly dangerous, and that the danger was so apparent as to be open to ordinary observation, and against the dangers incident to such defective mode the defendant was bound by its contract to protect its passengers. The defect in the plan or method was alleged to consist in the suspension of the iron in the troughs over the heads of people using the bridge, as such troughs were liable to be precipitated upon them whenever a defect should develop itself in the means of suspension.

Tiie evidence as to the defect in the welding of the stirrup and how it was discoverable, and the plan and method of construction of the bridge itself, as above detailed, was uncontradicted. Upon such evidence the trial j udge refused to submit the question of defendant’s negligence to the jury, but held that the defendant was liable, and only the question of damages was left to the jury. This liability had been, in substance, announced by the general term upqn a former appeal to that court from a judgment of non-suit in the case. The court accordingly 'charged the jury that although the bridge was built by the state, yet the defendant had laid its track thereon, and used it as the bed of its road, and had thereby adopted it as part of its track and roadway, and although the state built the bridge and the defendant neither built it nor had any control over it, such fact was wholly immaterial, and the defendant was bound to precisely the same liability with regard to any defects in the bridge as though it had built the bridge -originally to serve as a part of its railroad, and it was bound by the same rules which the law applies to every other common carrier of passengers with reference to the means it adopts as a part of its roadway and part of the appliances which it may have occasion to use in the transaction of its business as a common carrier; that if by any known test the carrier could ascertain that the thing adopted as part of the appliance of its roadbed or car was or was not fit for the puipose to which it was to be applied, if the carrier failed to apply such test, and as a result of that failure an accident happened to its passenger, and he was thereby injured, the carrier failed to perform its duty, and was liable for such injury.

I The court further charged that the undisputed evidence showed that a stirrup with a defective welding was placed upon the bridge, and that it might have been discovered had an effort been made so to do before it was put there, and as a result of such detect the stirrup gave way at the welding and the trough tipped and the iron fell upon the plaintiff, and applying the law as laid down by the genera] term, the learned trial judge said these undisputed facts showed necessarily that the defendant was liable, and so he left to the jury only the question of damages.

The defendant moved for a nonsuit at the close of plaintiff’s evidence, and renewed the motion at the close of its own evidence. The court denied the motion in each case, and the defendant duly ■excepted.

In refusing to nonsuit the plaintiff, and in directing the jury as he did upon the question of defendant’s liability, the learned judge erred.

We think the error consisted in applying to their full extent, and to the facts of this case, the well-known general rules as to the liability of common carriers for the absence of that extreme care and caution which the law exacts from them in relation to the condition both of their roadbed and of the appliances ernploved by them in operating their roads.

We do not think the defendant rested under any such extreme liability upon the undisputed facts in this case.

It may be assumed the defendant is a corporation organized under the general railroad act for the purpose of building a street railroad through certain streets in the city of Rochester. Under that act it acquired no right to cross the canal on any bridge it might build. It acquired no right to build any bridge, and although it might possibly have the power of eminent domain to acquire land for some purposes, it could acquire none in order to build a bridge over the canal. Further legislation for that purpose would have been necessary. And its organization under the general railroad act, for the purpose of a street railroad, required it to keep to the public streets or highways, and gave it no right to lay its tracks elsewhere. In the treatment of the question of supplying bridges over the canals, the legislature, at an early day, provided that bridges should be built by the town in which they should be situated, and that they should be maintained at the expense of such town, but that no bridge should be constructed across any canal without the permission in writing of one of the canal commissioners, under penalties as provided in the act. Chap. 202, Laws of 1820; 1 R S., in. p. 248, §§ 191, 192, 193.

In 1839, by chapter 207, the legislature directed the canal commissioners to construct and thereafter maintain at the public expense road and street bridges over the canal in all places where such bridges had been theretofore constructed, if, in their opinion, the public convenience required it. In 1854, by chapter 332, § 9, the legislature prohibited the building of any street or road bridge over any canal, except upon such streets or roads as were laid out, worked and used previous to the construction of the canals by which the streets were obstructed. And the legislature, by special enactment, provided for the construction of this partícula. I bridge. It would seem from this brief reference to legislative ac-| tian that the canal bridges while under the care, custody and control of the state, have always been substantially regarded as a part of the street which is obstructed by the canal.

In substance and effect the bridge mentioned in this case was nothing more than a continuation of the city street which it connected and, although it might have been necessary for the defendant to have obtained permission of the state authorities before laying its rails and running its cars over the bridge, yet we are of the opinion that in crossing such bridge it. did not thereby make it an appliance of its own to the extent stated in the charge of the court below. We think there is a great difference in the position occupied by this defendant in crossing this canal bridge from that taken by a steam railroad crossing a piece of water or a ravine by means of a bridge of its own building on its own land, and for the purpose of operating its own railroad along its own private roadway.

We think there is the same difference, although the steam railroad company uses the track of another road or the bridge of another company, which it in neither case owns or controls, but which it simply leases or otherwise legally obtains the right to use. The steam railroad company which owns its roadbed and builds and controls the bridge on its own property, is, without doubt, within the strict liability of the common carrier to its passengers. The same may be said of the compan3r which b3' contract obtains the right to use the track or the bridge of another road. In doing so, it makes the roadway or bridge, which it in some way obtains the right to use, its own, and is under the same liability by virtue of its own act as if it had itself built, equipped and operated the roadbed or bridge. Where, however, the space to be crossed is a canal belonging to the state, and it is necessary to cross it in order to carry out the purpose of the company to lay railroad tracks in the public streets of a city and the bridge forms, in substance, a continuation and a part of one of the public streets of the city, the mere use of such bridge by the company with the consent or license of the state for the one purpose of continuing its route along such public highway, does not render such bridge an appliance of the street railroad company. We think its liability while on the bridge is none other or different from its liability while traversing the rest of the public street. To negligently drive along the street so as to fall or precipitate the stage or car into an open hole in the street would render the person or company guilty of such negligence liable for the injury to a passenger. To drive upon a bridge which was manifestly unsafe or not strong enough to bear the proposed weight, might be negligence which the company would be responsible for if any injury happened therefrom to the passenger.

We do not criticise the rule or assume here to question it as to the extent of liability ordinarily attaching to a carrier of passengers, including the liability for a perfect roadbed and all proper appliances. We simply say that this case is not one in which to make the application of such extreme liability. We say the bridge was not such an appliance as is contemplated by the rule alluded to, and that the liability of the defendant was no greater while on the bridge than while pursuing its route along the public street in the city.

The defendant had no control over or voice in the plan to be adopted, or i'n the selection of the materials for the structure. It had no right of superintendence in the process of manufacture, nor of inspection of the thing manufactured. It was without power to change the method adopted to adjust these counterbalancing weights or to maintain the slightest control over the manner in which the structure was to be operated. The defendant had no right to itself build a bridge over this canal, and it was not occupying the position of exercising a choice between building a bridge of its own or using one furnished by the state. There was no choice about it. That bridge must be used or the canal could not be crossed.

Where a steam railroad has the right to build a bridge, and, instead of building, leases the right to cross the bridge of another, the reason for holding that such bridge is thereby adopted as its own, by the company using it, is obvious. It is a voluntary matter on the part of the company whether to build its own or to lease the bridge of another, and if it choose the latter mode of crossing the obstruction, it is but another way of obtaining a bridge of its own, and when it thus contracts for its use, it, of course, adopts it as its own structure. „

The position of a street railroad in attempting to carry on its business of running cars through the public streets of a city has nothing in common with that occupied by a steam railroad under the circumstances mentioned. And where the street railroad is confronted by one of the canals of the state over which it has no right to build a bridge, but which it is necessary to cross in order to carry out the purpose of its organization, the company may cross such bridge, with the permission of the state authorities, without thereby making it a part of its appliances, for a latent defect in which it must be held responsible if discoverable in the process of manufacture. The contract to carry safely does not and ought not extend that length.

Nor was the evidence in this case sufficient, in our judgment, to submit to the jury the question of negligence on the part of the defendant in driving on this bridge while the. weights were suspended in the manner described. The plan and method had received the approval of the state engineer and surveyor and the bridge had been built under the direction and supervision of another state officer, the superintendent of public works. It had been in position for over a year and subjected daily to the strain arising from the traffic over it of all sorts of vehicles, and so far as the evidence shows there had not been a doubt expressed or felt as to its entire safety, both of plan, material and workmanship. There was nothing to suggest to the general traveler or to the defendant the presence of any defective welding of any of the stirrups which supported the weights of iron and nothing to cause any action on its part in relation thereto, even if any action were possible. If a defect in the welding were dangerous and if any such defect might be discovered by proper inspection in the course of manufacture, it might justly be supposed by the defendant that all such precautions had been taken by the authorities of the state before the stirrups were placed in their position, and that the opening of the bridge for travel was an assurance that no discoverable or preventable defects existed.

Under these facts, we think, no case was made for the submission of any question of negligence to the jury.

The plaintiff should have been nonsuited and the judgment in her favor must, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur.

       Reversing 45 St. Rep., 724.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Louisa M. Rauenstein, Resp’t, v. The New York, Lackawanna & Western Railway Co., App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Railroad—No liability to abutters on cross street, for change of
    GRADE.
    Where a railroad has been lawfully constructed through the street of a ' city by authority of the public law and with the assent of the municipality. it is not a nuisance, and except to abutters invades no legal rights, and where it builds an embankment in a cross street to permit of unimpeded travel upon such cross street over the railroad, it is performing a duty imposed by the public law and prescribed by municipal ordinance, and comes under no responsibility to adjoining landowners.
    (Following Ottenot case, 119 N. Y., 603; 28 St. Bep., 483.)

