author: MAYHAM, P. J. PUTNAM, J.

text:
    John Dobert, as Administrator, etc., App’lt, v. Troy City Railway Company, Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed December 3, 1895.

    1. Negligence—Contmbutokt;.
    If the question as to whether or not the party injured was guilty of contributory negligence is so closely balanced by the evidence that men of ordinary intelligence might reach different conclusions from the same evidence the question of contributory negligence must be submitted to the-determination of the jury.
    2. Same. . „
    Where the injured party is shown -to have exercised some degree of caution, it is the province of a jury to pass upon the question of contributory negligence, unless there is such palpable want of care as to constitute legal negligence per se.

    8. Same.
    A passenger has a right to rely with some degree of confidence on the fact that the company, whose patron he is, will not expose him to immi-
    nent hnzard at a point at which he is permitted and compelled to alight from its car.
    4. Same.
    It is a fair question for the jury to determine whether it is not negligence on the part of the company to allow the car on one track to pass a car receiving and discharging passengers on another track, with intervening space of not more than one foot between the cars, at the ordinary rate of speed.
    Appeal from a judgment of nonsuit.
    Warren, Patterson & Faulkner (Charles T. Faulkner, of counsel), for app’lt;
    Thomas S. Fagan, for resp’t.
   MAYHAM, P. J.

This action was brought by the plaintiff, as administrator of the estate of William Dobert, deceased, to recover against the defendant for its alleged negligence in the management of its motor cars, by which the plaintiff’s intestate was tilled. The facts disclosed by the evidence are briefly as follows: On the 3d day of January, 1893, the intestate was riding in one of defendant’s motor cars in the city of Troy, going' in a southerly direction along River street, on the westerly track of the railroad at that point. At the junction of River and Congress streets the car on which intestate was riding stopped to receive and discharge pásssengers. The intestate alighted from the ear at that point on the right-hand side of the rear platform, the left-hand side of the platform being guarded by a railing, so as to compel all passengers to alight and enter said car upon the right-hand side. Parallel with the westerly track of this railroad at that point is another track, three feet distant, used for north-bound cars on such railroad. On alighting from the car at the time in question, intestate passed around the rear end "of the car oh which he was riding, and started in an easterly direction up Congress street, to cross the easterly track, and at the moment of stepping upon such track was struck by a north-bound car, and killed. The car on which intestate was riding'was a closed car, which, to some extent, .must have obstructed the view of the approaching north-bound car. The evidence discloses that the intestate, on passing around the rear car, looked in the direction of the approaching car. The intervening distance between the car going north and south is fixed by the witnesses at about one foot. The north-bound car seems to have been moving at the ordinary rate of speed of motor street cars. The car which struck intestate was stopped within a distance of three of four feet from where the collision occurred, and when stopped the body of the intestate was under the wheels. It does not appear from the evidence that the north-bound car was slowed in its speed on approaching the crossing, or at the point where passengers of the south-bound car alighted; nor does it appear from the evidence that any signal or warning of its approach was given from the north-bound car. The evidence discloses that the rules of the defendant company required that when a car is standing upon a crossing the operators of a car moving in an opposite direction shall slack up before reaching the crossing.

At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit, and that the complaint be dismissed, upon the following grounds: (1) That the plaintiff has failed to establish a cause of action against the defendant; (2) that the defendant was not negligent; (3) that there is no evidence to justify the jury to find the defendant guilty of negligence; (J) that the undisputed proof is that the plaintiff’s intestate was guilty of contributory negligence; (5) that it has not been shown affirmatively that the plaintiff’s intestate was free from contributory negligence; (6) the evidence shows the plaintiff’s intestate was guilty of contributory negligence. The plaintiff’s counsel asked the court to permit the plaintiff to go to the jury upon the question as to whether or not the accident in this case was occasioned by the negligence of the defendant. (2) The plaintiff asked the court to submit to the jury the question as to whether or not the view of the defendant, at the time he approached the easterly track, and met with the accident that occasioned his death, was obstructed, so that he was. excusable for not seeing the approaching car. (3) The plaintiff asked to go to the jury on the question as to whether or not the evidence does not show that the deceased exercised ordinary care and prudence in approaching the crossing at the time of the occurrence of the accident. ' (4) The plaintiff asked to go to the jury upon the question, as to whether the deceased did not exercise all the precaution he was by law required to exercise in approaching the scene of the accident. (6) The plaintiff asked to go to the jury upon the question of the freedom of the decedent from contributory negligence in every view upon which the question can be raised. Each of these requests was denied by the court, and to each the plaintiff’s counsel excepted. The court thereupon granted the defendant’s motion for nonsuit and dismissal of the complaint, to which determination the plaintiff’s counsel also excepted.

No rule is better settled than that, where a plaintiff seeks to recover for the negligence of his adversary, he must show affirmatively his freedom from contributory negligence, and where the injured party fails in that particular he must fail in his action; but if the question as to whether or not the party injured was guilty of contributory negligence is so closely balanced by the evidence that men of ordinary intelligence might reach different conclusions from the same evidence, the rule seems well settled that in such cases the question of contributory negligence must be submittted to the determination of the jury. It seems to us that the case under consideration comes within the latter rule. The plaintiff alighted from a car on which he had been transported as a passenger of the defendant, taking the only available means of exit from the car, and upon a' crowded thoroughfare sought to cross an adjacent track of the defendant’s railroad, over which a car was moving in an opposite direction, at the ordinary rate of speed, and which car, as would appear from the evidence, was hidden from the view of the intestate until the very moment of his fatal collision with it. He had a right to cross the other track of the defendant’s railroad, and pass up the public thoroughfare upon which he was permitted to alight. It is true that he was bound to recognize the fact, which must have been known to him, of the existence of another track, from which trains might pass in an opposite direction; but it does not appear that he was familiar with this crossing, or that he had any warning of the-approach of a car from the opposite direction, or that any warning was given him by the defendant’s employes. It may be that this unfortunate accident was one of those unavoidable occurrences against which ordinary prudence will not guard; and for which the law would" afford no indemnity. But that would be a question of fact to be found by the jury from a consideration of the whole case.

It does not appear to us that there was such a want of care on the part of the plaintiff’s intestate as to justify the conclusion, as matter of law, that he, by his negligence, contributed to the injury for which this action is brought. Doubtless the jury, had the case been submitted to them, might have reached such a conclusion, and, if they had, their verdict upon the evidence in this case would not be set aside as entirely unsupported by evidence; but it was so close a question that, unless the court must, in all cases, determine, without the intervention of a jury, the question of contributory negligence, it seems to us that this was one eminently proper to be submitted for their consideration.

In Moebus v. Herrmann, 108 N. Y. 354; 13 St. Rep. 648, the court of appeals, in passing upon a question not unlike this in some respects, uses this language:

“The duty imposed upon a wayfarer in crossing the street by the track of a railroad to look both ways does not, as matter of law, attach to such person when about to cross from one side of the street to the other, in a city street. The degree of caution which he must exercise will be affected by the situation and surrounding circumstances.”

It is true that utterance was made in reference to an injury inflicted by an ordinary carriage, and not by a railroad car; but in all cases where the recovery is sought for the alleged negligence of the defendant, and the question of contributory negligence becomes the subject of inquiry, the degree of caution which must be exercised will he affected by the situation and surrounding circumstances, and they become a pertinent subject of the inquiry; and, where the injured party is shown to have exercised some degree of caution, it is the province of a jury to pass upon the question of contributory negligence, unless there is such palpable want of care as to constitute legal negligence per se. In the case at bar, as we have seen, the intestate’s view of the west-bound track was obstructed by the motor car from which he alighted, and it was a question for the jury, under the evidence in the case, we think, whether the motor car moving north might have been seen or heard by the intestate in time to enabled him to have avoided the injury.

In Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 363; 22 St. Rep. 697, it is said:

“The rule which prescribes it to be the duty of persons to exercise care and caution in going upon the railroad track, and to use their senses of seeing and hearing for the purpose of discovering and avoiding danger, is one frequently found in reported cases, and, as a general rule, is salutary and just. But the duty of active vigilance must be adapted, to the circumstances of the case, and if the offending company has, by its own conduct, and by its published regulations, led the public to believe that trains would not be run on its tracks at specific times and places, persons having occasion to cross them have a right to rely on the assurance of the company, and are not necessarily guilty of negligence when ijured by prohibited trains while doing so. The deceased was justified in supposing that no rapidly moving train would come into the station while he remained in the yard and engaged in communicating with his friends on the west side. Having once looked, and seeing no train, he had the right to assume that none would be coming at such a rate of speed as would preclude him from crosssing a single track. It is probably true that, if he had looked both ways at the moment of stepping upon the track, he could have seen the approaching train; and that might be said of almost every accident of a similar character, and it is a degree of vigilance seldom adopted by any one, and would require the impossible feat of looking in opposite directions at the same time, or anticipating the point from which he was to be assailed. The law does not require this. Heither is there any rule which will defeat a recovery in a case of this kind merely because it was possible for the injured person to discover the approaching train. The law does not forbid persons from crossing railroad tracks, and impose upon them exclusively t}ie responsibility for damages- incurred in making the atempt. The question is whether the injured party, under all the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. The rale must in all cases except those marked by gross and inexcusable negligence render the question involved one of fact for the jury.”

