text:
    Nettie A Huntley, App’lt, v. Battese Re Voir, Impleaded, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Mortgage—Covenant to assume—Land the primary fund.
    Where premises are conveyed subject to a mortgage, and the deed contains a covenant by which the grantee assumes and agrees to pay the mortgage debt, the land is the primary fund for its payment, and the grantee may pay the debt and procure therefor an assignment of the mortgage to a third person; and a judgment creditor of the grantor has no right to insist that the payment was in satisfaction of the mortgage.
    Appeal from a judgment, entered in Jefferson county, April 4, 1892, on the report of a referee.

      M. M. Waters, for app’lt; L. M Fuller, for resp’t.
   Martin, J.

This was a suit in equity to foreclose a mortgage.. The facts as found by the referee, briefly stated, were: The defendant Demas L. Grover was the owner of the premises described in the plaintiff’s complaint, and on August 5, 1889, he executed and delivered to Frank M. Weatherwax the bond and mortgage therein mentioned, to secure the payment of the sum of $300 and interest one year from date.

The mortgage was duly recorded in Jefferson county where the premises were situated, August 6, 1889." „ The money thus secured was borrowed by Grover for the purpose of building a cottage on a portion of the premises described, but was not used for that purpose. The defendant Huntley acted as agent in procuring the loan. "When Mrs. Weatherwax learned that the money had not been so applied, she saw Huntley about it, and on January , 15, 1890, he and the defendant McFarran, to allay her fears, guaranteed the collection of said bond and mortgage. Afterwards, and on April 2, 1890, Grover and wife by warranty deed conveyed the premises to the defendant Huntley.

The deed was recorded in Jefferson county April 5, 1890. This deed contained a clause by which the defendant Huntley agreed to assume and pay the mortgage as a part of the consideration for such deed.

On August 26,1889, Eugene Petit obtained a judgment against Demas L. Grover for $207.21, which was assigned to the defendant Batiese ReYoir by an assignment which recites that $143.40 was due thereon January 14, 1889. The assignment was filed in Jefferson county August 27, 1889, and a transcript of the judgment was filed therein on the same day. There is unpaid thereon the amount last mentioned. This judgment became a lien on the premises in question prior to the sale by Grover. The mortgage in suit became due August 6, 1890, but was not paid by Huntley when due, although he was then and since has been financially able to pay it

About December, 1890, Huntley was informed of theReYoir judgment, and that an execution would be issued against the premises unless it was paid. After receiving this information," Huntley raised money on his own note and used it to pay the Weatherwax mortgage in full. Instead of taking a satisfaction, he procured an assignment of the same to his wife, the plaintiff in this action, which assignment was recorded in Jefferson county, January 3, 1891. The money used to pay the mortgage was the money of T. F. Huntley. At the time the money was paid and assignment taken, Huntley knew that a foreclosure of the mortgage would operate to cut off the lien of Re Yoir’s judgment, and procured the assignment thereof to his wife for the purpose, partly at least, of having the mortgage foreclosed to cut off that judgment. Soon after the assignment was filed in the clerk’s office the plaintiff commenced this action to foreclose the mortgage assigned to her.

As conclusions of law the referee in effect held : 1. That when Huntley received from Grover and wife a deed of the premises in question, and assumed and agreed to pay the Weatherwax mortgage as part of the purchase price, the lots became the primary fund for the payment of the mortgage, and Huntley the principal and primary debtor bound to pay and discharge the mortgage debt; 2. That when Huntley with his own money paid, or caused the mortgage -to be paid, the debt was paid and satisfied and the mortgage security was likewise paid, satisfied and discharged, and the lien of the mortgage on the premises was wholly discharged, and the mortgage title of said Huntley was merged and lost in his fee to said lots; 3." That Huntley being principally and primarily liable and bound to pay the mortgage, could not on paying the same keep the mortgage security alive and preserve the lien thereon by taking an assignment to his wife ; 4. That when Huntley paid the mortgage he obtained thereby no equity which entitled him to preserve the lien of the mortgage for the purpose of foreclosing the same to cut off the lien of a bona fide junior incumbrancer whose incumbrance was prior to the purchase by Huntley and of which he had notice before paying the mortgage; 5. That when the mortgage passed to the plaintiff by the assignment it was paid and discharged and the lien on the premises was lost, and the plaintiff was not entitled to maintain an action to foreclose the mortgage ; 6. That the defendant Be Voir was entitled to judgment dismissing the complaint in this action with costs, and judgment was ordered accordingly.