      2. Same.
    In this case the -change oí grade in the cross street was made hy the defendant under legal compulsion, and individual interests are as much subordinate to the requirements of public interest in such a case as they would be if the city authorities had done the work themselves.
    (O’Bbien and Maynabd, JJ., dissent.)
    Ap-peal from judgment of the superior court of Buffalo, general term, reversing judgment in favor of defendant, entered on verdict directed by the coart.
    This action was brought to recover damages of the defendant for injuries alleged to have been sustained by the elevation of a part of the roadway of Commercial street, in the city of Buffalo, in front of her premises, which she alleges to be an unlawful encroachment upon the street, an obstruction to her lawful rights in it and a nuisance. The facts are that the defendant railroad was laid through Water street, and, where it intersected Commercial street, was constructed upon an embankment about five feet and nine inches above the former grade of Water street, made necessary in ' order to cross Commercial slip.
    In order to permit of travel upon Commercial street over the railroad at this intersection of the streets, it was necessary to raise the grade of Commercial street on either side of Water street, and this elevation of the grade of the street extended in front of and nearly the whole length of the street line of the plaintiff’s premises. The embankment was within about a foot of plaintiff’s sidewalk, and was some twenty feet in width. The plaintiff did not abut upon Water street, and her title to her lands was bounded •upon Commercial street by the line of the street. As an abutting owner upon Commercial street, she bases the right to recover damages for the obstruction of the roadway in front of her premises practically upon the ground that if the construction by defendant of its embankment in Water street was illegal as to abutting owners there, the illegality of its act extended to the grading up of Commercial street, and in such degree as to subject it to liability to injured property owners in that street. An appeal from judgments recovered by her in the superior court of Buffalo was heard by this court in its second division, 120 NT. Y, 661; 81 St. Rep., 911, and the judgments were reversed expressly upon the authority of our decision in the case of Ottenot against this same company, and a new trial was ordered. Upon the new trial the jury rendered a verdict for the defendant by the direction of the trial judge. The plaintiff appealing to the general term of that court, the judgment was reversed, and it now appeals to this court from the general term order of reversal.

      John G. Milburn, for app’lt; Geo. W. Cothran, for resp’t.

       Reversing 47 St. Rep., 139.

   Gray, J.

The only difference between the facts of this case and that of the Ottenot case, 119 N. Y., 603, but fully reported in 28 St. Rep., 483, is that Ottenot’s premises were on the opposite side of Commercial street, and the embankment in the street did not extend so as to entirely cover his side of the street; a fact, however, which can have no bearing upon the legal aspect of tlie question presented. Though the members of this court did not all concur with the opinion which was delivered in the Ottenot case, they concurred in the result reached, on the ground of there being another remedy, as also because of error in the admission of evidence as to damages.

That other remedy was referred to in the opinion as being given by a certain provision of the city charter, providing for compensation to abutting owners under certain conditions, where damaged by alterations in the grade of a street. Therefore, while the members of the court failed to concur ■with the opinion in the general discussion of the question of the defendant's liability to plaintiff, all did agree that the defendant was not liable in damages, inasmuch as the constructiou in Commercial street was a change in the grade of the street, for any injury from which a remedy was given under the provisions of the city’s charter. The position, then, is this: the concurrence of views in the Ottenot case being that there was a change in grade of the street, and, hence, no liability on the part of the company, can we now sustain this reversal by the general term without overruling the Ottenot decision, and, likewise, the decision of the second division of this court, which held the present case disposed of by the Ottenot case ? If we are prepared to do this, we must still go further, and hold that the rule laid down in Conklin v. N. Y., O. & W. R. R. Co., 102 N. Y., 107; 1 St. Rrp., 677, is no longer authoritative.

The general term opinion holds what seems to me a rather strange view of our recent decision in the case of Reining against this same defendant, 128 N. Y., 157; 40 St. Rep., 401. It was supposed by that court that its effect was to so far modify previous views with respect to the legality of the structures in Water and Commercial streets, as to leave the general question open to further examination, notwithstanding the Ottenot case. Proceeding, thereupon, to consider the decisions in the Conklin case, supra, and the Uline case, 101 N. Y., 98, a distinction was deemed to exist between them and the Buffalo cases; in that the railroad, in the former cases, was a lawful structure, whereas, in these cases, on the strength of the view taken of the opinion in the Reining case, the construction in Water street was such an illegal appropriation of the street and so unauthorized an act as to constitute the structure a nuisance, not only as to property owners upon the street, but as to those upon Commercial street, who were injuriously affected by the raising of the grade of the street to meet the railroad grade. The Reining case has been quite misapprehended by the court below. That case is no more controlling upon the disposition of the present one than was the Ottenot case upon the Reining case; as was remarked by Judge Andrews, who wrote in the Reining case. The plaintiffs in that case were property owners upon Water street, and their right to recover compensation was placed upon the ground that the railroad company had practically excluded them from the use of the street, by the presence of the railroad upon the embankment, and had thus invaded a legal right belonging to the abutting property owner. The reasoning of the decision was that, while it was quite probable that the general interests of Buffalo and of the public were promoted by the appropriation of the street, it by no means followed that a lot owner, whose property is injured, should bear the loss for the public benefit. The learned judge said that the public cannot, “justify such an appropriation of a street by a municipality in aid of a railroad enterprise; ” and that “ the legislature cannot legally authorize structures for railroad purposes to be ■erected (in streets) * * * which practically exclude the abutting owners, * * * without compensating them for the injury suffered.” Again, referring to the power conferred in the city charter with respect ta ■ streets, he held that the city “ cannot, under guise of exercising this power, appropriate a part of a street to the exclusive, or' practically to the exclusive, use of a railroad company, or so as ■to cut off abutting owners, * * * without making compensation, etc.”

The opinion pointed out clearly the distinction between the case of a change of grade in the street, merely, and the case then at bar, where the object of the elevation of' an embankment in the street was to subserve the railroad use, which was practically, if not wholly, exclusive. It was because of that distinction that I concurred with Judge Andrews in his opinion; conceiving that a property owner not abutting upon Water street had -no right to complain of a change of the grade in his side street, which a new and lawfully authorized use of Water street had rendered necessary in the interests of the general public. The Reining case has not modified any existing rule of law, as laid down in the Uline, Conklin and Ottenot cases. It did not hold that the embankment in Water street for the railroad accommodation was illegal, or that it constituted an invasion of the rights of any one; save as to those of property owners abutting on Water street. It distinctly recognized the existence of the railroad and of this embankment as being under lawful authority; but for injuries occasioned to the property rights, within the principle of the decision in" the Story case, an abutting owner could not legally be deprived of his right to compensation by the legislature.

As the Reining case in no sense overruled the Ottenot case, the question is to-day the same as it was when we had decided the Ottenot case, and I do not believe we could, with any appearance of consistency, sustain this plaintiff’s right to recover compensation from the railroad company, when we denied it in the other case. Nor do I think we can overlook the fact that the Conklin case is a controlling authority upon the case before us. The opinion in the Conklin case was concurred in by all the members of the court. There the railroad company, in crossing a highway, constructed its road through a deep cutting, over which it built a^ bridge, to which, by embankments on either side of the cutting, the highway was graded up, so as to permit the continuance of the public travel as before.

The plaintiff’s property abutted on one of the embankments; and he also owned the fee to the center of the highway so changed, but his right to compensation was, nevertheless, denied; the grounds for the decision, in substance, being that a change of grade invades no private right, and, whatever the inconvenience to the abutting owner, it takes from him no property right for which he has not been compensated. Judge Finch, who delivered the opinion, remarked that if the highway “ became such by dedication, compensation for the easement was expressly waived. If taken by eminent domain, the compensation paid covered all the damages sustained, among which were necessarily embraced such as might flow from a change of grade required for the public use or convenience.” “ The right of the legislature,” he said, “topermit a railroad company to cross a public highway, and either upon the same or a different grade, is, of course, conceded. In the latter case a corresponding change in the grade of the highway becomes necessary.” The opinion proceeds to hold that the duty of making that change being imposed by statute upon the railroad company, instead of being left to the commissioners of highways, the company, in the work of restoration, stands in the place of the highway commissioners, without any responsibility to abutters and having all the official rights of highway commissioners. The logical sequence of the opinion of the court in the Conklin case is obviously to exempt a railroad company from liability for the consequences of a change of grade in city streets which is rendered necessary where intersected by the railroad structure, however great may be the inconvenience resulting to abutting property owners. i The source of the authority of the railroad company in the Conklin case was the same as that under which the company has acted in this case. In either case, under the provisions of the general railroad act, the power is conferred to construct the railroad across any street or highway “ which the route of its road shall intersect, or touch; but the company shall restore the street or highway, etc., thus intersected, or touched, to its former state,, or to such state as not unnecessarily to have impaired its usefulness."

In the case of highways, the consent of the commissioners, or an order of the supreme court, is required, while in cities, the assent of the municipal authorities is to be had, and, in the present case, the giving of such assent was provided for in the city charter. It is thus evident that the source of the power to change the grade of the street, to permit of carrying it over the railroad crossing, is in the general or public law, which creates a duty in that respect which is transferred from the local authorities to the shoulders of the railroad company; in the performance of which it stands in the place of the local authorities, with all their immunity from responsibility for any consequential damages, not attributable, of course, to negligence in the manner of performance. If, however,- in performing this work of restoring the intersected street to its former state of public usefulness, the company is invested with the immunity conferred upon the local authorities, how can the abutting owner have a legal cause of action for an alleged injury resulting from the change in grade? In reference to the restriction upon the absolute nature of the right of abutting owners, in the case of a municipal control of streets in the public interest, even when privileges and benefits previously enjoyed from the original condition of the streets are curtailed or impaired by the changes, Judge Andrews cites, Reining case, supra, “ the cases of change of grade ” as furnishing “ opposite illustrations”. In Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98, where the street and sidewalk in front of the plaintiff’s premises were raised by the company so as to conform the grade of the street to the grade of the railroad, it was said in the opinion: “So much it (the defendant) was bound by law to do under the general railroad act, it (the street) was not, in front of plaintiff’s premises, by the act of the defendant, devoted to anything but street purposes, and as the city could have raised the grade of the street without liability to abutting owners, so it could authorize the defendant to do so without such liability.”