It is not absolutely certain, as seems to be held by the learned trial judge, that the plaintiff’s intestate could have seen the approaching car on the north-bound track until the very moment he was hit by it. A witness, who accompanied him, and who, from the testimony, could not have been a step behind him, and who was intending to cross the track, testified that he did not see the car until it struck the intestate. It can hardly be said, therefore, that it affirmatively and satisfactorily appears from the case that the intestate could or must have seen the approaching car before the collision.

In Baxter v. Railroad Co., 41 N. Y. 505, the court said:

“The inquiry is whether, from the evidence, it satisfactorily appears that the plaintiff, by looking, could have seen the train in time to have avoided the collision. If so, the plaintiff should have been nonsuited. If not, the case was a proper one for submission to the jury. The plaintiff testified he was well acquainted with the crossing; that he did not look for the train; that he could not have seen it at all upon the track if he had, on account of the hill, etc. If this was true, the plaintiff was excused from looking, as the law does not require one to look to see something when it is impossible to see it.”

In the case at bar the evidence indicates that the intestate looked in the direction from which the car approached; but the evidence also tends to prove that his vision was entirely obstructed by the intervening car from which he had alighted. In Greany v. Railroad Co., 101 N. Y. 426, Judge Danforth, in examining the question of contributory negligence of the plaintiff, after quoting her testimony at some length, the conclusion of which was:

“If I had looked earlier, I would have seen it; but I did not think there was any need of looking more than once. I did not think there was any other train due at that time. I had looked a few seconds before, and then went on. When I looked, I could see a quarter of a mile. I did not see any train, and then I walked toward the track, and the train was right' upon me before I noticed it,”—said: “At this time the engine at the depot was blowing off steam, and she heard no bell or whistle from the train earning from the east. According to defendant’s time table, these trains should not have met and passed each other at this station, but the train coming e'ast was behind time. The engineer in charge of the train coming west first saw the plaintiff when six hundred feet distant. Can it be said, under these circumstances, that she was bound by law to see the incoming train? Was it not rather for the jury to say whether or not she had made the effort which a prudent person would make in like circumstances? I think it was for the jury, for it cannot be said to be impossible for a reasonable person to conclude that the accident was caused by the negligent running of the defendant’s train, and not by the 'omission of duty or reasonable care on the part of the plaintiff to avoid the collision.”

In Terry v. Jewett, 78 N. Y. 342, the court say:

“It may be assumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is 'free from interruption or obstruction where passenger trains stop at a station to receive and deliver passengers. Any other system would be dangerous to human life, and impose great risk upon those who might have occasion to travel on the railroad.”

Assuming this to be a correct exposition of the law on this subject, can it be said as matter of law that the intestate could not, with some degree of assurance, rely upon the supposition that the defendant would not permit a rapidly moving car to pass a car standing at a crossing, which was receiving and discharging passengers? The case, as we have seen, does not disclose that the intestate had any knowledge of the method of defendant’s running trains at this point, or that there was a north-bound train to pass over this crossing at the very instant passengers were being discharged on it by a south-bound train. The plaintiff’s intestate had a right to rely with some degree of confidence on the fact that the company, whose patron he was, would not expose him to imminent hazard at a point at which he was permitted and compelled to alight from its car. Brassell v. Railroad Co., 84 N. Y. 241; Gaynor v. Railroad Co., 100 Mass. 208.

We have thus far discussed this question upon authority, without regard to any distinction between the duties and obligations imposed upon persons claiming damages for injuries by steam-railroad companies, and those inflicted upon persons by motor cars or street railways. But there seems to be a well-recognized distinction between the amount of care exacted of persons crossing a steam railway and that of persons crossing a street railway.

In Brown v. Twenty-third St. Railway Co., 21 St. Rep.. 475, Ingraham, J., in delivering the opinion of the general term of the superior court of New York, uses this language:

“A person about to cross a city street has to protect himself against, not only the road cars, but also against wagons and trucks using the street, and he is bound to be vigilant and cautious. 1 do not "think it can be said to be contributory negligence, as matter of law, because he fails to see an approaching car.”

In Railway Co. v. Maynard (Ind. App), 32 N. E. 343, the court say:-

“There is a solid foundation for this distinction, and to sanction a rule that would impose the same obligation upon persone using the tracks of a street railway as that which obtained where the plaintiff crosses or walks along an ordinary railroad track would be to practically surrender a street to the railroad company. This result principle and authority forbid.”

We think the case at bar is plainly distinguishable from the cases cited and relied upon upon the question of contributory negligence by the learned counsel for the respondent.

In Burke v. N. Y. C. & H. R. R. R. Co., 73 Hun, 35; 57 St. Rep. 7, the court say:

“Where it is apparent that a person, by the use of his eyes, could have seen the danger, and avoided it, it seems to be trifling with the rules of law to say that simply because the head was turned in one direction or another he has, therefore; complied with the plain dictates of ordinary prudence. This rule was expressly Hid down in the case of Tucker v. N. Y. C. & H. R. R. Co., 124 N. Y. 308; 36 St. Rep. 272, and seems to be entirely consistent with reason.”

The soundness of that-rule cannot be questioned, but it fails in its application to the case at bar, because it does not appear that the intestate, by the use of his eyes, could have seen the danger, and avoided it. At least that was so far a doubtful question as to make it the proper subject of innuiry for the jurv.

In Purdy v. N. Y. C. & H. R. R. R. Co., 87 Hun, 97; 67 St. Rep. 676, the court, in discussing the question, uses this language:

“He (the plaintiff) knew there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction in which the other train was coining, until it had passed the crossing and proceeded some distance beyond.”

There is no evidence in the case at bar that the intestate knew that there were two tracks upon which trains passd in opposite directions. That knowledge ivas an important consideration in determining whether or not he was guilty of contributory negligence. Within the authorities, we are forced to the conclusion that the question of contributory negligence was a question of fact in this case, proper for the consideration of the jury, and that it was error for the learned trial judge to determine, as matter of law, that the plaintiffs intestate ivas guilty of contributory negligence.

We are also of the opinion, from the evidence in this case, that the question of defendant’s negligence should have been submitted to the jury. Assuming, as we must, that’ the defendant had a right to run its motor cars through the streets of the city, it was manifestly its duty so to manage them as to minimize the risk to human life upon its tracks. It had adopted a rule that its cars in approaching crossings where passengers were to be received and discharged from other cars must reduce their speed. We think it was for the jury to say in this ease whether that rule was complied with, and whether, if it was not complied with, it was negligence for which the defendant would be liable. It is a matter of public knowledge that motor cars run with much less noise than steam cars; that they are under more complete control of the motormen and conductors than steam cars can be; that their approach to a crossing where passengers are being discharged is much less likely to attract the attention of passengers boarding and being discharged from cars at crossings than would steam cars; and it was, we think, a fair question for the jury to determine whether it" was not negligence on the part of the defendant to allow the car on one track to pass a car receiving, and discharging passengers on another track, with intervening space of not more than one foot between the care, at a rate of speed such as is indicated by the evidence in this case. On the whole case, we think there were questions of fact upon the evidence which it was error for the learned trial judge to withhold from the jury, and for that reason, the judgment should be reversed.

Judgment reversed, and a new trial ordered; costs to abide the' eventA "

HERRICK, J.—concurs in result.

PUTNAM, J.

(dissenting). I think the judgment should be affirmed for the reasons stated by the learned trial judge in granting the motion for a nonsuit. See Scott v. Third A. Railroad Co., 41 St. Rep. 152; Thompson v. Buffalo Railroad Co., 145

NOTE.

The reasons stated by the trial judge on granting the motion for a nonsuit, and adopted by Mr. Justice Putnam, supra, are as follows:

“It appears from the evidence that the plaintiff’s intestate was a passenger on one of the defendant’s electric railway cars, which was being propelled through River street, in the city of Troy; that the car was-running on the westerly track through Eiver street, and stopped at the southerly crossing at the intersection of that stret with Congress street to allow passengers to alight. There was a guard upon the east side of the platform, in consequence of which the decedent was compelled to alight upon the westerly side of the platform. He passed the rear of the car from which he alighted, proceeded in an easterly direction towards the defendant’s easterly track through Eiver street. I think it is clear from the evidence that before he steped upon the easterly track of the defendant in Eiver street he could have seen a car approaching from a southerly direction. There is no evidence that there was anything here to obstruct his vision. A white car on the defendant’s line was proceeding northerly at this time on the easterly track through Eiver street, which struck the decedent, and produced his death. That car he could have seen approaching before he stepped upon the easterly track. I am of the opinion that the same rule of law applies in this case as is applicable to the case of a pedestrian upon, the highway who attempts to cross a street where it is intersected by a steam railway; that it is his duty to look and listen for an approaching train; that that duty is incumbent upon him before he steps upon the track; that if he fails to look, his omission is, as matter of law, negligence, if by looking he could have seen the approaching train. If he does look, and sees the train, and proceeds upon his way, he does it at his own peril. That principle of law, I am of opinion, is applicable to a person attempting to cross a street in a city upon which there are cars propelled by electricity; and I hold the rule to be the same in this case as in the case of steam railways, and my decision of this motion is based solely upon such holding. As I have said, the decedent could have seen the train proceeding northerly upon the easterly track in Eiver street. There was nothing to obstruct his vision there. He failed to look, which was negligence per se; or, if he did look, and saw the train, he proceeded on his way across the track at his peril, and such negligence was contributory in this action, and is fatal to a recovery.