The evidence, as well as the findings of the referee, render it manifest that it was not the intention of Huntley, the plaintiff, or Mrs. Weatherwax to pay or discharge the mortgage in suit, but was their intention to continue it in force and thus transfer it to the plaintiff. That there was no intention to extinguish it is obvious from the transaction between them and the assignment of the mortgage. James v. Morey, 2 Cow., 246; Michels v. Townsend, 18 N. Y., 582.

The ground upon which the respondent seeks to uphold the judgment is, that when the defendant Huntley accepted the deed from Grover, and thereby assumed and agreed to pay the mortgage as a part of the purchase price, he became the principal debtor as to the mortgage debt, was obliged to pay it, and when he did pay it, it became merged in his title and the lien of the mortgage was discharged, as he could not keep it alive by assignment to a third person.

On the other hand, the appellant contends that no duty was imposed upon the defendant Huntley to pay the mortgage in exoneration of the land, but that the land remained the primary fund for the payment of the mortgage debt. Thus the real question to be determined is, whether by reason of the provisions in his deed to assume and pay the mortgage as a part of the purchase price of the premises, the defendant Huntley became personally and primarily liable to pay the mortgage debt without recourse to, and in exoneration of the land, or whether the land remained the primary fund for its payment, with an additional liability on the part of the defendant Huntley to indemnify his grantor against any deficiency that might arise on the sale of the mortgaged premises.

Whatever the rule may be elsewhere, we think it is the settled doctrine of equity in this state that, where premises are conveyed subject to a mortgage, and the deed contains a covenant by which the grantee assumes and agrees to pay the mortgage debt, the land is the primary fund for its payment. The purpose of the covenant is to indemnify the grantor for any deficiency that may arise on the sale of the mortgaged premises, and the liability of the purchaser is that of indemnitor as between himself and the grantor.

This question arose, and was considered by Chancellor Kent in Cumberland v. Codrington, 3 Johns. Ch., 229, where, after a careful examination of many of the English and American authorities bearing upon the question, it was held that where a person takes a conveyance of land subject to a mortgage, and covenants to indemnify the grantor against the mortgage, the land is the primary fund for its payment, and that this is so even where the purchaser has rendered himself liable at law to the mortgagee or creditor for the debt. The doctrine of that case was also recognized in King v. Whitely, Hoff. Ch., 477_

_ In Halsey v. Reed, 9 Paige, 446, it was "held that where a mortgagor sells and conveys the equity of redemption subject to the mortgage, the purchaser retains enough of the purchase price to satisfy the mortgage, and agrees to pay it, the mortgagor and purchaser stand in the relation of principal and surety, the latter as security for the former to the extent of the mortgage debt, and the premises are primarily chargeable with the payment of the mortgage. The principle of that case was affirmed in Russell v. Pistor, 7 N. Y., 171, 174; Bowne v. Lynde, 91 id., 92, 96; Rubens v. Prindle, 44 Barb., 345.

In Slauson v. Watkins, 86 N. Y, 597, it was held that such an 'agreement was in substance an agreement to indemnify the mortgagor, and the effect of the transaction was to make the mortgaged premises primarily liable for the debt, and' the grantee the principal debtor as between himself and his grantor, but that until there was a sale of the premises, leaving a deficiency, no action could be maintained against the purchaser.

In the Matter of Wilbur v. Warren, 104 N. Y., 192; 5 St. Rep., 602, it was held that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt, although the deed contains a covenant on the part of the grantee to pay it. The covenant is to indemnify the grantor against the contingency that the land may not bring enough to pay such debt.