It is apparent that the general term below, in the discussion as to the lawfulness of the defendant’s railroad construction in Water street, failed to consider the' distinction between a case where a statute confers authority upon a corporation to take the property of individuals for some public purpose without making a provision for compensation, and a case where the legislature, exr ercising an undoubted right, subjects the public property to some new public use, by some extraordinary features, of which, however, natural rights, or easements appurtenant to abutting property owners and constituting property rights, are interfered with, and consequential injuries ensue. In the first case, the statute would be unconstitutional and void, and could confer no rights upon the legislative grantee, while in the latter case there could be no question as to the constitutionality of the act, and as to the legality of an occupation in pursuance of the act by the grantee; but for the damages which could be proved as directly consequential to the use, in its peculiar features, an injured abutting landowner could recover. That, I think, was the theory of the decision of the Story case, 90 N. Y., 122.

The two guiding principles to be deduced from the authorities are, that the defendant, being lawfully in Water street, by authority of the public law, and with the assent of the municipality, was not a nuisance, and, except as to abutters, invaded no legal rights; and that, in building the embankment in Commercial street, to permit of unimpeded travel upon that street over the railroad in Water street, the defendant was performing a duty imposed by the public law, and prescribed by municipal ordinance, and hence could come under no responsibility to adjoining landowners. In this connection, I may say that for such consequential damages as are sought to be recovered here from a railroad company, which is lawfully in the occupation and use of a street, but which, incidentally, is the occasion of injury to property owners in an adjoining street, by reason of its performance of the statutory duty to conform its grade to the new use, the-legislature might very properly, under limitations, grant a remedy. Without such remedial legislation, however, the case is one of damnum absque injuria. ¡Nothing in the Reining ease is in contradiction of the views expressed, and in support of them we have much authority, running back from the Uline case, supra, to that of Radcliff’s Executors v. Mayor, etc., of Brooklyn, 4 N. Y., 195.

This construction in Commercial street was a change of grade made by the defendant under legal compulsion, and individual interests are as much subordinate to the requirements of public interests in such a case, as, concededly, they would be if, as matter of fact, the city authorities had done the work themselves. As matter of law, its performance by the defendant was a performance by a constituted public authority. In the opinion in the Reining case, Judge Andrews defined the line of the limitation to public powers in the control over city streets to be reached when they invaded an abutter’s rights. But, outside of that line, “provided that the change be made under lawful authority,” the owner “has no legal redress for any injury to his property, however serious, caused by a change of grade.”

Bronson, Ch. J., in Radcliff’s Executors v. Mayor, etc., of Brooklyn, supra, in illustrating the extent to which acts may go without rendering persons answerable for the consequences to others, speaks of those cases “ which hold that persons acting under an authority conferred by the legislature to grade, level and improve streets and highways, if they exercise proper care and skill, are not answerable for the consequential damages which may be sustained by those who own lands bounded by the street or highway. And this is so” (he adds) “ whether the damage results from cutting down or raising the street, and although the grade of the street had been before established, and the adjoining landowners had 1 erected buildings with reference to such grade. The principle * seems applicable to this case, where the defendant, acting under the authority of the legislature, has changed the grade of Commercial street. I am quite unable to see how we can sustain the order appealed from, whether we consider what was decided with respect to the question of the defendant’s liability in the Ottenot case, or whether we consider the rule laid down in the Conklin case, and hr prior decisions.

I think the order of the general term appealed from should be reversed, and the judgment of nonsuit should be affirmed, with costs in both courts.

All concur, except O’Brien and Maynard, JJ., dissenting, and Andrews, Ch. J., not voting.


author: Maynard, J.

text:
    The People, App’lts, v. Thomas F. Stark, Resp’t.

      (Court of Appeals,

      Filed January 17, 1893.)

    Libel—Indictment.
    An indictment for libel which charges in substance that the defendant at a time and place designated wrongfully, unlawfully and maliciously published of one S. a false, scandalous and malicious libel, in the “ words and tenor following,” comprising a verbatim statement of the defamatory matter published, but which contains no averment as to the manner of publication, whether by writing, printing qr posting, or otherwise than by mere speech, or of the person or persons to whom it was addressed, or by

      whom it was seen or read; or that the names of such persons were unknown to the grand jurors, is fatally defective in not sufficiently describing the offense charged to have been committed.
    (Eakl, Pbckham and Geay, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, fifth department, reversing j ndgment of the court of sessions of Wayne county, convicting defendant of libel, and dismissing indictment and discharging defendant

      J. W. Dunwell, for app’lts; W. Henry Davis, for resp’t. .

       Affirming 35 St. Rep., 150.

   Maynard, J.

The judgment of conviction in thiscase has been reversed, the indictment dismissed, and the defendant discharged upon the ground that the indictment, which was for libel, was fatally defective in not sufficiently describing the offense charged to have been committed. The particular defect pointed out consists in an omission to state- the man(ner in which the alleged publication was piade. The pleading charges in substance that the defendant at a time and place designated wrongfully, unlawfully and maliciously published of and concerning one Asa T. Soule a false, scandalous and malicious libel in the “ words and tenor following,” comprising a verbatim statement of the defamatory matter published. There is no averment as to the manner of publication, whether by writing, printing or posting or otherwise than by mere speech, or of the person or persons to whom it was addressed, or by whom it was seen or read ; or that the names of such persons were unknown to the grand jurors. Tested even by the liberal rule of the Criminal Code/1 do not think such an indictment contains a plain and concise statement of the act constituting the crime. So far as the manner of publication is concerned it does not allege any fact, but a mere conclusion of law. It was held by this court in People v. Dumar, 106 N. Y., 502; 11 St. Rep., 19, that the indictment must both charge the crime and state the act constituting it, and the principal reason for requiring a specific statement of the act is the right which the accused has to be informed of the precise accusation which he is required to defend.

In commenting upon the change'wrought by the new system of pleading in other respects, Judge Danforth, at p. 512, says, “Under either system an offense consists of certain acts done or omitted under certain circumstances, and under neither is any indictment sufficient which does not accurately and clearly allege all- the ingredients of which the offense is composed, so as to bring the accused within the true meaning and intent of- the statute defining the offense.”

The particular act proven in this case was the sending by the -defendant through the mail of a newspaper, in a wrapper, addressed to one Ammon S. Farnum at Savannah, Wayne Co. The proof of this criminal act must have been before the grand jury or the indictment could not have been found, and there was therefore no obstacle in the way of the pleader, rendering it difficult or embarrassing to state the essential facts which constituted the crime. Such a rule of pleading is always practicable and easy of observance. If the libel complained of is a newspaper publication, it would be sufficient to say that it was published "in a designated paper having a circulation in the county in which the indictment is found. But, under the precedent established in this case, it would be sufficient to state that the libel had been published in the county named, and follow it with proof of publication in some metropolitan daily, copies of which were taken within the county, and the defendant would be ignorant of the specific acts which he must disprove to establish his innocence until confronted with the People’s witnesses at the trial. The. charge contained in this indictment would have been equally well proven had it been shown that the defendant procured its publication in a Rochester journal which circulated in the town of Savannah, or in any other newspaper having a like circulation, or wrote a letter containing the' offensive article to some resident of that town, or caused it to be posted in a conspicuous place therein, or in many other ways which might readily be suggested. An indictment which exposes the defendant to attack from so many unexpected quarters fails to adequately fulfill the office which it was intended to perform as a pleading in a complete system of criminal procedure.

I, therefore, think that the General Term was right in the conclusion which it reached, and that its order should be in all respects affirmed.

All concur, except Earl, Peckham and Gray, JJ., dissenting.


text:
    The New York, Lake Erie & Western R. R. Co., App’lt, v. The National Steamship Co. (Limited), Resp’t.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Carriers—When liable'to connecting lines for freight charges.
    Plaintiff was a member of an association of land carriers engaged in the joint undertaking with the defendant, an ocean carrier, of transporting cotton from Texas to Liverpool upon through bills of lading. The freight was to be divided between the land carriers and defendant in certain proportions, and by an agreement between the land carriers each one, on the receipt of goods was to pay all accrued freight charges to the other, the entire amount to be finally collected of the consignee. A. consignment of 266 bales of cotton was delivered by plaintiff to defendant upon the pier at New York, but before the lading of the vessel was burned. Held, that possession on shipboard was a condition precedent to any liability of the ocean carrier for the land charges, and that plaintiff could not recover.
    2. Same—Lien of carrier.
    As the contract for shipment was entire, each carrier had a lien upon the goods for his unpaid freight until they were delivered to the consignee, and the possession of any carrier engaged in the joint enterprise would be deemed the possession of any other carrier whose proportion of the freight charges had not been paid so far as might be required to support the lien therefor.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon verdict directed by the court.

      George Bethune Adams, for app’lt; John Chetwood, for resp’t.,

       Affirming 43 St. Rep., 361.

   Maynard, J.