“For these reasons the motion for a nonsuit is «ranted.”


source: Caselaw Access Project

author: PUTNAM, J.

license: Public Domain

text:
    People ex rel. George Canaday, as Committee, etc., Resp’t, v. James H. Williams et al., as Assessors, etc., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Taxes—Exemption.
    Land purchased by the committee of a lunatic with pension money of the lunatic is exempt from taxation, though the title to such land is taken in the name of the committee.
    2. Cebtiorabi—Conceded facts.
    A fact, which is conceded by the assessors on the hearing before them, is not up for review on a eertiorw'i to review that determination.
    3. Same—Who mat make application.
    The committee of a lunatic may apply for a writ of eertiora/ri to review the decision of assessors, refusing to strike from the assessment roll property of the lunatic exempt from'taxation.
    4. Same—Costs.
    Costs against the assessors will not be allowed on reversal of thier decision, refusing to strike property from the assessment roll, where the question submitted to the assessors was not free from doubt.
    Appeal from an order denying a motion to quash, the writ of certiorari.
    Strait & Betts (Henderson Peck, of counsel), for app’lts;
    McCall & Dyer (Zeb A. Dyer, of counsel), for resp’t.
   PUTNAM, J.

This is an appeal by defendants from an order of the special term denying their motion to quash a writ of certiorari issued under the provisions of chapter 269, Laws 1880, to review an assessment of certain real estate of which George Canaday, as committee of Jeremiah Canaday, a lunatic, holds the legal title. It was placed on the assessment roll by defendants, the assessors of the town of Hassau, NT. Y., in the year 1894, against George H. Canaday individually. Relator appeared before said assessors by attorney on the day appointed for hearing grievances, and claimed that said real estate was exempt from taxation on the ground that it was owned by him as committee as aforesaid, and was.purchased with pension money of said lunatic, received from the United States by said Jeremiah Canaday as a disabled sailor; and relator produced and read to said assessors on said hearing a verified petition, showing the facts as claimed by him. The assessors declined to strike said assessment from the roll, and relator obtained a writ of certiorari. The court below appointed a referee to take evidence under the provisions of section 4, chapter 269, Laws 1880, and on the report of said referee made findings which appear in the papers submitted to us. Among other things, the court found:

“That George Canaday, as committee of Jeremiah Canaday, an adjudged lunatic, on said 22d day of July, 1889, became, and ever since has been, and now is, the owner of the premises described in the petition herein; that the money used for the purchase of the premises described in this proceeding was pension money received from the United States government by Jeremiah Canaday, an honorably discharged sailor in the United States navy; that the property described in the petition in this'proceeding is not held by George Canaday, as committee of Jeremiah Canaday, for and on account of said Jeremiah Canaday and the family of said Jeremiah Canaday.”

In reference to the hearing before the assessors the following findings were made:

“That on such hearing the petitioner, George Canaday, filed With said assessors his affidavit, showing that the land in question was purchased by pension moneys for the benefit of a disabled sailor by moneys paid such disabled sailor by the United States; that upon such hearing the said petitioner, by his said attorneys, stated to said assessors that if they were not satisfied that the statements set forth in the petition were true, he would have the petitioner appear in person, and would produce evidence before them to show that the money which purchased this farm was pension money received by said committee from the United States, and the said assessors replied that there was no need of doing that; that said assessors did not request the presence or appearance of said petitioner to make proof of the facts alleged in the petition; that said assessors did not request the production of any proof of the facts alleged in the petition; that said assessors refused to strike the said assessment of said property from said assessment roll of said town, and to assess said property as exempt property, basing their decision on the ground that the law did not exempt said property from taxation.”

The evidence in the case was sufficient to sustain these findings of the court below. As the title to said real estate was shown to-be in relator, as committee of said lunatic, and as it was purchased with money of the lunatic’s, received as a pension from the United States, and as property so purchased is exempt from levy and sale under execution (Yates County Nat. Bank v. Carpenter, 119 N. Y. 550; 30 St. Rep. 131), and hence by statute exempt from taxation, it would seem to follow that the assessment in question should have been stricken from the roll by the assessors on the application of relator, and that the court below reached a correct conclusion in the matter, unless certain positions taken by the appellants can be sustained. It is urged that relator failed to-show in the court below that he was duly and legally appointed committee of the person and estate of said lunatic. It is a sufficient answer to this position that no such claim was made on the hearing before the assessors. The relator produced his affidavit, alleging his appointment as such committee, and, as the special term found, on competent evidence, offered to bring the lunatic before the assessors, and produce evidence before them of the truth of the matters alleged in the petition; and the assessors waived the production of such proof. Also there was testimony below that assessors said to relator’s counsel on the hearing before them that they did not dispute the facts set forth in the petition; that they did not believe the law allowed them to exempt such property. A fact which was conceded by the assessors on the hearing before them is not up for review on the certiorari to review their determination. The office of a certiorari is to review the decision actually made by the assessors. People v. Zoll, 97 N. Y. 203; In re Corwin, 135 id. 245-251; 48 St. Rep. 238. The facts conceded and agreed upon by the parties on the hearing before the assessors could properly be deemed established on the hearing of the certiorari. There was no dispute as to the fact that the title of the property described in the petition was in George Canaday as committee. The defendant assumed to assess it against Gqorge H. Canaday individually. I think that under section 1, chapter 269, Laws 1880, the relator, as committee, was a person aggrieved by the action of the assessors, and, under section 2340, Code Civil Procedure, he was authorized to sue out a writ of certiorari.

The papers submitted show that relator purchased the property in question on a mortgage sale under a mortgage held by him for the lunatic, taking title to George Canaday, as committee of Jeremiah Canaday, an adjudicated lunatic. Probably he should have taken title in the name of the lunatic. It is doubtful whether a committee of the person and estate of a lunatic has a right to take title to real estate in his own name for the lunatic. It is held that a committee takes no title to a lunatic’s estate. He is a mere bailiff to take care of and. to administer it under the direction of the court, and in fact is an officer of the court. In re Strasburger, 132 N. Y. 128; 43 St. Rep. 553; People v. Tax Commissioners, 100 N. Y. 215; Underhill v. Jackson, 1 Barb. Ch. 73; In re Otis, 101 N. Y. 580, 581; Pharis v. Gere, 110 id. 336; 18 St. Rep. 534.. I am inclined to think, therefore, that the purchase by relator of the property in question, and taking title thereto in his own name, was unauthorized. But, assuming that such is the fact, and that relator, as committee, cannot legally hold real estate of the lunatic, it follows that under the provisions of the statute of uses and trusts he holds title to the property in question as trastee of said Jeremiah Canaday, a mere naked title "without interest. Siemon v. Schurck, 29 N. Y. 598; Reitz v. Reitz, 80 id. 538. In this view of the case the title to the premises in question is in relator as trustee of the lunatic. As such trustee he holds a mere legal, naked title "without any interest in the premises. He holds such legal, naked title for the benefit of Jeremiah Canaday. I concluded, therefor, that as the land is thus held for the benefit of the lunatic, and as the latter is in fact the beneficial owner thereof, and such land was purchased with his pension, that it is exempt from taxation;, and see no reason to doubt that relator, as committe, under the provisions of section 2340, supra, was authorized to maintain a certiorari to view the action of the assessors. Hence the determination of the special term should be sustained, except in one regard. In the order appealed from, costs were awarded against the assessors. By section 6, c. 269, supra, it is provided that costs shall not be allowed against the assessors or other officers whose proceedings may be reversed under the act, unless it shall appear that they acted with gross negligence, in bad faith, or with malice. The question submitted to the assessors was not free from doubt, and I think the papers submitted'to us do not show such a state of facts as justifies an award of costs against them under the provisions of the act. In this regard the order should be modified, and, as modified, affirmed without costs.

MAYHEM, P. J., consurs; HERRICK, J., not acting.


author: PUTNAM, J. HERRICK, J.

text:
    John F. Buhrmaster, Resp’t, v. Nelson Ainsworth, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Landlord and tenant—Eviction—Damases.
    Where a tenant brings an action against a landlord for entering into a part of the demised premises and wrongfully placing therein property of his own, which the tenant will be compelled to remove, the tenant, if he does not seek to recover the rental value of the premises, may be allowed what it will necessarily cost him to remove the property so wrongfully placed on his premises by the landlord. So held, where a landlord wrongfully entered on the leased premises and filled with ice an ice house which . the tenant was preparing to fill; and in such case, it Was held that the tenant could not recover either for services in procuring men to fill the ice house and in notifying them, after the eviction, not to come, or for the difference in value at the time of the eviction and at the time of the trial, . of ice sufficient to fill the house.
    Appeal from a judgment of the county court, modifying a judgment rendered by a justice of the peace in favor of plaintiff by reducing the amount of damages.
    Frank Cooper, for app’lt;
    Jacob W. Clute, for res’pt.
   PUTNAM, J.