In discussing this question in that case, Andrews, J., said : “It is the settled doctrine in equity that one who purchases land subject to a mortgage makes the land thereby the primary fund for the payment of the mortgage debt It is otherwise as between mortgagor and mortgagee when the bond of the mortgagor accompanies the mortgage in the absence of any statute regulation. In that case the bond is the principal thing and the mortgage is the incident. The debt is represented by the bond, and the mortgage is a collateral security for the personal obligation. But on a conveyance by the mortgagor subject to the mortgage, the plain meaning of the transaction between the parties is that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and in equity on such a conveyance the land is treated as the principal debtor, and the mortgagor as surety for the mortgage debt. If the deed in addition contains a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage. * * * This is in accordance also with the real intent of the transaction. The essential purpose of such a covenant is to indemnify the mortgagor against the contingency that the land may nof bring enough to pay the mortgage debt and thereby leave him exposed to a claim for a deficiency. . Although the covenant may be in the form of a direct undertaking to pay the mortgage debt, and not a mere covenant of indemnity, yet that is its essential character. The covenant is treated as an additional security for the mortgage debt, and inures as a promise to the mortgagee, yet it is settled that it will support an action by the mortgagee only when the immediate grantor of the covenantor is himself liable for the mortgage debt * * * The giving of a covenant by the grantee does not work a novation of the mortgage debt. It does not make the debt his own, except in respect to the estate (Butler v. Butler, 5 Ves., 534), and his liability is auxilliary and not primary.”

Assuming, as we must, the principle established by the cases cited, it follows that Huntley was in no way bound to pay the mortgage debt in exoneration of the land which was the primary fund for its payment, and, therefore, the defendant EeYoir, as judgment creditor, had no right to insist that the payment was in satisfaction of the mortgage, when it clearly appeared that it was not the intention of the parties to that transaction. It is only where the person paying the mortgage debt is the principal and primary debtor and is liable personally and primarily for the debt secured that he cannot prevent the encumbrance from merging where an assignment is taken to a third person for his benefit. Hence, we are of the opinion that the learned referee’s conclusions of law were erroneous, and that he erred in directing a judgment for the defendant EeYoir. For these errors, we think the judgment should be reversed.

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

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Robert Kerr, App’lt, v. Merritt F. Joslin, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Highways—Liability of commissioner—Shutting off mill power.
    The water to propel the machinery in plaintiff’s mill was carried across the highway in a culvert covered by a bridge, which it was necessary to maintain for the accommodation of the public traveling along the highway. Defendant, as commissioner of highways, shut off the water running through the culvert, as was necessary to enable him to make necessary repairs to the bridge. Held, that defendant was not liable for the damage caused plaintiff by the temporary shutting off of his mill power.
    (Merwin, J., dissents.)
    Appeal from a judgment entered in Herkimer county, July 17, 1891, on the report of a referee, dismissing the plaintiff’s complaint, with costs.

      D. C. Stoddard, for app’lt; J. J. Duddleston, Jr., for resp’t.
   Martin, J.

This action was in equity, to perpetually enjoin the defendant from turning the water away from the plaintiff’s mill and from obstructing the stream below, to compel him to remove an alleged obstruction of the stream at that point, to recover damages for the use of the mill while idle by reason of the defendant’s having shut off the water necessary to operate the same, and for injury to goods in process of manufacture at the time.

The plaintiff's claimed right of recovery was based upon the allegation that the defendant had wrongfully diverted a stream of water employed by the plaintiff in running his woolen mill and machinery. The defendant justified the acts performed by him on the ground that he was sole commissioner of highways of the town in which the property was situated, that a bridge over the stream or culvert through which the water was conveyed from the plaintiff’s mill had become impaired so that it was necessary to rebuild it, and that in doing so it was necessary to exclude the water from the stream or culvert, and that it was shut off only for such time as was necessary to rebuild such bridge.