In November, 1882, the plaintiff was a member of a pool or association of land carriers, which was engaged with the defendant, an ocean carrier, in the joint undertaking of transporting cotton from Gainesville, Texas, to Liverpool, England. The freight charge to the shipper or consignee was entire, but by an agreement among the carriers it was divided between the association and the defendant in the ratio of twenty-five to seven. The respective proportions which the several members of the association were entitled to receive for the land carriage was also fixed by an agreement between them. It is assumed that the shippers were not liable for the freight charges, but they were to be collected from the consignee upon delivery of the goods at the port of destination. The agreement for shipment consisted of a through bill of lading,, which, in terms, so required, and by the-rules of commercial law the carriers had a lien upon the property for the freight until it was paid, and in default of payment they could withhold delivery, and sell the cotton for the satisfaction of their charges.

The carriers also had an insurable interest in the goods to the extent of their lien, and they thus had the means of complete-indemnity against loss, in case of the insolvency of the consignee or the destruction of the property in transitu. The particular consignment involved in this action urns a shipment of two hundred and sixty-six bales of cotton on November 15, 1882, which was delivered to the defendant January 22, 1883, upon the pier at New York, where its next steamer for Liverpool was to load. Before the lading of the vessel, and while the cotton was upon the pier, it was burned, presumably without the fault of either of the parties to this action. By an agreement between the land carriers, each company upon receipt of the goods, or at the next settlement day thereafter, paid to the company from which the goods were received its proportion of the freight charges and the amount advanced by it to the company from which it had received the goods. The plaintiff was the last carrier by land, which received thegoods and transported them to New York and delivered them upon the pier for carriage by the defendant. It had, therefore, paid or earned the land carrier’s proportion of the entire freight, which amounted to $1,647, and it claims that immediately upon the delivery of the cotton upon the pier at New York for shipment by the defendant, the latter became bound, as upon a contract obligation, to pay that sum to it. The only written agreement to which the parties assented is contained in the through bill of lading and the special bills attached, and we fail to find in them any provision from which any such obligation can be implied. On the contrary they inferentially refute the existence of a liability of this kind. By the terms of the through bill of lading the entire freight was to be collected by the defendant upon the completion of the carriage of the goods and their delivery to the consignee at Liverpool. Until that had been accomplished the written contract imported no duty either expressed or implied on the part of the defendant to reimburse the land carriers for their share of the cost of transportation. It also appears from the special bill of lading given by the defendant to the plaintiff that it expressly stipulated for exemption from liability for all damage, loss or injury arising from fire before loading in the ship in terms so comprehensive as to include not only the owner, but every person like the plaintiff who had a special interest in the property by way of lien for services rendered.

The plaintiff in fact concedes that there is nothing in the bills of lading which imposes the liability upon the defendant which it is attempting to enforce, but it insists that there was a prevailing custom or usage in this class of business of such long standing and so generally recognized that it implied an agreement on the part of each carrier immediately upon the receipt of the goods to assume a liability to pay all the charges previously earned or paid by the company from which they were received. All the evidence given upon the trial related to this usage, and the only exception reviewable upon this appeal pertains to the refusal of the trial judge to submit the "question to the jury whether the evidence did not establish a contract on the part of the defendant, based upon this usage, to pay plaintiff for the advance charges and freight earned upon the delivery of the goods by the plaintiff to the defendant. There was a substantial agreement in the testimony of all the witnesses upon this subject and we do not think that it was properly susceptible of any conflicting inferences. We fail to find in it any proof of a usage or agreement to become liable for the accrued freight charges upon delivery of the goods upon the pier. Whatever may be the custom in this respect between land carriers, there is an entire unanimity in the statements of all the witnesses upon both sides to the effect that the steamship companies never engaged to become liable for the land charges until the goods had been laden upon the vessel, at which time it was their custom to ascertain the quantity and make out the bill for the freight and insure the goods for the voyage. Insurance was never effected by the steamship company while the goods were lying upon the pier. This usage was so inflexible that if the steamship company could not carry the entire consignment by one vessel and the goods were divided and carried by different vessels sailing at different times, separate bills were made for each part as the vessel carrying it sailed, and payment was made for each separately and in no case until after it was upon shipboard. It appears from the evidence of plaintiff’s general freight agent that when these through bills of lading were first adopted the shipments were taken immediately from the plaintiff’s barges and put on the vessels, and if there was delay in shipment the property lay upon the plaintiff’s docks until it could be loaded upon shipboard, and there could then be no occasion for any dispute as to liability for advance charges. But as the volume of the business increased, additional storage capacity was required, and the goods would be transferred to the steamship company’s piers to await the company’s convenience for shipment. Their obligation would seem to have been to take the goods by the first vessel not otherwise engaged, and the storage upon their piers 'Was evidently in the first instance permitted for the convenience of the railroad company. It also appears by the evidence of the same witness that the steamship company originally charged a commission for advancing the amount of the hack charges before the collection of the freight at Liverpool; and it was finally agreed that the rate of exchange should be fixed at 4.80, which would afford the steamship company a margin in lieu of the commissions and of the expense of insuring the amount of the back charges during the voyage.

It is, therefore, apparent that possession on shipboard was always regarded as a condition precedent to the existence of any liability on the part of the ocean carrier for the land charges, and the case is destitute of any competent proof to establish an agreement or usage which would obligate the steamship company to pay while the goods were still at the pier. Every witness disclaims knowledge of any such custom, and, in the long course of business proven, extending over a period of twenty years and upwards, not a single instance is shown where payment has been demanded or expected before the goods were put upon the vessel, or where payment has been made unless they were actually on board the ship. It is claimed by plaintiff's counsel that the Inman line of steamers paid the advance charges upon some bales of cotton lying upon their pier which were destroyed by fire at the same time with the cotton upon defendant’s pier, but the evidence does not sustain the claim. The cotton upon the Inman pier was only damaged, and not destroyed. A survey was called for and the cotton sold ftir the account of whom it might concern and some $400 realized. The insurance company which had paid the loss to the owners, ascertaining that this money was in the hands of the agents of the In-man line, made claim to it and it was paid over to them without any deduction for the freight charges, which amounted to $62. Subsequently the railroad company notified the Inman line that the back charges had not been paid, and the Inman company notified the insurance company, which refunded the amount and it was paid over to the railroad company. The transaction can not be construed as a recognition by the steamship company of a liability to pay the back charges while the goods were lying upon the pier, but rather to the contrary. It seemed to indicate that it was the understanding of all the parties that the charges were a lien upon the goods which must first be paid out of the proceeds of their sale, and that the lien of the railroad company was not lost by the delivery of the goods to the steamship company upon the pier, but continued until the charges had been actually paid. As the contract for shipment was entire, each carrier had a lien upon the goods for his unpaid freight until they were delivered to the consignée, and the possession of any carrier engaged in the joint enterprise would be deemed the possession of any other carrier whose proportion of the freight charges had not been paid so-far as might be required to support the lien therefor.

We think the case was properly disposed of at the circuit and that the judgment and order should be affirmed, with costs.

All concur.


text:
    James H. Parker, Resp’t, v. Manuel Marco, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Service—Privilege from.
    The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence in an action to which he is a party or in which he is to be sworn as a witness extends to a nonresident defendant, who, at the instance of the plaintiff, comes to this state to attend the taking of the testimony before a notary public of plaintiff and his witnesses, to be used at the trial of the action in the federal courts in defendant’s state, and although such examination is abandoned by plaintiff’s attorney the service upon defendant while returning of a summons in an action brought by plaintiff in the supreme court of this state for the same cause is void.
    (Gray, J., dissents.)
    Appeal from judgment of the supreme court, general term, first department, reversing order setting aside service of summons. John B. Abney, for app’lt; T. Henry Dewey, for resp’t.

       Reversing 41 St. Rep., 302.

   Maynard, J.

The defendant is a resident of South Carolina and an action had been there brought against him in the federal circuit court by the plaintiff, who is a resident of this state. On April 6, J892, the defendant came to the city of Mew York at the instance of the plaintiff to attend an examination of' the plaintiff and his witnesses before a notary public, which by the agreement of the counsel for the respective parties had been set down for that date. The plaintiff procured the defendant’s assent to the examination upon the statement that he desired to be in readiness to try the cause at the ensuing April circuit, to be held at the city of Charleston. When the time for taking the testimony arrived the defendant was informed by plaintiff’s counsel that he had abandoned his intention to take the evidence as proposed, for the reason that on account of sickness in his, the counsel’s family, the plaintiff would not be prepared to go to trial at the April circuit, and he expected to be able to produce his witnesses in court when the trial should take place at a subsequent term. It was then late in the afternoon, and. the defendant returned to his hotel and remained over night, and the next morning started for his home in South Carolina. He was intercepted at the ferry by a process server, who served him with a summons in an action brought by the plaintiff in the supreme court of this state for the same cause of action at issue in the federal court in South Carolina. The defendant had no business in Mew York except that which related to the proposed examination. The defendant has appealed from an order of the general term, reversing an order of the special term, which set aside the service of the summons upon the ground that, when served, he was privileged from service.

Under § 863 of the Revised Statutes of the United States the plaintiff had an absolute right to take the testimony of his witnesses in this state to be used upon the trial of the action in South Carolina upon giving reasonable notice to the defendant The compulsory character of the proceeding was not affected by the waiver of notice and the fixing of the time by the agreement of parties. Plimpton v. Winslow, 9 Fed. Rep., 365. The same section provides that a person may be required to appear and testify before the notary in the same manner as witnesses in open court, and § 915 of our own Code authorizes any state judge to issue a subpoena to compel the attendance of a witness in such a case. In the trial of the action the notary thus becomes the arm of the court, and, as was held in In re Rindskopf 24 Fed. Rep., 542, represents the court pro hac vice.