An erroneous rule of damages was adopted in the lower (justice’s) court. Plaintiff’s action was to recover for the wrongful entry of defendant, his landlord, on the 12th of January, 1895, on premises leased to him, taking possession of an ice house the'reon, and filling it with ice. The action was commenced on the 7th day of February thereafter. Plaintiff produced evidence showing that when evicted he was about.to fill "the ice house, and he recovered $3 for services in procuring men to do the work and notifying them not to come after his eviction. Pie was also allowed $5 for the difference in value of ice sufficient to fill the building at the time he was so dispossessed and the time of the trial; and $10, the estimated cost of removing the ice placed in the liouse by defendant. It did not appear that plaintiff had removed such ice or replaced it. It is well settled that damages which can be allowed in a case like this is limited to such as may be supposed to have entered into the contemplation of the parties in making the contract, and such as flow naturally from the violation of the agreement, and are certain in their nature. Speculative profits and accidental and consequential losses are not recoverable. Under the rule so stated, it does not require a discussion to show that it was error to allow the first two items, above specified, as damages. Ordinarily, the damage for an eviction is the rental value of the premises, less the rent reserved. Dodds v. Hakes, 114 N. Y. 261-265; 23 St. Rep. 192; Drucker v. Simon, 4 Daly, 53; Chatterton v. Fox, 5 Duer, 64; Giles v. O’Toole, 4 Barb. 261. But in such a case as this, where a tenant brings an action against his landlord for entering into a part of the demised premises, and wrongfully placing therein property of his own, which the tenant will be compelled to remove,—in fact, for a temporary eviction or trespass,—if such tenant does not seek to recover the rental value of the premises, I see no objection to his being allowed what it will necessarily cost him to remove the property so wrongfully placed on the premises by the landlord. In such a case he elects to retain the premises and recover damages as for a trespass. It followb that the item of $10 allowed plaintiff can be sustained.

The judgment should be modified by striking out the two items of $3 and $5, and, as so modified, affirmed, without costs to either party.

MAYHAM, P. J., concure.

HERRICK, J.

(dissenting). I think the item of $10 should also be struck out. There is nothing in the case to show that siich expense will be necessarily, or evenly properly, incurred. And the judgment should be modified, with costs of this appeal to appellant.


author: PUTNAM,J.

text:
    Charles H. Sherman, Resp’t, v. Billings, King & Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    Saxe—Wabbanty—Damages.
    The vendee, in an action for breach of warranty upon the sale of goods by him to be used in doing work for a third person, cannot, recover against the vendor on mere proof of damages to property of such third person, but he must establish also damage to himself resulting therefrom.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.
    P. O. & F. L. Eckerson (H. A. Howard and C. H. Sturges, of counsel), for app’lt;
    James H. Bain, for resp’t.
   PUTNAM,J.

The plaintiff, in the spring of 1892, being engaged in the business of finishing and painting wagons for W. B. riages, dnd having a contract to finish nineteen wagons for W. B. Griffin, or his successor, the Glens Falls Buckboard Company, purchased of defendant two gallons of liquid wood filler, which its agent warranted was a good filler for finishing wagons." Plaintiff, relying upon the representation and warranty of defendant, took the filler, and used it upon the nineteen wagons of said Griffin during the spring of 1892. The filler was not as warranted. When the wagons on which it was used came in contact with water, it scaled off, and left the bare wood exposed. It became necessary to paint the wagons. Evidence was given to the effect that seventeen of the nineteen wagons of Griffin’s were single and two of them were double. If properly finished, they would have been worth $175 for the singles and $350 for the double ones, and after defendant’s filler was used on them they were not worth half as much. The action was brought by plaintiff to recover damages for the breach of warranty of defendant on the sale of the filler. The complaint alleged the facts above set out, and also that before the commencement of the action the Glens Falls Buckboard Company had brought an action r gainst plaintiff for damages of said wagons in consequence of using said filler; that due notice of the commencement of said action was given to defendant, and also a request for it to defend the same; defendant neglected to pay any attention to said action, and plaintiff did defend the same; -that judgment was duly awarded against plaintiff therein for $500 damages and-$82.87 costs. Defendant, in its answer, denied any knowledge or information sufficient to form a belief as to the allegations in the complaint in regard to the action of the Glens Falls Buckboard Company, or the rendering of a judgment therein against plaintiff. The trial court held that the plaintiff was entitled to recover as damages the difference in value between the wagons as they were with this filler on them and what their value would have been if the filler had been as recommended. But he reduced the recovery to the amount of the judgment above referred to; that being the amount claimed in the complaint. Although the allegations contained in the complaint in regard to the rendition of a judgment in favor of the Glens Falls Buckboard Company for $582.87 for damages on ac- • count of using said filler were denied in the answer, no proof was given on the trial of the recovery of such judgment. In fact the judgment was not referred to by either party until after both had rested. The defendant then moved to dismiss the complaint on the following, among other, grounds:

“There is a fatal variance between the complaint and the proof, in that the complaint alleges a contract between the plaintiff and the Glens Falls Buckboard Company, in and by which he contracted to do work, and did do work, upon nineteen carriages, .—the carriages mentioned, I suppose, in the proof; in that they allege a judgment by the Glens Falls Buckboard Company against Mr. Sherman for damages to the nineteen wagons, and a notice to the defendant to defend, and a recovery in that action against the plaintiff.”

The trial court denied the motion to dismiss the complaint, and directed judgment in favor of plaintiff for the amount of the judgment set out in the complaint, with interest, to which direction the defendant duly excepted.

The plaintiff having alleged as special damages the recovery of the said judgment against him by the Glens Falls Buckboard Company, and that allegation having been denied in the answer, I think the objection to a recovery interposed by defendant as .above set forth should have been sustained. The recovery of the judgment so denied in the answer was not admitted upon the trial by defendant. As we have seen, it was not mentioned until the close of the testimony, when the defendant objected to a recovery by plaintiff on the ground of a fatal variance between the complaint and the proof, in that the complaint alleged a judgment by the Glens Falls Buckboard Company against plaintiff. Of course, the variance referred to was the failure of plaintiff to prove the judgment which he had alleged in the complaint as special damages. In the absence of proof of the recovery of the judgment alleged in the complaint, it is difficult to understand on what theory a verdict could be directed for the amount of the said judgment, including $82.87 costs. I infer, however, that the trial judge was of opinion that the plaintiff, notwithstanding the allegation in the complaint in. regard to the judgment, was entitled to recover such damages as he proved on the trial he sustained in consequence of the defective filler, irrespective of the judgment, such damages being the difference in the value of Griffin’s wagons treated with the filler in question and their value if properly finished. Such damages, as shown upon the trial, under the ruling of the judge, exceeded the amount of the judgment as alleged in the complaint. In directing a verdict for the amount of the judgment as so alleged, I conclude the judge intended merely to reduce the amount of the damages he held the plaintiff was entitled to recover to the amount claimed in the complaint. It becomes, then, necessary to determine whether the rule of damages adopted by the trial court was correct. Plaintiff had a contract with Griffin to finish nineteep. wagons, and bought the two gallons of defendant’s filler to use in doing the work. In consequence of the filler not answering the warranty, the wagons of Griffin were damaged. The court held that plaintiff’s damages were the amount of the damage to Griffin’s wagons in consequence of the defective filler. I am unable to see how an injury to Griffin’s wagons damaged plaintiff unless he was compelled to pay Griffin for such injury. Plaintiff’s damages in consequence of defendant’s breach of warranty was the injury he actually suffered in nonsequence of such breach; for instance, if Griffin had refused to pay plaintiff for his labor in consequence of the defective filler, or he had-been compelled to refinish the wagons, or if it had been shown that Griffin obtained a judgment against plaintiff. But . mere proof of damage to Griffin’s wagons in consequence of the defective filler was not, as the court held on the trial, sufficient to sustain plaintiff’s claim. It was shown on the trial that the filler was shipped to and paid for by Griffin. The second gallon was ordered, as well as paid for, by him. Under the evidence in this case, the court or jury could have very well found that the filler was used on Griffin’s wagons by 'his consent. They could have found that under the contract between plaintiff and Griffin, although the former was to finish the wagons in a good and workmanlike manner, he was to finish them with defendant’s filler. If the court or jury had so found, as they could have from the evidence, Griffin had no claim against plaintiff for damages; and, so far as the evidence shows, plaintiff suffered no-injury in consequence of the breach of warranty of defendant. Had the plaintiff shown the recovery of the judgment alleged in the complaint by the Glens Balls Buckboard Company (the successor of Griffin), he would have shown that he sustained damages in consequence of the breach of warranty of defendant. I do not think that mere proof of damage to Griffin’s wagons alone was sufficient to justify the judgment.

But if we assume that the rule of damage adopted below was correct, I think the trial court, in excluding evidence offered by defendant, inadvertently fell into an error which requires a reversal of the judgment. Griffin was called as a witness by plaintiff, and, among other things, testified that he did not believe that he got for the wagons much more than half what the wagons-would have been worth if properly finished. On the examination of the witness by defendant the following question was asked and ruling made, viz.:

“Q. At what price did you sell those nineteen wagons? (Objected to as immaterial and incompetent, and not affecting the measure of damages. Objection sustained. Defendant duly pxcepted.) By the Court: He may have sold them for more or less than they were worth. If he sold them for more than they were worth, that is not yours, it is his.”