The plaintiff was the owner and in possession of the premises described in the complaint, and had been since 1865. Upon the premises was a woolen mill and its machineiy, a portion of which was propelled by water. It was used by the plaintiff in manufacturing cloth and carding wool. The water to run the machinery was taken from Moyer creek, under the Erie canal, into an artificial canal or aqueduct, and thence to a bulkhead adjacent to plaintiff’s mill, and from the bulkhead through a flume to plaintiff’s wheel. The fall of water at plaintiff’s wheel was about nine feet After leaving the wheel the water passed in a northerly direction over an apron or floor through a tail-race from plaintiff’s mill under a bridge or archway on Main street, in the village of Frankfort, and thence to Hoard’s pond below. During the years 1886 and 1887, defendant was sole commissioner of highways of the town of Frankfort. Main street was one of the principal streets in the village of Frankfort in that town. In October, 1886, the bridge on that street over the tail-race to plaintiff’s mill was out of repair, and it became necessary for the defendant, as commissioner of highways, to build a new bridge at that place. In the fore part of that month the defendant saw the plaintiff, informed him that it was necessary to build a new bridge, and that in order to build the same it would be necessary to shut off the water from plaintiff’s mill for a short time, but the plaintiff did not consent that it should be shut off at any time, but said he could not ever spare it.”

On the 7th or 8th of October, the defendant caused the water to be shut off by closing the gate at Moyer Creek, and it was kept closed until the 22d of that month. Previous to turning the water off the defendant made preparations to do the work of rebuilding the bridge. In order to rebuild it, it was necessary to shut off the water from plaintiff’s mill during its construction. In constructing it the defendant procured suitable material, employed competent workmen and proceeded with reasonable diligence in the prosecution of the work. When the water was shut off the plaintiff was actually engaged in fulling cloth and manufacturing goods, having in process of manufacture four pieces of cloth, containing 150 yárds, worth eighty-eight cents per yard, which was destroyed, whereby he sustained damage to the amount of $122. He also had in process of manufacture a quantity of yarn, which was injured to his damage of $107. The defendant, however, had no knowledge that the cloth or yarn was in process of manufacture, or that it was being injured by plaintiff’s mill being shut down. The value of the use of the plaintiff’s mill during the time it was idle was fifteen dollars a day.

Prior to the construction of the new bridge, the water from plaintiff’s wheel flowed under an old bridge on Main street, through a channel or tail-race, about four feet in width, in which there was a plank floor, under the southerly side of the roadway. In constructing the new bridge, the channel or tail-race was increased to the width of seven feet and the bottom was from three to five inches lower than the bottom of the old culvert. The floor of the new culvert descended each way from the middle of the street, the descent to the north being from one-half to one inch, and to the south from four to five inches. The highest part of the floor in the new culvert is at least three inches lower than the floor or table on the northerly side of plaintiff’s water wheel in the wheel pit. The top of the flush board of Hoard’s dam, which forms his pond, is higher than the highest part of the floor of the new culvert. The floor of the tail-race adjacent to plaintiff’s lands is from five to six inches lower than the floor of the wheel pit and that portion of the tail-race which is on the plaintiff’s premises. In rebuilding the new arch, after removing the old culvert, the defendant excavated about two feet on each side for the purpose of widening the tail-race, and left standing an old wall or walls on the north and just outside of the street, which had previously been used to support a temporary building over the tail-race. The old walls were from one and one-half to two feet closer together than the walls of the new culvert, and constituted no part of the old culvert. They were not in the highway, and it did not appeár that the defendant had any right to remove them.

Before the defendant entirely completed the culvert, the water was turned on. At that time the tail-race had not been cleaned out, there being upon the floor stone and plaster which somewhat impeded the flow of water therein. Since the completion of the new culvert and when the water is turned off from the tail-race, water stands three or four inches deep in places from near the top of the planks in the center of the culvert to the plaintiff’s land, about twenty feet from his wheel pit. The new culvert is sixty-one feet long, embraces both sidewalks, extends from the south to the north line of the street, and is three feet wider than the old culvert. South of the new culvert, near the face of the plaintiff’s mill, the tail-race is now and prior to September, 1886, was only five feet and eight inches wide, and the old walls north of the culvert are only five feet apart, both of which narrow places are outside of the street. The capacity of the new culvert to dis- . charge the water from plaintiff’s wheel is greater than it was in the old. The water does not set back on to plaintiff’s water wheel in consequence of the construction of the new culvert or arch way. The foregoing are substantially the facts found by the referee.