The privilege of a suitor or witness to be exempt from service of process while without the jurisdiction of his residence for the purpose of attending court in an action to which he is a party or J in which he is to be sworn as a witness is a very ancient one. Year Book, 13 Hen. IV, I. B. Viner’s Abr. “Privilege.”

It has always been held to extend to every proceeding of a judicial nature taken in or emanating from a duly constituted tribunal which directly relates to the trial of the issues involved. It is not simply a personal privilege, but it is also the privilege of the court, and is deemed necessary for the maintenance of its authority and dignity and in order to promote the due and efficient administration of justice. Persons. Grier, 66 N. Y, 124; Matthews v. Tufts, 87 id., 568. At common law a writ of privilege or protection would be granted to the party or witness by the court ■ in which the action was pending, which would be respected by all other courts. We cannot find that the power to issue such a wrrit has been abrogated by legislation, and it doubtless exists, and the writ may still be granted by courts possessing a common law jurisdiction ; but while the granting of the writ is proper, it is not necessary for the enjoyment of the privilege, and the only office which it can perform is to afford “ convenient and authentic notice to those about to do what would be a violation of the privilege, and to set it forth and command due respect to it.” Bridges v. Sheldon, 7 Fed. Rep., 44. The tendency has been not to restrict but to enlarge the right of privilege so as to afford full protection to parties and witnesses from all forms of civil process during their attendance at court and for a reasonable time in going and returning. Larned v. Griffin, 12 Fed. Rep., 592.

Hearings before arbitrators, legislative committees, registers and commissioners in bankruptcy, and examiners and commissioners to take depositions, have all been declared to be embraced within the scope of its application. Bacon’s Abr. “ Privilege;” Sandford v. Chase, 3 Cow., 381; Matthews v. Tufts, supra; Hollender v. Hall, 18 Civ. Pro., 394; 19 id., 292; Thorp v. Adams, Id. 351; Bridges v. Sheldon; Plimpton v. Winslow, and Lamed v. Griffin, supra. It has even been extended to a suitor returning from an appointment with his solicitor for the purpose of inspecting a paper in his adversary’s possession in preparation for an examination before a master, Sidgier v. Birch, 9 Ves., 69, and while attending at the registrar’s office with his solicitor to settle the terms of a decree, Newton v. Askew, 6 Hare, 319; and while attending from another statp to hear an argument in his own casein

the court of appeals. Vincent v. Watson, 1 Rich. L., 197. No good reason can be perceived why the privilege should not be extended to a party appearing upon the examination of his adversary’s witnesses, where the testimony is taken pursuant to the authority of law, and can be read upon the trial with the same force and effect as if it had been taken in open court. It is a proceeding in the cause which materially affects his rights, and the necessity for his attendance is quite as urgent as it would be if the examination was had at the trial. But we do not think that the question of the necessity of his presence is material. It is the right of the party, as well as his privilege, to be present whenever evidence is to be taken in the action which may be used for the purpose of affecting its final determination. It is essentially a part of the trial, and should be so regarded so far as it may be necessary for the protection of the suitor. There have been many analogous cases in the Federal courts where the right to the privilege has been upheld. In Bridges v. Sheldon, supra, the action was pending in the U. S. circuit for Vermont. A reference had been ordered to a master to take and state an account. The master, on motion of the plaintiff, had made an order for the taking of a deposition before a commissioner in the state of Iowa. The defendant, while attending before the commissioner in Iowa, was served with process in a suit brought by the plaintiff for the same cause of action as in the Federal court. Judge Wheeler, in very strong terms, condemned the procedure and held that the defendant was absolutely privileged from service, and that the conduct of the plaintiff in causing such service to be made was a contempt of court, and could be punished as such. It seems that in such a case the party has a two-fold remedy. He may move in the court whose privilege has been violated to punish the party in that court who has been guilty of such violation, or he may move in the court out of which the process has been improperly issued to vacate it, and the motion will be granted.

In Plimpton v. Winslow, supra, the suit was pending in the United States circuit for Massachusetts. By agreement of counsel testimony was taken before a special examiner in New York city, and while defendant was attending before the examiner he was sued by the plaintiff in the United States circuit for New York. Judge Blatchford set aside the service, saying: “ It is very clear that the motion must be granted. The defendant attended as a party before the examiner. The regularity of the examination was recognized by the attendance of the plaintiff. The defendant had a right to attend upon it in person, whether he was to be himself examined as a witness before Mr. Thompson or not, and he had a right to be protected, while attending upon it, from the service of the papers which were served in this suit. He attended in good faith. The privilege violated was a privilege of the Massachusetts court, and one to be liberally construed for the due administration of justice.”

In Larned v. Griffin, supra, the defendant was in Massachusetts attending upon the taking of a desposition under a commission issued out of the superior court of Cook county, Illinois, and was arrested upon civil process in an action brought in a state court of Massachusetts, which was afterwards removed into the United States circuit court. Judge Colt sustained a plea in abatement on the ground that the defendant was exempt from process. In Hollender v. Hall, supra, the witness was attending, pursuant to a stipulation, before a notary public, to have his deposition taken in an action pending in the United States district court for the southern district of New York, and the special term set aside the service of process upon him, and its decision was affirmed by the general term of the first department. A distinction is sought to be made between that case and the one at bar, because there the court in which the action was pending existed within the J limits of this state, while here it is a court sitting in another state. There does not appear to be any sound principle upon which such discrimination can rest. A federal court exercising its jurisdiction in another state has the same privileges and can afford to its suitors the same immunities as a like court sitting in this state. Both exist by virtue of the federal constitution and laws, which are supreme everywhere, and when taking testimony out of court in this state both are proceeding under the same act of the congress. A party who is brought here in such a proceeding is, we think, entitled to the same protection without regard' to the local jurisdiction of the court in which the action is pending.

It may be assumed that the plaintiff acted in entire good faith, and that his procedure was not a device to secure the presence of the defendant within the territorial jurisdiction of the courts of this state. In the view we take of the privileges of the defendant, the plaintiff’s motive is of no importance.

The order of the general term must be reversed, and the order of the special term affirmed, with costs.

All concur, except (Tray, J., dissenting.


text:
    The People, Resp’ts, v. Nathan I. Bennett, Impl’d, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Recognizance—Fobeeiture—Vacation oe.
    Where the principal makes default and his non-appearance is entered in the minutes, the recognizance becomes ipso facto forfeited. No further or formal order is necessary to fix the liability of the surety. The subsequent surrender of the principal does not of itself work an exoneration. If the record shows that a forfeiture has been incurred, the court has the power, upon the application of the district attorney, to cause such an order to be entered at any time, and when so entered, a certified copy with the recognizance may be filed with the county clerk, and the judgment perfected.
    Appeal from judgment of the New York common pleas, general term, denying application to vacate judgment entered on a forfeited recognizance.

      George Bell, for app’lt; Henry B. B. Stapler, Asst. Dist. Atty., for resp’ts.

       Affirming 46 St. Rep., 964.

   Maynard, J.

Under the provisions of the Criminal Code, §§ 593-595 and of the New York City Consolidation Act, § 1480, judgment was summarily entered against the appellant, April 1, 1892, in the clerk’s office of the county of New York, upon his forfeited recognizance in the general sessions as bail for the defendant in an indictment for grand larceny.

The indictment was found March 8th, and on March 19th the appellant was notified that his principal must be produced for trial on the 2'lst; on which day he was duly called and failed to appear, and the following entry was then made in the minutes of the court under the title of the criminal action.

“ On indictment; grand larceny in the first degree. (Filed March 8, 1892.) The defendant not appearing, and Nathan J. Bennett, his surety, not bringing him forth to answer to this indictment pursuant to the conditions of their recognizance, on motion of the district attorney, it is ordered by the court, that the said recognizance, together with a certified copy of this order, be filed in the office of the clerk of the city and county of New York, and that judgment be entered thereon according to law against the said Gfus Johnson, the defendant above named, and the said Nathan L Bennett, his surety, for the several sums set forth in said recognizance.

“ On motion of the district attorney, ordered, by the court, that the defendant stand committed to the custody of the warden of the city prison, until thence delivered by due course of law.”

The principal witness for the People was a non-resident of the city, and was then confined in the house of detention to secure his presence at the trial. When it became known that the defendant in the indictment had made default, this witness sued out a writ of habeas corpiis, and procured his discharge from custody on March 28th. The term of the court at which the principal failed to appear expired March 31st April 1st the appellant surrendered his principal in open court, and he was thereupon committed to the city prison, from which he was afterwards discharged upon his own recognizance on account of the inability of the People to procure the attendance of the complainant. No order was entered at any time remitting the forfeiture or in exoneration of the bail; but after the surrender of the principal and his commitment, an order was entered on April 1st, entitled in the action, containing the same recitals as the entry in the minutes of March 21st, and the further statement that “ on motion of the district attorney it is ordered by this court that the said recognizance be and the same hereby is forfeited.” There was also the same direction as in the minutes in regard to the filing of the recognizance and of a copy of the order and the entry of judgment thereon. It may be assumed that it was upon the filing of a copy of this order with the recognizance*that the judgment was entered. The surety made a motion at the general term of the common pleas for an order vacating the judgment and remitting the forfeiture of the recognizance, which was denied, and an appeal taken to this court.