I think this ruling was a material error. The question was proper on the cross-examination of the witness. Also the price at which the wagons were sqld was some evidence of their market value. But the question to be determined was, what was Griffin’s damage in consequence of the defective filler? the trial court holding that the amount of Griffin’s was the measure of plaintiff’s damages. The single wagons, properly finished, would have been worth $175 each, and the double ones $350. Suppose Griffin had, in fact, sold all the wagons for the prices above specified, notwithstanding their defective finish, I should say that in fact he suffered no damage. The trial court, however, held the contrary. He determined that if in fact he sold every wagon for the sum it would have been worth if properly finished, yet his damage was to be measured by the actual value of the wagons as they were with the defective filler on them, and hence he sustained the objection to the question above set out, asked by defendant of Griffin. The rule of damages, in a similar case, has been recently passed upon by the court of appeals in Wait v. Borne, 123 N. Y. 592; 34 St. Rep. 344. That was an action to recover for an alleged breach of warranty on the sale of crtain oil to-be used in carpets by the plaintiffs, and which it was claimed did not answer the warranty. A portion of the carpets had been sold. It was held:

“That the proper rule of damages in such a case would generally be the difference between the market value of the carpets as they would have been if the oil used in their manufacture had been equal to the warranty and their value as they were. But, in case the plaintiffs sold any of them for more than their market value, after knowledge of the vicious quality of the oil, and under circumstances leaving no liability on their part to the purchasers, the measure of damages would be the difference between the price received and the value of the carpets as they would have been if the oil had been as recommended.”

In the case under consideration the wagons had been sold after Griffin knew of the defective character of the filler; and as the defect was, as I judge from the evidence, apparent on inspection of. the wagons, it is not to be presumed that Griffin incurred liability to purchasers on the sales. Hence defendant should have been allowed, under the above authority, to show the price Griffin received for the wagons.

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

HERRICK, J., concurs; MAYHAM, P. J., dissents.


text:
    People ex rel. Frederick A. Stokes Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Taxes—Corporations—Exempt.
    A corporation, part of whose business is to buy and sell goods not manufactured by it, is not wholly engaged in manufacturing within the state so as to exempt it from taxation.
    2. Same—Time of settlement.
    The comptroller may settle an account for taxes after January 15th in the year in which such tax becomes due.
    8. Same—Valuation.
    The valuation by the comptroller will not be disturbed unless clearly erroneous.

      Certiorari to review an assessment.
    James W. Eaton, for relator;
    T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Dep. Atty. Gen., of counsel), for resp’t.
   PUTNAM, J.

Relator was incorporated in April, 1890, under the provisions of an act of the legislature passed on the 17th day of February, 1848, entitled “An act to authorize the formation of corporations for manufacturing, mining, and mechanical purposes,” by making and filing the certificates required by the statute. The certificate stated the objects for which the company was formed as follows, viz.:

“To carry on the business of printing, publishing, and selling books, pamphlets, pictures, engravings, photographs, and prints of all kinds, and newspapers, manufacturing, buying, and selling stationery and stationery articles, writing materials, objects of árt, and ornaments of all kinds, and to do any and all business connected with or appertaining to a general printing, publishing, and bookselling business.”

It will be seen that relator, by' its charter, was not only authorized to carry on the biisiness of printing, publishing, and selling books, pamphlets, pictures, engravings, and photographs, but also was empowered to buy and sell stationery and other articles, and to do any and all business connected with or pertaining to printing, publishing, and book-selling business. The evidence shows that the particular business actually carried on by relator since its incorporation has been the publishing, printing, and selling books. It has been held that a corporation, engaged in such a business is a manufacturer. Evening Journal Ass’n v. State Board of Assessors, 47 N. J. Law, 36-42. Assuming the doctrine stated in the case cited to be correct, relator since its incorporation has been engaged in carrying on a manufacturing-business. And is was such although, in printing and publishing books, relator employed contractors to perform portions of the work. The testimony of the witness Foster shows that the relator, although contracting with other parties to do the printing, binding, and other-portions of the work on the books it published, yet that much of the work necessary to produce and manufacture such books was done by relator or its employes. We think the evidence of the witness named shows that the books published by relator were in fact manufactured by it, and hence should be inclined to believe, if it appeared that the printing, publishing, and selling of books was the only business relator had been engaged in since its incorporation, that it was not liable for the tax imposed on it under the provisions of chapter 542, Laws 1880, and acts amendatory thereof.

But, under the provisions of that act, relator is liable to taxation on its franchise or business unless wholly engaged in carrying on a manufacturing business. It appears that outside of its business of printing, publishing, and selling books, relator, each year since its incorporation, has been engaged in buying and selling foreign books, and has invested in that business yearly the sum of $11,000. It is impossible, therefore, to say that, during the years for which the comptroller imposed a tax on relator, under the provisions of the act of 1880, it was wholly engaged in the business of manufacturing. As it appears that during the period mentioned it also used a portion of its capital for the purchase and sale of foreign books, it was, therefore, liable to the tax .imposed upon it. People ex rel. Tiffany & Co. v. Campbell, 144 N. Y. 166; 63 St. Rep. 44. The fact that relator’s principal business was printing, publishing, and selling books, and that only a small part of its capital was used in the purchase of foreign books, does not render tor was $3,000,000, and the yearly amount expended in the pur - chase of goods not manufactured by the firm was only $300,000. In this case the capital of the corporation is $105,000, and the amount expended each year in the purchase of books not manufactured by the company was $11,000. In the opinion of Andrews, J., in the Tiffany Case, it is not suggested that Tiffany & Co. were exempted from taxation under the act of 1880, except for that part of its capital employed in buying and selling goods, on the ground that the amount used in that way was inconsiderable as compared with the amount of its capital. He places such exemption of the corporation on the ground that the purchase and sale of the goods was not within its corporate powers,'and says:

“The statute was not aimed at, and did not contemplate the exercise by, a corporation of powers ultra vires. If a manufacturing corporation is engaged in business outside of its corporate powers, in connection with its manufacturing business, it does not cease to be ‘wholly engaged’ in the business of manufacture; that is to say, its only legal and authorized business was that of manufacture. It-subjected itself to taxation upon that portion of its capital so used, but nevertheless it remained a corporation which, so for as it exercised its legal powers, was ‘wholly engaged’ in manufacture, and, therefore, entitled to exemption as to its manufacturing business.’ ”

In the case under consideration the purchase and sale of books was within the corporate powers of the company. The business it did during the years in question of manufacturing, as well as of buying and selling foreign books, was authorized by its charter. Hence it was not, during said years, wholly engaged in the manufacturing business, and the comptroller did not err in imposing the tax of which relator complains. People ex rel. Western E. Co. v. Campbell, 145 N. Y. 587; 65 St. Rep. 526.

It is claimed that the comptroller had no right to settle an account for taxes after the 15th day of January in the year when such taxes become due and payable. It is sufficient to say, in regard to this position, that the same claim was made in the Tiffany Case (see points of appellant, 144 N. Y. 168; 63 St. Eep. 44), and necessarily overruled by the decision in that case. See, also, People ex rel. Western E. Co. v . Campbell, 145 N. Y. 587; 65 St. Rep. 526. In the case last cited Bartlett, J., in his opinion, says:

“It is the established rule, settled by repeated adjudications of the court, that the determination of the comptroller must stand upon the question of valuation, unless clearly shown to have been erroneous.”

Under the rule so stated we think relator did not show error on the part of the comptroller in the valuation made of its capital stock.

The determination of the comptroller should be confirmed, and the certiorari quashed, with $50 costs and disbursements.

MAYIIAM, P. J., concurs; HERRICK, J., dissents.


author: RUSSELL, J.

text:
    People ex rel. T. Martin Bros. Manufacturing Company, Pl’ff, v. Edward P. Barker et al., as Commissioners, etc., Def'ts.

      (Supreme Court, New York Special Term,

      Filed November, 1895.)

    Taxes—Eohbesident.
    Goods, manufactured by a nonresident in the state of his residence and kept in New York for sale, are taxable in this state.
    Certiorari to review an assessment on relator’s property.
    Elliott, Powell & Booth, for relator;
    John H. Ward, for commissioners.
   RUSSELL, J.

The relator seeks to vacate an assessment of $10,000 made by the commissioners for the purposes of general taxation in the year 1894 in the city of New York. The ground upon which the writ of certiorari was based is that the relator is a foreign corporation, and has no money or property invested in the state of New York. During the review period, application was made to the commissioners to vacate the assessment; and the return shows that evidence was taken by which it appears the relator is a foreign corporation created under the laws of the state of Massachusetts, with its principal place of business and manufactory located in that state. It has in the city of New York a place for the sale of goods at 108 Worth street, and continuously keeps on hand at that place goods of its own manufacture for sale to the amount of at least $10,000; and it also admits “that the" amount of the capital stock of the said company which it has invested in business in the city of. New York, including its office furniture, safes, samples, and fixtures, and money used in the transaction of the business, will not exceed the sum of $500.” The statute applicable provides:

“All persons and associations doing business in the state of Yew York, as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said business the same as though they were residents of this state, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong.”