The referee as matters of law held; that the tail-race being an artificial water course intersecting the highway and necessitating the building and maintaining of a culvert at that point, the defendant, as commissioner of highways, had a right to temporarily turn the water off, when reasonably necessary to put the highway in a condition of safety for public travel, and that plaintiff had no redress against defendant for any damage resulting from a prudent and reasonable exercise of such right; that the defendant, as such commissioner, in rebuilding the culvert in question had the right, under the circumstances, to shut off the water for a reasonable lbngth of time, and for any damage resulting to the plaintiff in consequence, the plaintiff had no redress against defendant; that the plaintiff sustained damage by reason of the “ detention of his said mill ” in the sum of four hundred and fifty dollars and upwards, but was not entitled to recover the same of the defendant; that the defendant constructed the said culvert in a reasonable and proper manner, employing competent and sufficient Workmen and using proper material for its construction; that it does not obstruct the flow of water from the plaintiff's mill nor cause the waters to set back upon the plaintiff’s water wheel; that the defendant acted as commissioner of highways in constructing the culvert and the manner of construction of the floor or archway does not injure plaintiff’s mill; that it was the duty of the defendant, as such commissioner, to build a new culvert at the time, and in building the same he used reasonable care and was not negligent; that defendant was entitled to judgment dismissing the plaintiff’s complaint with costs, and ordered judgment according

In the appeal book there is a certificate that it contains all the evidence given on the trial. This evidence we have carefully examined, and find it sufficient to justify the referee in finding that the bridge or culvert, as constructed, did not obstruct the flow of water from the plaintiff’s mill, nor cause the waters to set back upon his water wheel. Whether the new culvert was so constructed as to impair the plaintiff's water power by causing the waters therein to set back in the tail-race and upon his water wheel, was a question of fact to be determined by the referee. Upon that question there was a conflict in the evidence. The referee found for the defendant We find no sufficient reason to disturb the referee’s findings in that respect We cannot say that they were against the weight of evidence. If the referee was justified in finding those facts, as we think he was, the plaintiff could not sustain the action for an injunction to restrain the defendant from maintaining the culvert as it was_ constructed, nor to require him to restore it to its former condition. It follows, therefore, that the judgment should not be disturbed upon the ground that the plaintiff was denied the relief by injunction sought in this action.

This brings us to the question whether the referee erred in denying the plaintiff the relief sought by way of damages, for the loss of the use of his mill, and injury to his goods in process of manufacture. The defendant was the sole commissioner of highways of the town in which the premises were situated. The water to propel the machinery in the plaintiff’s mill was carried across the highway in a culvert. It was covered by a bridge or arch, which it was necessary to maintain for the accommodation o£ the public traveling along the street or. highway. It was the defendant’s duty, as such commissioner, to cause this bridge to be kept in repair. (Revised Statutes, 8th ed., 1347, § 1.) It was in the performance of this public duty that defendant shut off the water running through the culvert, so as to enable him to repair or rebuild the bridge or arch in the street at that place. The learned referee has found that it was necessary to shut it off, and keep it shut off during the construction of the new bridge or arch, and that the work was prosecuted with diligence and reasonable care. Under these circumstances we fail to discover any ground upon which the defendant should have been held liable to the plaintiff for the injury sustained by him.