The sole question to be determined is whether the clerk had jurisdiction, to enter the judgment, and so far as there may be any conflict in the statements contained in the papers read upon the motion, the affidavits and papers filed by the People must be taken as true. The principal ground urged for a reversal of the ■order is that the recognizance was not forfeited until the entry of the order of the general sessions on April 1st, and that as the ■principal had then been surrendered by his surety, and was then in the custody of the People, the criminal court had no, jurisdiction to declare a forfeiture, and thus lay the foundation for the •entry of the judgment in the common pleas. But the forfeiture was, in fact, complete on March 21st, and judgment could then 'have been entered upon filing the recognizance and a certified ■.copy of the minutes of the court.

Under § 593 of the Criminal Code, if the principal makes ■default and his nonappearance is entered in the minutes, the recognizance becomes ipso facto forfeited. ¡No further or formal order is necessary to fix the liability of the surety. His obligation to pay the amount of the bail then accrues and becomes absolute upon the record, and so continues until the surety is relieved or exonerated by the action of the court,' or in some other lawful manner. The subsequent surrender of the principal does not, of itself, work an exoneration. It may be considered and have its proper weight in an application for relief addressed to the favor of the court.

It is important to observe the distinction between the time when the forfeiture is incurred and the time when the judgment may be -entered The one relates to the maturity of the debt, the other to the application of the remedy for its enforcement. It may be that, under § 1480 of the consolidation act, the entry of an order declaring the forfeiture is a prerequisite to the right of the People to summarily enter judgment; but if the record shows that a forfeiture has been incurred, the court has the power, upon the application of the district attorney, to cause such an order to be entered at any time, and when so entered a certified copy with the recognizance may be filed with the county clerk and the judgment perfected. We think the entry in the minutes in this case on March 21st had all the essential qualities of an order forfeiting the recognizance, if not so expressed in terms, and that, upon filing a certified copy thereof, judgment might have been entered; but the district attorney preferred, undoubtedly as a precautionary measure, to apply for a more formal order, as he had a right to ■do, and, when obtained, to make use of it as the basis of the judgment. The substantial rights of the surety were not involved in this procedure. When his principal failed to appear, and the' •court entered that fact in its minutes, he became obligated to pay the record debt, which was then evidenced by the bail piece and the minute of the default. "This obligation continues until discharged by payment or by order of the court for cause shown. An arrest of the principal upon a bench warrant, and his discharge upon entering into another recognizance, to appear and answer to the charge which he kept, is no defense to an action on the first. The People v. Anable, 7 Hill, 33. It has been held that the subsequent trial and conviction of the principal did not affect the forfeiture. Walker v Commonwealth, 79 Ky., 292.

The practice here pursued was also in strict accordance with the agreement of the principal and surety, which was annexed to the recognizance, whereby they stipulated that, if it should be forfeited, a copy of the order of the court forfeiting the same might be filed with the recognizance in the clerk’s office and judgment entered for the sum set forth therein and execution issued forthwith. It is apparent, from the moving papers, that the appellant relied upon a remission of the forfeiture, which, however, was not consummated. When he surrendered his principal on April 1, his counsel made a motion for such relief, which, it is alleged, the court granted. Ho order to that effect appears in the record, and no such order was, in fact, entered. The oral direction of the court upon the subject is not sufficient. The truth in regard to the disposition of this motion undoubtedly appears in the affidavit of the assistant district attorney which, in its material statements, is not in conflict with the moving papers, but supplements them. When the motion was made, he stated to the court that, so far as he knew, the People were in as good a position to prosecute the principal as when the forfeiture occurred. It is to be inferred that if this had been true, an order remitting the forfeiture would have been entered according to the usual practice in such cases. .Bufe this assistant did not have charge of the case at the March term, and was, therefore, not aware of the discharge of the principal witness, without whose evidence a conviction could not be had. Thereupon the district attorney came in and communicated this fact to the judge, who immediately directed the clerk to enter the order of forfeiture. There is no appeal from the decision of the court of sessions, and if there were, its action was discretionary and not re viewable here.

The order of the general term must be affirmed, with costs.

All concur.


author: Barnard, P. J.

text:
    Henry H. Snow, Resp’t, v. Joseph Pulitzer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Landlord and tenant—Eviction.
    Plaintiff rented the store floor of certain premises for the term of three years. Before the termination thereof the landlord sold that and adjoining premises to defendant, who attempted to hnild on the adjoining lot, and in so doing rendered plaintiff’s building unsafe, by reason of which the superintendent of buildings ordered both taken down. Held, sufficient to constitute an eviction.
    2. Same—Damages.
    In such a case the value of personal property destroyed and loss of profits may be recovered.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      John M. Bowers and J. Gerard Buckley, for app’lt; Abel Crook, for resp’t.
   Barnard, P. J.

On the 5th of January, 1886, Helen A. French granted a lease to the plaintiff of certain premises in the city of New York to be used for the sale of confectionery. The lease expired on the 1st of May, 1889. The plaintiff moved into the premises on April 1, 1886, and expended money thereon to fit it for his business. In April, 1888, Mrs. French sold to the defendant the premises leased to plaintiff, but subject to it, and also other adjoining premises outside of those leased to plaintiff. In August, 1888, the defendant demolished the buildings next to those occupied by plaintiff. The removal of the walls on the south and west sides of the plaintiff’s premises rendered the same unsafe and dangerous, and the value of the remainder of plaintiff’s lease was destroyed entirely. The history of the removal of the walls was this: Mr. Pulitzer wished to ■erect a new building. He commenced upon the high building next plaintiff to take it down. When two stories had been removed it was certain that the plaintiff’s building would fall. The superintendent of buildings then obtained an order to take down both buildings, which was done by the defendant under .the decree for the demolition. This -was proof of an eviction. As between Mrs. French and the plaintiff, he had a right to have his leased buildings stand to the end of the lease. Mrs. French had no right to destroy his lease by taking down the lateral support, even if each building had an independent wall, which was disputed. The defendant took Mrs. French’s title with the same duty imposed on him as existed against his grantor. The acts which rendered the premises unsafe, so as to cause an actual removal of plaintiff therefrom, was sufficient proof of eviction. Dyett v. Pendleton, 8 Cow., 727, approved in Boreel v. Lawton, 90 N. Y., 298.

The act of eviction was an act of defendant, even though done by a contractor. The plaintiff had a right to his possession from the defendant, and any act done or caused by defendant which drove the plaintiff out of his possession was an eviction. The <1 am ages were proper. First, the court permitted a recovery for the value of personal property destroyed ; second, loss of profits; and third, difference between the cost of fixtures, put in at the commencement of lease, over and above the amount allowed by Mrs. French therefor. The item seriously contested is the item of profits. The case is one where proof tending to show profits destroyed was admissible and a recovery for such profits proper when once established by proof. Schile v. Brokhahus, 80 N. Y., 614; Wakeman v. Wheeler & Wilson Mfg. Co., 101 id., 205 ; White v. Miller, 71 id., 118.

The judgment and order denying new trial should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Court of Appeals.
    Filed November 29, 1892.
    George DeMets, App’lt, v. Frank Moss, Ex’r, Resp’t.

      Coles Morris, for app’lt; Stephen B. Brague, for resp’t.
    Appeal dismissed, with costs, on opinion in 81 ET. Y., 305.
   All concur.

See 43 St. Rep., 815.


text:
    Robert L. Mordecal, an Infant, Resp’t, v. Dyer Pearl et al., App’lts.

      A. J. Simpson, for resp’t; George L. Rives, for app’lts.
    Judgment affirmed, with costs.
   All concur, except Gray, J., not voting.

Affirming 45 St. Rep., 140.


text:
    Morris L. Shillak, Adm’r, App’lt, v. Alfred T. White, Resp’t.

      Charles B. Burke, for app’lt; Thomas S. Moore, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 38 St. Rep., 483.


text:
    The People, Resp’t, v. Henry Cassin, App’lt.

      Henry B. B. Stapler, for resp’t; Frank J. Keller, for app’lt.
    Judgment affirmed on opinions below.
   All concur.

Affirming 43 St. Rep., 133.


text:
    The People, Resp’t, v. Samuel W. Lewis, App’lt.

      Henry B. B. Stapler, for resp’t; Herbert W. Grindal, for app’lt.
    Judgment affirmed on opinion below.
   All concur.

Affirming 43 St. Rep., 768.


text:
    Harriet H. Vilas et al., Adm’rs, App’lts, v. Julia A. McBride et al., Resp’ts.

      G. H. Beckwith, for app’lts; Edgar T. Brackett, for resp’ts.
    Judgment affirmed on opinion of general term, without costs.
   An concur.

Affirming 43 St. Rep., 304.


text:
    In the Matter of the Judicial Settlement of Accounts of J. Howard Foote, Ex’r.

      Miron Winslow, for app’lt; Henry Galbraith Ward, for resp’t.
    Judgment affirmed, with costs against appellant personally.
   All concur.

Affirming 43 St. Rep., 350.


text:
    In the Matter of the Settlement of Accounts of Eliza Wesley, Ex’rx.

      Howard & Clark, for app’lt; Herbert P. Bissell, Wm. B. Hoyt and George Gorham, for resp’ts.
    Judgment affirmed, with costs, on opinion below.
   All concur.

Affirming 43 St. Rep., 953.


text:
    Lillie Burleigh Reid, Ex’rx, Resp’t, v. The N. Y., N. H. & H. R. R. Co., App’lt.

      Flamen B. Candler and Egerton L. Winthrop, Jr,, for resp’t; Henry W. Taft, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 44 St. Rep., 688.


text:
    Barbara Startz, Adm’rx, Resp’t, v. The Penn. & N. Y. Canal & R. R. Co. et al., App’lts.

      Geo. W. Cothran, for resp’t; George F. Brownell and Frank Brundage, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 48 St. Rep., 457.


text:
    Filed December 6, 1892.
    Mary M. Gouverneur et al., Resp’ts, v. The National Ice Co. of N. Y., App’lt.