It seems apparent that the sums invested in the office furniture and fixtures would be taxable within this state, and come within the strict reading of the statute, as taxable property, but the more serious question is whether the goods kept for sale are hable to assessment and taxation. Yo authority has been cited to me which exactly covers a case like the present, and I find it necessary to go back to the apparent object and purpose of the statute, to determine the legal question here involved. It is apparent that the legislature, in framing a scheme of taxation as it exists at the present day, intended that those who did business in the state of Yew York with capital here invested for that purpose, and who necessarily seek and rely upon the protection of the government for the security of their dealings and property, should bear their just share of the burdens of taxation, which share is measured by the extent of the pecuniary interest located here. There is no reason why the nonresident so doing business should be exempt from taxation, while his next-door neighbor, with the same amount of property, and doing the same amount of business, should bear the burden alone, as between the two. The nonresidents seek the advantages of .business opportunities which the state of Yew York affords him, as well as protection under its laws. All of the considerations which go to make up the scheme of taxation for paying those necessary sums of money needed to maintain the security of law shielding business operations apply to the one case as forcibly as the other. Why, then, should the nonresident corporation be exempt? Because it is claiméd that their principal place of business and manufactory, where they keep their general books of account, is in another state? Their sales of Yew York property are made through their office in Yew York. They must keep there the necessary adjuncts to carry on business, including storeroom, furniture, and such books of account as are necessary to keep a proper record of the Yew York business, although they may forward the results of their business to the main office, outside the state, to be there inscribed as a part of the general business of the corporation. The stock kept in Yew York requires the investment of the sums of money paid for material and labor and transportation to produce the goods, and although those goods were sold, so that the specific articles may be changed from day to day, the body of the investment remains, acquiring here in Yew York such a good will for the business and profits therefrom as to make the maintenance of that business acceptable to the corporation, as evidenced by its continuance for years. I think the investment here comes fairly within the scope and meaning of the statute, and therefore must quash the writ of certiorari, with costs.

Certiorari quashed, with costs.


author: GAYNOR, J.

text:
    Mission of Immaculate Virgin, Pl’ff, v. Michael Cronin, Def't.

      (Supreme Court, Queens Special Term,

      Filed November, 1895.)

    1. Ejectment—Possession.
    Possession under claim, of title is sufficient to maintain ejectment against an intruder.
    2. Same.
    A person, who goes on a small parcel of land which cannot be fenced because of the shifting sand, plgces monuments to'mark the boundaries and brings lumber on it to build, has such possession as will sustain ejectment.
    Action to recover possession of land.
    Edward Swanton and John J. Macklin, for pl’ff;
    Abner C. Thomas, for def’t.
   GAYNOR, J.

The complaint designates the land in dispute as lots four and five on the original map of beach lots at Far Rock-away, in Queens county. The survey put in evidence shows it to be a strip of beach land along the Atlantic Ocean, about 1,300 feet front and 900 feet deep. The evidence shows it to be, in the main, covered with small cedars.' The plaintiff put in evidence a conveyance of it by Benjamin C. Lockwood, Jr., and Elizabeth Carroll, his mother (her second husband also joining), to Charles Donahue, dated January 28; 1869, also a conveyance of it by Donahue to the plaintiff, dated Japuary 6, 1881. This is all of the plaintiff’s evidence of paper title, except the will of Benjamin Cornwell, dated and probated in 1821. He was the great grandfather of Benjamin C. Lockwood, Donahue’s principal grantor, who' claimed the land through the said will, as his deed'recites. Such recital is evidence of the claim of title under which he exercised dominion over the property. McRoberts v. Bergman, 132 N. Y. 73; 43 St. Rep. 559. It was shown by oral evidence that the grandfather of the said principal grantor to Donahue had the land in question bounded by stakes, claimed to own it, and went upon it continuously and frequently, and cut and took off cedars for posts and fuel. His son also kept it marked by stakes, and used it in the same way. It was generally known and recognized as his, being called, after his name, “Ben Lockwood’s Oedars>” Charles McHeil, under whom the defendant pleads that he claims, always so called it. Ben Lockwood’s son, the present Benjamin 0. Lockwood, kept and used it in the same way until he conveyed it to Donahue. Hundreds of cedars were taken off by him every year, and every one else who attempted to take any were stopped by him. He lived in the township, about two miles away, as did his ancestors; and the evidence will sustain a finding that they continually used the land in the way stated, and kept watch and guard over it, and controlled it, to the exclusion of all others, and were generally recognized as the owners. "When Donahue took his conveyance, in 1869, he also had it marked about by stakes, and cut and took away cedars from it frequently every year, and went upon it frequently, and kept watch over it. He also lived in the vicinity. The land could not be fenced, on account of the blowing and shifting of the sands. It was kept and used in the only way it could be kept and used. "When the plaintiff took its conveyance, in 1881, it entered, and put stone monuments around the property, and brought lumber upon it to build. Afterwards the defendant entered. The aforesaid care, use, and claim of ownership of the property had been continuous for sixty years, under the proof, and by fair inference much longer, before the entry of the defendant. The plaintiff rested upon the foregoing evidence.

The defendant answered that Charles McUeil is the owner of an undivided interest in the land in dispute, and that the defendant peaceably and quietly entered into possession, and holds as the tenant of said McNeil. He put in evidence the record of a partition by suit of a large tract of beach in 1809, in which the land in dispute was set off as the said lots four and five to Thomas Bannister, in the right of Rachel, his wife. But this record has no bearing in the case, as the defendant did not connect himself with the Bannister title. In fact, he made no attempt to do so, though the trial was adjourned to the next day to enable him to. Upon the last trial it was stipulated that “the partition suit is the common source of title,” and under the authorities that stipulation still subsists, though objected to by plaintiff. But it is of no effect on this trial, because neither side connected itself with the' said partition. The record of another partition action, commenced after this action, was put in evidence by the defendant, but neither did he connect himself with'it. The sole question, therefore, is whether the plaintiff has made out sufficient title to maintain an action of ejectment. If the possession necessary to sustain an action of ejectment be such as would, if continued long enough, make a title by adverse possession, it may be that the plaintiff cannot recover. But I have never understood such a strict possession to be necessary, and it has been held not to be (Hunter v. Starin, 26 Hun, 529), while I do not think there is any case in this state directly to the contrary, and this question was not in the. case in the former disposition of it. The facts proved in the. eases of Miller v. Railroad Co., 71 N. Y. 380; Thompson v. Burhans, 79 id. 93; and Price v. Brown, 101 id. 669—fall far short of the acts of possession shown in this case. The case of a vast tract of uncleared land is very different from this case. Here the fact of possession and control is easy to make out, owing to the size of the plot. One person could stand in the middle of it, and watch and guard it. If some one having no title should forcibly eject him, would he not, by virtue of his prior possession, be able to maintain ejectment to regain his possession? If one having no title go upon an unfenced city lot, and bring lumber upon it to build, and another, who has no title, either actually force him off, or take unopposed possession during the night or while he is absent at dinner, it seems to me as against him the second occupant is an intruder, and that he may maintain an action of ejectment against him, although his prior possession was not such as would have ripened into an adverse title. It seems to me that the actual going upon a piece of land the size of this, and like this, in that it could not be fenced, and putting stone monuments around it, and bringing lumber upon it to build, it, in itself, the taking of full possession of it.. Mor should the question here involved be confounded with the question of the presumption of a grant. That presumption arises only in the case of an adverse possession long enough continued to make a title, unless it may arise, in an exceptional case (Roe v. Strong, 119 N. Y., at page 322; 29 St. Rep. 504), where a strict possession-is impossible. In an action of ejectment where a paper title is not produced, and a title by adverse possession is not made out, the question of such presumption does not arise. The plaintiff may concede there was no grant,- for prior possession under claim of ownership is enough to maintain ejectment against one claiming right of possession only under a later possession. Day . Alverson, 9 Wend. 223; Mayor, etc., of New York v. Carleton, 113 N. Y. 284; 22 St. Rep. 625; Newell, Eject, c. 13, § 14.

This case was decided in the court of appeals, after the first trial, solely upon the propositions (1) that both sides claimed title from a common source, viz., the partition of 1809; (2) that the defendant was in possession “as lessee” of a descendant of the Bannisters, to whom the land in dispute was allotted in such partition; (3) that, therefore, the plaintiff, having no paper title, had to make out title by adverse possession, but that its proof was insufficient for that purpose, or to raise a presumption of a grant to the plaintiff or its predecessors. Mo such case as this is now presented. The claim of the defendant that he is connected with the Bannister title, as lessee, was not made out on the present trial. The defendant was not, therefore, put to any proof or claim of title by adverse possession, or to the presumption of a grant, which is the same thing. The plaintiff now makes no claim of title by adverse possession, or by presumption of a grant, if these two things may be separated. That they cannot be is plainly stated by the court of appeals in disposing of this case when it was before it. Its opinion says:

“If, upon such facts as exist here a grant could be presumed, it would be easy for a claimant to land to get around the careful provisions of law as to adverse possession. If he failed to show facts sufficient for adverse possession, he could yet use the same inadequate facts to raise a presumption of a grant.”

The decision of the court of appeals proceeded upon the statement that the defendant was lessee under the Bannister title. That was acquiesced in, and accepted as the fact. That put the plaintiff to proof of a paper title, or else of title by adverse possession. The case now stands upon a finding of fact that the defendant is not connected with the Bannister title, but is an intruder, and claims under his possession alone. The question upon which the case is now decided was not before the court of appeals, or considered by it. TJnder the then acceptance as fact that the defendant was lessee under the Bannister title, the plaintiff claimed title by adverse possession, and failed. Under the present finding of fact that the defendant is an intruder, and claims under his naked possession only, the prior possession of the plaintiff enables it to prevail, regardless of whether there be an outstanding title. That defense is not open to an intruder. Jackson v. Harder, 4 Johns. 211; McRoberts v. Bergman, 132 N. Y. 73; 43 St. Rep. 559; Whitney v. Wright, 15 Wend. 172. A much stronger case of possession was made out in this case than in Roe v. Strong, 107 N. Y. 350; 12 St. Rep. 56; id., 119 N. Y. 316; 29 St. Rep. 504. The allowing of a presumption of a grant in that case was upon the fact that the property was not capable of “a technical adverse possession,” and that the plaintiff and his predecessors had exercised over it all the acts of ownership “which, considering the nature and situation of the property, could be exercised.” The rule in respect to adverse possession could not have been contemplated for such property. I do not see how that case can be fairly distinguished from - this. There was no constructive possession there, any more than here, for the land there in dispute was not embraced in the deed of the upland to the plaintiff. Judgment for the plaintiff.


text:
    William R. Woodbridge, Pl’ff, v. William D. Marks, Def't.

      (Supreme Court, St. Lawrence Special Term,

      Filed November, 1895.)

    1. Animals—Pleading.
    The complaint, in an action for injuries inflicted by defendant’s dog, need not allege any active participation by the defendant in the injury, or any act of negligence on his part.

      % Same—Presumption.
    When a fierce, vicious, dangerous animal, accustomed to bite mankind, attacks and wounds a human being, the presumption is that the dog is the aggressor and the offender, which presumption may be rebutted, but, without rebutting proof, must be acted upon as well founded.
    Demurrer to the complaint.

      McLaughlin & Rowe (John C. Keeler, of counsel), for pl’ff;
    Hand, Kellogg & Hale (R. L. Hand, of counsel), for def’t.
   RUSSELL, J.

The defendant demurs upon the merits to the complaint. The complaint avers-that the defendant wrongfully kept several fierce and dangerous dogs, well knowing them to he ferocious, vicious, and of a mischievous disposition, and accustomed to attack and bite mankind; that on the 10th day of May, 1895, the said dogs, or some of them, while in the keeping of the defendant, as aforesaid, attacked and bit the plaintiff, and severely wounded him. It will be observed that no allegation is made, in addition to the statements of fact the character of the dogs and their maintenance by the defendant, of any active participation by the defendant in the injury, or of any act of negligence on his part. Is it necessary to add an allegation of this character to the complaint -in order to justify recovery? There has been much discussion in the books as to the standing of the dog, both as to the right of ownership in him and the limitations under which he may be kept and used. He has become now, if he had not before, a recognized article of property, and adopted from the wild state into that of ferae domesticae. As a pet, companion, watch dog, or herder he has his uses, sentimental or otherwise. Eor his courageous and faithful qualities he has been admired by all walks of mankind, and immortalized by eminent writers. More than 300 years before the Christian era, Socrates said of him, “When I see some men, I love my dog the more,” and early in the present century Lord Byron wrote of him:

“But the poor dog, in life the foremost friend,
The first to welcome, foremost to defend.”
And'again:
“ ’Tis sweet to hear the watch dog’s honest bark
Bay deep-mouthed welcome as we draw near home.”

At the present day this animal is one of those which are protected by the philanthrophy of the society which believes and maintains that the lower animals should be shielded from cruelty as well as the human animal. He is thus recognized as entitled to his proper place in the economy of civilization. But what is that place? The answer to this inquiry may solve not only the rights of the .animal himself as a dog, but also the rights of his owner to use and keep him. One of the ablest of the opinions in the jurisprudence of this state upon this subject is written by the late Justice W. E. Allen as far back as 1856, in the case of Wiley v. Slater, 22 Barb. 506. In that ease the defendant had a dog evidently of superior ability in'the fighting line to that of the dog owned by the plaintiff, so that in a fierce contention upon the merits of the respective animals the defendant’s dog succeeded in depriving the plaintiff’s doe: of his existence. Being a supposahly valuable doa\ the plaintiff sued the defendant, and recovered for the value of his dog. It became, therefore, necessary for the general term, upon an appeal being taken from the affirmance by the county court of the justice’s judgment, to determine whether, prima facie, the fact of the killing justified the recovery, there being no evidence as to which dog was originally the aggressor. Justice Allen frankly confessed his incompetency to speak by authority of the code duello of dogs. He recognized, however, and judicially adopted the poet’s commentary on the nature of dogs:

“That dogs delight to bark and bite,
For Q-od hath made them so,”

—And judicially announced the rule that, when dogs fight in pursuance of their disposition to do so, the mere killing of one dog by another does not justify a recovery, and that the owner of the slain dog it entitled only to the salvage, consisting of the skin of the deceased. He, however, limits the application of the rule laid down by him by the statement that there was no proof in the case that the dog triumphant was of a vicious or dangerous disposition, and the implication fairly is that, if this kind of a character had been proven to exist in the surviving dog, the trial court might have been justified in its judgment. This was a case to determine the responsibility of the owner in a controversy between dog and dog. The rule should be stronger as against the owner of the offending animal where the victim of the propensities of the dog is a human being. Conceding the highest place here or hereafter to this companion of man which is claimed by any one, even to the faith of the Indian:

“That in the happy hunting grounds His faithful dog shall bear him company,”

—Still in the walks of life he must give way to the interests of man. Whether this be so or not, as a question of pure ethics, it is so recognized by man-made law in courts administered by man. As against the dog, man has the right of way. It is not a presumption of law or fact that a human being is of a fierce, vicious, or dangerous disposition. It is as yet the belief of mankind, recognized and acted upon, that the ordinary nature of human beings has the proper elements of kindness and justice. It therefore seems to be a necessary deduction that when a fierce, vicious, dangerous animal, accustomed to bite mankind, attacks and wounds a human being, the presumption is that the dog is the aggressor and offender, which presumption may, of course, be rebutted, but, without rebutting proof, must be acted upon as well founded.

Starting with this presumption, as between the dog and the man, that the facts stated show the dog to be in the wrong, what is the presumed liability of the owner? It is an undoubted fact that owners have a right to keep fierce and dangerous dogs for the protection of their premises, if so guarded that they will inflict no injury, except in unusual emergency, which justifies their resort to nature’s weapons in defense of their master’s belongings. Such a state of facts may well be a justification to the owner as well as the dog. But it is not to be presumed without proof, and therefore, upon the ground that where a fierce, vicious, and dangerous dog, accustomed to bite mankind, known to be such by the owner, attacks and wounds a human being, the burden lies upon the master to show the provocation or excuse, this controversy is decided. The demurrer in this case is overruled, with costs, with leave to answer within twenty days on payipent of the-costs.

Demurrer overruled, with costs, with leave to answer.


author: MAYHAM, P. J.

text:
    Charles H. Judson, Resp’t, v. Central Vermont Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 3, 1895.)

    1. Negligence—Contributory.
    Where a person acts with the full knowledge of the manner in which a railroad is operated at a certain point, he is charged with more than an ordinary degree of care in approaching and crossing the track at such point, to avoid serious and fatal consequences to himself, as well as injury and hazard to the company running over this track.
    2. Same.
    Where, upon the question of contributory negligence, there is such a reasonable doubt as that different minds looking at the same circumstances might reach different conclusions as to the negligence or the absence of negligence of the party, the question should be submitted to the jury.
    3. Same.
    The duty of a person in approaching a dangerous crossing is not performed even by looking each way, especially where he attempts to cross in a dark night; he must listen as well as look, and his failure to do that, or his producing a condition, such as the rattling of his own wagon, to prevent hearing the approaching train, is such an act of negligence as brings him within the rule of the adjudged cases.
    Appeal from a judgment entered on a verdict in favor of plaint-tiff, and from an order denying a motion for a new trial, made on •yyyi'yin tfifi
    Louis Hasbrouck, for app’lt;
    Claffin & Dodge (N. M. Claffin and C. A. Kellogg, of counsel), for resp’t.
   MAYHAM, P. J.