      Eugene Frayer and E. A. Brewster, for motion; Calvin Frost, opposed.
   Motion for re-argument denied, with costs.

See 47 St. Rep., 601.


text:
    Rudolph Rannow, App’lt, v. Edward C. Hazard et al., Resp’ts.
   No papers.

Motion to stay proceedings, etc., denied; ten dollars costs.

See 47 St. Rep., 391.


text:
    Jas. N. Platt, Trustee, Resp’t, v. Andrew H. Mickle et al., Resp’ts, Lizzie Mickle, App’lt.

      Henry G. Harris, for motion; John W Weed, opposed.
   Motion to open default granted on payment of fifty dollars costs.

See 45 St. Rep., 750.


text:
    Sophia L. Mattern, App’lt, v. Russell Sage, Resp’t.

      Ira Shafer, for motion ; Henry S. Bennett, opposed.
   Motion for re-argument denied; ten dollars costs.

See 47 St. Rep., 939.


text:
    Filed December 13, 1892.
    In the Matter of Ann Eliza Owens, an Idiot.

      William T. Schley, for app’lt; W. Tazewell Fox, for resp’t.
    Order affirmed on opinion of Pryor, J., below, with costs.
   All concur.

Affirming 46 St. Rep., 763.


text:
    In the Matter of Ezekiel Fleming, Resp’t, v. Emma K. Tourgee et al., App’lts.
   No papers.

Order affirmed, with costs.

All concur.

Affirming 40 St. Rep., 705.


text:
    Filed December 20, 1892.
    Richard Bishop, Adm’r, Resp’t, v. Helen E. Hendrick, App’lt.

      John C. Keeler, for resp’t; Louis Hasbrouck and Daniel Magone, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 43 St. Rep., 396.


text:
    David W. Bruce et al., Ex’rs, App’lts, v. David W. Bruce et al., Ex’rs, et al., Resp’ts.

      John M. Bowers for app’lts; J.Frederic Kernocham, for resp’ts.
    Judgment affirmed on opinion of general term, with costs. •
   All concur, except Gray, J.. not voting, and Maynard, J., dissenting.

Affirming 43 St. Rep., 146.


text:
    Margaretta Meyer Paul, App’lt, v. Wm. H. Williams et al., Trustees, Resp’ts.

      Frank Rudd, for app’lt; Miron Winslow, for resp’ts.
    Judgment affirmed, with costs, on opinion below.
   All concur.

Affirming 37 St. Rep., 195.


text:
    Domenico A. Campanello, an Infant, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      Simon Fleischmann, for resp’t; Daniel H. McMillan, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 39 St. Rep., 445.


text:
    Jas. Caraher, Adm’r, Resp’t, v. The Royal Ins. Co. et al., App’lts.

      William Kenan, for resp’t; A. K. Sawyer and I. K. Ames, for app’lts.
    Judgment affirmed, with costs, on opinion below.
   All concur, except O’Brien, J., taking no part.

Affirming 44 St. Rep., 141.


text:
    Jennie T. Hard et al., Adm’rs, Resp’ts, v. Leurendus B. Ashley et al., App’lts.

      W. A. Sutherland, for resp’ts; P. M. French, for app’lts.
    Judgment and order affirmed, on opinion below, with costs.
   All concur.

Affirming 44 St. Rep., 792.


text:
    Mary Campbell, Adm’rx, Resp’t, v. The Lake Shore & Mich. So. R. Co., App’lt.

      Geo. W. Curthran, for resp’t; Damiel H. McMillan, for app’lt.
    Judgment affirmed, with costs.
   All concur.


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

Appeal dismissed on argument.

See 46 St. Rep., 497.


text:
    John C. Anderson v. Walter S. Carr et al.

   No papers.

Motion for permission to file bond and perfect appeal granted upon executing and filing a sufficient undertaking and paying seventy five dollars costs within twenty days.

See 47 St. Rep., 494.


text:
    Rosalie A. Bleakley, Resp’t, v. Timothy J. Sullivan, Impl’d, App’lt.
   No papers.

Motion to dismiss denied, ten dollars costs.

See 46 St. Rep., 962.


text:
    Chas. Ulrich, App’lt, v. Edward Ulrich, Ex’r, Resp’t.

      Edward W. S. Johnston, for motion; Nelson Smith, opposed.
    Motion for reargument denied, ten dollars costs.
   See 49 St. Rep., 33.


text:
    Henry Fera v. Daniel H. Wickham et al.

   No papers.

Motion to amend remittitur denied, ten dollars costs.

See 47 St. Rep., 866.


text:
    Conrad Sipfle, Jr., et al., Resp’ts, v. Alfred H. Isham, App’lt.
   No papers.

Motion to reserve appeal and correct return denied, ten dollars costs.

See 36 St. Rep., 762.


text:
    Filed December 23, 1892.
    In the Matter of the Estate of Chas. H. Butler, Dec’d.

      Wm. P. Platt, for app’lt; Frank Manser, for resp’t.
    Order affirmed, with costs to respondent to be paid out of the estate.
   All concur.

Affirming 34 St. Rep., 189.


text:
    Daniel E. Sickles, Sheriff, Resp’t, v. David A. Sullivan, Rec’r, App’lt.

      Daniel P. Hays, for resp’t; Frederic R. Kellogg, for app’lt.
    Judgment affirmed, with costs, on opinion of general term.
   All concur.

Affirming 47 St. Rep., 82.


text:
    Stillman F. Pratt, Adm’r, Resp’t, v. The Lake Shore & Mich. So. R. Co., App’lt.

      Tracy C. Becker, for resp’t; Daniel K. McMillan, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 45 St. Rep., 715.


text:
    Chas. H. Smith, Resp’t, v. Matilda F. Lockwood et al., Ex’rs, App’lts.

      Frank L. Hall, for resp’t; Francis H. Van Vechten, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 46 St. Rep., 244.


text:
    Caroline Hebert, Adm’rx, App’lt, v. The President, etc., D. & H. C. Co., Resp’t.

      James Lansing, for app’lt; Edwin Young, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 41 St. Rep., 860.


text:
    Supreme Court—General Term—First Department.
    Filed November 18, 1892.
    Hannah E. Boardman v. The Metropolitan Elevated R. Co.
   Motion denied, with ten dollars costs.


text:
    In the Matter of De Ainz.
   Motion granted, with ten dollars costs.


text:
    The Hecla Consolidated Gold Mining Co. v. Wm. L. O’Neill.
   Motion granted.


text:
    Wetmore v. Wetmore.
   The defendant being clearly in default in not serving his printed papers, motion granted, with ten dollars costs.


text:
    The First National Bank of Sing Sing v. Caleb B. Knevals et al.

   Motion denied.


text:
    Louise Meise v. John H. Doscher et al.

   Motion denied, without costs.


text:
    Morris Rubens, v. The Ludgate Hill Steamship Co., Limited.
   No proof of service of notice of motion.


author: Van Brunt, P. J.

text:
    Paul Williams, App’lt, v. William Hays, Resp’t.
   Van Brunt, P. J.

In view of the disposition made by the court of appeals in the case of Hays v. Insurance Co., 127 N. Y., 656; 38 St. Rep., 1015, where the same questions now presented seem to have been before that court, it does not seem necessary to discuss the points raised by the counsel for the appellant. The judgment and order appealed from should be affirmed, with costs.'

O’Brien and Lawrence, JJ., concur.


author: Per Curiam.

text:
    The National Park Bank of New York, App’lt, v. Warren N. Goddard et al., Resp’ts.
   Per Curiam.

Order affirmed, with costs and disbursements.


text:
    Samuel G. Metcalf, App’lt, v. Jose A. Del Valle, Imp’ld., Resp’t.
   Per Curiam.

We think that the judgment should be affirmed Upon the opinion of Mr. Justice Andrews, 46 St. Rep., 105, handed down upon the previous appeal in this action, which opinion this court adopts for the purposes of this appeal. The judgment should be affirmed, with costs.


author: Putnam, J.

text:
    General Term—Third Department.
    Filed November 22, 1892.
    William H. Flack, App’lt, v. George Karr and George W. Wannamaker, Resp’ts.
   Putnam, J.

Judgment should be affirmed. I think no opinion is required. The trial judge, in granting the non-suit, took the correct view of the case. Mayham, P. J., and Herrick, J., concur.


author: Mayham, P. J.

text:
    Annie I. Dawson, Trustee, Resp’t, v. John D. Parsons et al., App’lts.
    Appeal from two orders of the special term, one granted July 5-, 1892, enjoining and restraining the defendant from using, selling or disposing of partnership property. And one granted July 21, 1892, appointing a temporary receiver of partnership effects, etc.

      Edward J. Meegan, (Jacob H. Clute, of counsel), for resp’t; Moak & Buchanan (Charles J. Buchanan, of counsel), for app’lts.
   Mayham, P. J.

We think that these orders should be affirmed for the reasons stated in the opinion of the learned justice at special term.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam, J. concurs; Herrick, J., not acting.

Affirming 46 St. Rep., 721.


text:
    Eugene S. Clark, App’lt, v. Charles W. Lude, Resp’t.
    Appeal from order of county court setting aside verdict and granting new trial.
    Action for goods sold,

      Thomas F. Wilkinson, for app’lt, J. W. Ecker, for resp’t.
   Putnam, J.

In this case the respondent did not appear on the argument or present any points. I think the order of the county judge granting a new trial should be reversed, with costs, and that no opinion is required.

See 63 Barb., 21; 16 Hun, 415.