The case discloses that on the 2d of November, 1893, at about 6:30 o’clock, the plaintiff, while driving a team, hitched to a heavy lumber wagon, on Main street, in the village of Norwood, across the track of the defendant’s railroad, which, at that point, crosse's Main street at right angles, was hit by the rear end of a freight car attached to a freight train, and which was being backed across the street, and thrown from his wagon and injured. The railroad track at this point seems to constitute a part of the defendant’s railroad yard for making up trains of cars, to be forwarded over its track, and also over the track of the Rome, Watertown & Ogdensburgh Railroad, the junction of which two roads is at or near the village of Norwood. The track of the defendant’s railroad at this point was substantially a Straight line, as is also Main street, in the village of [Norwood, which crosses the railroad at that point. The plaintiff approached the railroad track on Main street from the south, and, at the point of approach, the view of the railroad on either side of Main street was obstructed by buildings until within about forty feet of the track, from which point the railroad track was in plain view for a long distance on either side of Main street. The plaintiff approached the railroad, and, at the time of his approach, there was an engine standing upon the track, about 150 feet west of the street, with its headlight shining easterly, throwing its reflections of light over and across Main street at that point. The train, the rear car of which collided with defendant’s wagon, was backing in a westerly direction from the railroad station, which is located east of Main street, and consisted of several freight cars attached to the engine being backed across Main street to a point westerly therefrom, for the purpose of being hitched or attached to other freight cars to make up a train. The plaintiff was seated on planks resting upon the bolsters of his wagon, there being no box upon the wagon, and was facing west as he approached the railroad, with his feet hanging off of the platform on which he was seated. The wagon on which he was riding made considerable noise, and his team was traveling on a trot, at the rate, as estimated by the witnesses, of from four to five miles an hour. Before emerging from the buildings on either side of Main street, he heard the'whistle of a locomotive; and on arriving at the point where he could look, and in an easterly and westerly direction, he testified that he looked both ways, saw the engine with its headlight pointed towards him, and saw lights, which he sup-posed to be lanterns, on cars on the easterly side of the crossing, but estimated that they were some distance from the crossing. He swears he heard no train moving, and saw no train which he supposed was in motion on either side of the crossing, but he did not slow his team, or stop, but continued his team on a trot, attempting to cross the trade, when, at or near the point of collision, he saw a freight car moving from the east towards the west, from which he could not escape, and by collision with which the injury was inflicted. The evidence and situation discloses that his back was towards the freight train, and that his only view of the track in the direction from which the freight train approached was by turning his head, and looking backward dowm the track. He says he saw no light on the rear car of the freight train at the time of collision, and heard no outcry from any one on that train. One or two witnesses offered by the plaintiff also testified that, at the time, of the collision, they saw no lantern or light on the rear car of the freight train, and heard no outcry. The plaintiff testifies that he was very familiar with this crossing, and had been for thirty years. This is substantially the evidence offered bv the plaintiff in support of his action. Some of the witnesses for the plaintiff estimated the speed at which the train was being backed down at from ten to twelve miles an hour. On the part of the defendant, the evidence disclbses, from the engineer and other employes, that the rate of speed at which the train was moving at the time of the collision did not exceed four miles.an hour. The defendant’s evidence also discloses that the freight train by which the plaintiff was injured consisted of several cars, on which were located three brakemen at different points with lanterns, one near the engine, one in the middle of the train, and another on the rear car of the train, that being the car by which the plaintiff wás hit; that on starting to move the train across the street, for the purpose of attaching it to other cars then in defendant’s yard, the signal used at that point, for crossing the street,, was blown, it being three blasts from the locomotive whistle; that the bell on the engine was constantly kept ringing from the time the train commenced bacldng until the happening of the collision; and the brakeman on the rear car testified that the lantern was constantly displayed by him on the .rear end of that car until the 'time of the collision, when it was put out by the concussion, and that, as he approached the crossing, he saw plaintiff approaching the track, and hallooed several times, at the same time signaling the engineer to stop the train; and the engineer testifies that he stopped the train as soon as possible after being “signaled to do so.

From these facts, which constitute substantially the facts proved, two questions are presented for consideration: (1) Did the evidence disclose any negligence on the part of the defendant, which caused the injury complained of? (2) Did the plaintiff; by his proof, establish freedom from contributory negligence?

Upon the question of defendant’s negligence, there seems to be such a conflict in the evidence offered by the plaintiff and defendant as properly to present a question of fact for the jury, as to whether or not the defendant was guilty of negligence. The case discloses that the crossing at which this accident occurred was the principal thoroughfare in an active country village; and while the defendant, by its charter, and under the law of the state, was fully authorized to operate its railroad at that point, it is apparent that, in the use of thh powerful and somewhat dangerous appliances and machinery necessarily used in its operation, the defendant was charged with a high degree of care, in promoting the'safety of the public, who had also a right to pass over and across its track; and if it failed in the performance of that high and responsible duty, to the injury of a person properly crossing the street, it was doubtless liable for such injury. The conflict in the evidence as to the raté of speed at which the train was moving, and as to whether or not there was any danger signal, either by lanterns or any other appliance on the rear car, as it approached this crossing, to warn travelers upon the highway of its approach, were disputed questions of fact, upon which the jury might have found in support of the plaintiff’s theory, and thus reach a conclusion that the plaintiff was guilty of negligence which produced or contributed to this injury. And, if the case stood upon that question alone, we do not see how the verdict of the jury and the judgment thereon could he disturbed on appeal. But in this class of cases, as has been repeatedly held, the plaintiff does not establish his right to a recovery upon the proof of the defendant’s negligence alone. He must go further, and prove himself free from negligence, and that he in no way contributed by his own negligence to the injury complained of. In this, we think that,x within the decision in this class of cases in this state, the plaintiff failed in his proof. He acted with the full knownedge of the manner in which this railroad was operated at this point, and was charged with more than an ordinary degree of care in approaching and crossing this track, to avoid serious and fatal consequences to himself, as well as injury and hazard to the railroad company running over this track. He knew the railroad company had rights, in some respects, as was said by the learned trial judge, superior to his own. It was confined to the limits of the steel rails that cross the public highway, and could not exercise that absolute control over its machinery and cars as could one approaching its track either on foot or with a team. It was therefore his duty, on approaching this track, with a knowledge of the fact just stated, to do everything in his power to avoid a collision. On approaching the track he was required to look.and to listen; and if prevented from listening from the noise of his vehicle, which he was riding, and, listening, could have averted the injury, it was his duty to stop, as he could, his team, and assure himself as -well as he might, both by looking and listening, that there was no danger in crossing. This, it seems to us, he failed to do; and, failing in that, he was guilty of a negligent omission, which produced this injury. It can hardly be pretended that had he stopped on approaching this railroad track, or on passing the line of vision on either side of the highway as he approached the railroad track, he would not have seen the lights stationed on the different cars, hut would have necessarily heard the rumble of the cars in time to have averted the collision. Failing to do this, it seems to us that he failed in the high duty which he owed to himself for the preservation of his own life and of his property.

It is quite true that a rule has been established that where, upon the question of contributory negligence, there is such a reasonable doubt as that different minds looking at the same circumstances might reach different conclusions as to the negligence or absence of negligence of the party, the question should be submitted to the jury; hut it can hardly he conceived that minds would differ upon the question as to whether' or not the plaintiff would have heard these cars had he stopped his team and silenced the rattling of his own vehicle; and, that being so, this case does not come within the rule above suggested.

In Bates v. N. Y. C. & H. R. Railroad Co., 84 Hun, 287; 65 St. Rep. 496, the facts disclosed were somewhat similar to the case at bar. The plaintiff’s intestate was driving a team drawing a wagon loaded with ice. He was walking at the time at the side of the wagon, with the lines in one hand, and his other hand resting upon the box. As he approached the track, he looked both ways, and continued to drive on. When he was upon the track, which was single at that place, an engine, with a pay car, struck the deceased, inflicting an injury from which he died. "Upon this proof, the trial court dismissed the complaint, holding’that the plaintiff’s intestate was guilty of contributory negligence. Dyke-( man, J., delivering the opinion of the general term, which affirmed the decision of the trial judge, uses this language:

“The deceased was walking, and thus had control of his own movements. He could stop and recede instantly, at his volition. One of the witnesses for the plaintiff testified that she saw him first when his horses’ feet were just stepping upon the track. Of course, he was then ten feet from the track. The witness waived a towel at the deceased, and said, ‘Keep hack;’ but she did not attract his attention.”

And the court adds:

“It is impossible, in view of that testimony and other facts and circumstances, to escape the conclusion that the deceased went heedlessly upon the track, and brought the calamity upon himself”

■In Fowler v. N. Y. C. & H. R. Railroad Go., 74 Hun, 144; 56 St. Rep. 307, Herrick, J., in discussing the question of contributory negligence, uses this language:

“When a person approaches a point of danger, it is his duty to-do so with care and caution commensurate with the dangers of the locality. The duty of looking and listening when one approaches a crossing of many tracks does not seem to he adequately discharged by merely looking as the dangerous point is approached, and then, when it is absolutely reached, going blindly forward.”

And the learned judge, after discussing other features of the case, somewhat similar to the case at bar, reaches the conclusion that the plaintiff’s intestate had not shown himself free from contributory negligence.

In Shires v. Fonda, J. & G. Railroad Co., 80 Hun, 92; 62 St. Rep. 4, the court says:

“The evidence shows that if, on approaching the railroad track, he (the plaintiff) had looked, he must have seen the approaching train. Had he done so,, he could, without difficulty, have avoided the collision.”

And the court holds that his failure to do so was contributory negligence, which prevented him from recovery.

In Albert v. N. Y. C. & H. R. Railroad Co., 80 Hun, 155; 61 St. Rep. 707, Herrick, J., in discussing the question of contributory negligence, says:

“It has been held in the case of travelers along the highway, approaching a railroad crossing that it is their duty to look and listen,—to look both ways for the approaching danger; that, if they fail to look, it is negligence on their part; and that if, by looking, they could see the approaching danger in time to avoid it, and still go on, they are negligent, either in not having looked, for, in looking, they must have seen the danger, or, having looked, in still going on; that the duty they owe to themselves and railroad company in such a case in approaching a point of danger is one of active vigilance.”

It will be seen from these cases that the duty of the plaintiff in approaching a dangerous crossing is not performed by looting each way, especially where, as in the case at bar, he attempts to cross in a dark night. He must bring into requisition all the faculties with which he is endowed to protect himself against injury. He must listen as well as look, and his failure to do that, or his producing a condition, such as the rattling of his own wagon, to prevent hearing the approaching train, is such an act of negligence as, we think, brings him within the rule of the adjudged cases. Under these circumstances, we think the learned judge erred in refusing to nonsuit the plaintiff, and in denying the defendant’s motion to set aside the verdict upon the minutes.

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

All concur.