Mayham, P. J., and Herrick, J., concur.


author: Herrick, J.

text:
    John Baker, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.
    Appeal from judgment dismissing complaint.
    Action for damages for the loss of a finger while coupling cars.

      Parker & Mero {J. Newton Fiero, of counsel), for app’lt, 3a/rris <& Budd {Hamilton Harrris, of counsel), for resp’t.
   Herrick, J.

I cannot see any material difference between this case and that of Arnold v. D. & H. C. Co., 125 N. Y., 15 ; 34 St. Rep., 372, and I think the judgment should be affirmed. Neither do I see any reason for writing an opinion.

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


text:
    The St. Lawrence Wholesale Grocery Co., App’lt, v. Howard H. Hobson, Resp’t.
    Appeal from order changing place of trial.

      G. S. Dorwin, for app’lt; McClary & Paddock (F. G. Paddock, of counsel), for resp’t.
   Herrick, J.

This is an appeal from an order changing the place of trial. I can see no reason for an opinion. I do not see that the special term abused its discretion. I very much doubt if I should not have made the order if I had been holding the special term, and when I cannot clearly see that the special term erred I think the order should be affirmed, with costs.

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


text:
    Filed December 8, 1892.
    The People ex rel. The Harlan & Hollingsworth Company v. Frank Campbell, Comptroller.
   Decision of the comptroller affirmed, certiorari dismissed, with costs and printing and other disbursements.


text:
    William S. Hackett, Assignee, App’lt, v. Thomas O. Crehan, Resp’t.
   Order affirmed, without costs to either party, upon respondents deducting four dollars from the bill of costs taxed and the judgment thereon,


text:
    James M. Smith, Ex’r, Res’pt, v. Frank Pelott et al., App’lts.
   Order affirmed, with ten dollars costs and printing and other disbursements.


text:
    Carlisle H. Coonley, Resp’t, v. Allen Martin et al., App’lts.
    Judgment affirmed, with costs.
   Appellant not appearing.


text:
    Hiland H. Chapin, Resp’t. v. A. V. Pratt, App’lt.
   Motion for leave to go to the court of appeals denied, with ten dollars costs.


text:
    Charles E. Bullard, App’lt, v. Mary C. Harris, Resp’t.
   Motion for leave to go to the court of appeals denied, with ten dollars costs.


text:
    Thomas G. Birdsall, Resp’t, v. Charles E. Keyes, App’lt.
   Motion for leave to go to the court of appeals denied, with ten dollars costs.


text:
    General Term—Fourth Department.
    Filed December 9, 1892.
    Alvah S. Miller, App’lt, v. Samuel George, Resp’t.
   Judgment affirmed, with costs, upon the opinion of Parker, J., delivered at special term.


text:
    William Sterling, App’lt, v. Emeline Hill, Resp’t.
   Motion granted, with ten dollars costs, unless the appellant shall within twenty da>-s from service of order print and serve copies of the bill of costs and judgment roll, in which event the motion is denied, without costs.


text:
    Frank Moulton, Resp’t, v. Denis O’Sullivan, App’lt.
   Motion to dismiss appeal granted, with ten. dollars costs.


text:
    The Trustees of Skaneateles Village, App’lts, v. The City of Syracuse et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the final judicial Settlement of Accounts of Franklin C. Cornell, as sole Administrator of Estate of Ezra Cornell, Deceased.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Susan B. Yerkes, Resp’t, v. Charles McFadden, Sr., et al., App'lts.
   Order denying motion to vacate attachment affirmed, with ten dollars costs ,'and disbursements.


text:
    Susan B. Yerkes, Resp’t, v. Charles McFadden, Sr., et al., App’lts.
   Order for sale of attached property reversed, with ten dollars costs and disbursements


text:
    Daniel Perry, Resp’t, v. Ira W. Perry, Appl’t.
   Appeal dismissed, with costs. Held, as the judgment was taken by default, no appeal lies therefrom. Code Civ. Pro., § 1294; Flake v. VanWagenen, 54 N. Y., 25.


text:
    Phæbe Turner, Resp’t, v. Orrin Turner, App’lt.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


text:
    The Mutual Life Insurance Company of New York, App’lt, v. John O’Donnell et al., Resp’ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The Glenside Woolen Mill, App’lt, v. City of Syracuse et al., Resp’ts.
   Order affirmed, "without costs.


text:
    Charles G. Thompson et al., Resp’ts, v. Susan Y. Thompson et al., App’lts.
   Order reversed, without costs, and a stay of proceedings granted as against Richard Skinner until efforts to collect a judgment from the other parties against whom it is rendered shall be exhausted, when an application may be made at special term for leave to collect of Richard Skinner the same, or any part thereof remaining unpaid.


text:
    The People, Resp’ts, v. Henry J. Coggeshall, App’lt,
   Order affirmed, with ten dollars costs and disbursements.


text:
    Betsey Revoir, Resp't, v. Florence A. Barton et al., App’lts.
   Order reversed, with ten dollars costs and disbursements.


text:
    Erastus K. Burnham, Resp’t, v. The Cape Vincent Seed Company (Limited), App’lt.
   Judgment and order affirmed, with costs.


text:
    Geneva A. Middler, Resp’t, v. Hiram D. Burdick, Impl’d, Resp’t.
   Judgment affirmed, witli costs.


text:
    Rosa Williams, Resp’t, v. Uriah Williams and Palmer G. Williams, App'lts.
   Judgment and order affirmed, with costs.


text:
    Harry Ross, Resp’t, v. Ira T. House, App’lt.
   Judgment and order affirmed, with costs.


text:
    George L. Rood v. Wallace L. Weaver.
   Motion for a new trial dismissed for want of jurisdiction. See Johnson v. N. Y, O. & W. R. R. Co., 30 Hun, 166.


text:
    Leonard P. Mosher, Adm’r, Resp’t, v. James S. Baker, App’lt.
   Judgment affirmed, with costs.


text:
    Rush S. Watson, Resp’t, v. The Oswego Street Railway Co., App’lt.
   Judgment and order reversed and new trial ordered, with costs to abide the event. Order refusing a new trial on the ground of surprise reversed, without costs to either party.


text:
    Charles M. Smith, Ex’r, Resp’t, v. George B. Northrup, App’lt.
   Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, that the evidence as to taking mortgages subsequent to the 22d of March, 1890, was improperly received.


text:
    Eugene J. Widrick, Resp’t, v. John Moore et al., App’lts.
   Judgment and order reversed on the exceptions, and a new trial ordered, •with costs to abide the event. Held (1), that the evidence as to the defendants being insured against loss by injuries to their employees, and the comments thereon by the counsel to the jury, were improper. (3.) The evidence does not sustain the alleged ground of negligence submitted to the jury.


text:
    The People, Resp’ts, v. Lucius E. Holden, App’lt.
   Conviction, judgment and order reversed, and a new trial ordered, and the clerk of Onondaga county directed to enter judgment and remit a certified copy thereof, witli the return and decision of this court, to the court of sessions of Tompkins county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.


text:
    Samuel E. Warner, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.
   Judgment and order affirmed, with costs.


text:
    The Syracuse Savings Bank, Resp’t, v. Florence A. Barton et al., Impl’d, App’lts.
   Order striking out answers as frivolous reversed. Judgment reversed, with one bill of costs to appellants, to be paid by respondent. Other orders appealed from vacated.


text:
    Eve Jenkins, App’lt, v. Henry O. Gardner, Resp’t.
   Judgment affirmed, with costs.


text:
    Nathan Walrath, App’lt, v. Addis Weaver, Resp’t.
   Judgment affirmed, with costs.


text:
    James M. Hazelwood, App’lt, v. Daniel Staring et al., Resp’ts.
   Judgment and order affirmed, with costs.


text:
    In the Matter of Proving the Last Will and Testament of Peter Ingison, Deceased.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Harvey Linsley, Resp’t, v. Philander Spaulding, App’lt.
   Judgment and order affirmed, with costs.


text:
    Austin Howe, App’lt, v. James O. Coy, Resp’t.
   Judgment of county court affirmed, with costs.


text:
    Joseph H. Davies, App’lt, v. George W. Bogart, 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 receiving evidence of the declarations of the witness Buskey; 2, that there was no evidence that the plaintiff’s mortgage was fraudulent as against Buskey’s creditors, and the court improperly refused to charge the jury to that effect; 3, the court improperly refused to charge that the price agreed upon between the defendant and Buskey for keeping the mule was conclusive upon the defendant, and he could not claim, a lien upon the mule for any greater sum for such keeping.


text:
    Jesse E. Sisson, Resp’t, v. Jeremiah Bauder, App’lt.
   Judgment affirmed, with costs.


text:
    Susan B. Yerkes, Resp’t, v. Charles McFadden, Sr., et al., Impl’d, App’lts.
   Order of special term reversed, with ten dollars costs and disbursements, and the attachment vacated as to appellants only.


text:
    Edward J. Hingstone et al., Resp’ts, v. Ezra B. Knapp et al., App’lts.
   Injunction order modified so as not to prevent the defendants from pursuing any legal remedies they have, and not to authorize the plaintiffs to wrongfully obstruct or wrongfully interfere with the streets and parks of the village of Skaneateles, and, as modified, affirmed, with ten dollars costs and disbursements to the appellants.


text:
    The People v. The Binghamton Trust Company.
   Motion granted on the ground that a question of law is involved in the case, which ought to be reviewed by the court of appeals. Order filed with the clerk.


text:
    George N. Crouse et al., App’lts, v. Hector B. Johnson, Sheriff, and Philander Wilson, Resp’ts.
   Motion for leave to appeal to the court of appeals denied.