In Atwater v. Trustees, etc., 124 N. Y., 602, 37 St. Rep., 234, where the defendant while engaged in building a bridge, in pursuance of statutory authority, erected a coffer-dam in the outlet of a lake, which was necessary for the work, but which obstructed the flow of the water from the lake and caused it to remain on plaintiff’s land, and substantially deprived him of its beneficial use for one season, it was held that it appearing that the work was properly and expeditiously done, the defendants were not liable for the damages ; that there was not a taking of plaintiff’s property within the meaning of the constitutional provision prohibiting such taking without compensation ; and that the time and the necessity for the construction were matters to be determined by defendant, and in the absence of proof of bad faith, the exercise of this discretion was not the subject for review. In delivering the opinion in that case it was said: “ Nor can they (the defendants) be relieved unless their rights were superior to those of persons engaged in work private in character. The doctrine, however*, is well established in this state, that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized by law, are not liable for consequential damages occasioned by it to others-unless caused by misconduct, negligence or unskillfulness. (Radcliff's Executors v. Mayor, etc., 4 N. Y., 195 ; Bellinger v. N.Y. C. R. R. Co., 23 id., 42; Moyer v. N.Y. C. & H. R. R. R. Co., 88 id., 351; Uline v. N.Y. C. & H. R. R. R. Co., 101 id., 98.) And such is the weight of authority elsewhere. (Transportation Co. v. Chicago, 99 U. S., 635, 641.)”

The case cited is in many respects similar to the case at bar. The principle of that case seems to be decisive of the question under consideration. The defendant was a public officer and employed in work of a public nature authorized by law. He was guilty of no misconduct, negligence or unskillfulness, and was not, we think, liable to the plaintiff for the injury he sustained.

The appellant contends that the referee erred in refusing to find certain facts in accordance with his requests. We have examined his numerous requests, and find that in many instances where the referee declined to respond to the request there was a conflict in the evidence, and the referee found the converse of the proposition contained in the proffered request. In others, the evidence was" insufficient to justify the requested finding, or the request was to find mere evidentiary facts which were neither controlling nor important in the light of the findings made. Indeed, we have found no refusal to find any material fact which was not inconsistent with the findings made, or thereby rendered unnecessary. Our attention has been called to no finding that was not justified by the evidence, or to any refusal to find that was unwarranted and prejudicial to the appellant. The refusal of a referee to respond to a request to find is not a ground for a reversal, unless such a refusal was prejudicial to the appellant. Matter of Hicks, 14 St. Rep., 820; Morris v. Wells, 26 id., 9. The refusal of a referee to find on questions of fact is not fatal where the findings are not material to the decision, or would not be beneficial to the party asking them. Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21.

We are led by these considerations to the conclusion that the referee committed no error which would justify us in disturbing the judgment appealed from, and that it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., dissenting.


text:
    William A. Sweet, Pl’ff, v. The City of Syracuse et al., Def’ts. William A. Sweet, App’lt, v. Henry J. Mowry et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Costs—Equitable action—One bill only.
    In an action in equity, all the defendants having joined in one appeal, and the decision of the court of appeals having been a reversal of the judgment of the general term, and an affirmance of the judgment of the special term, "with costs,” but one bill of costs is authorized.
    3. Appeal—Obder for judgment on remittitur.
    An order for judgment on a remittitur directed it “ with costs of said appeal,” when the provision in the'remittitur was "with costs in this court,” but only the costs in the court of appeals were included in the judgment entered. Held, that there was no occasion for granting an amendment to the order.
    3. Same—Remittitur — Recall—Does not per be nullify judgment
    ENTERED THEREON.
    A recall of a remittitur and a rehearing of the case does not operate
    . per se to nullify the order and judgment entered in pursuance thereof.
    Appeals from orders denying motions to modify and vacate judgments entered upon remittitur of the court of appeals.

      Charles H. Peck, for pl’ff; C. L. Stone, W. A. Beach and C. E. Ide, for def’ts.
   Martin, J.

This action was brought by the plaintiff, as a tax payer, against the city of Syracuse, its mayor, clerk, treasurer, the members of its common council, and its water board, to perpetually restrain them from carrying into effect, or exercising the powers conferred by chapter 291 of the Laws of 1889, entitled “ An act to establish and maintain a water department in and for the city of Syracuse,” as amended by chapter 314 of the Laws of 1890. The defendants, constituting the Syracuse Water Board, appeared and answered by their attorneys, and the other defendants appeared and answered by the corporation counsel of the city of Syracuse.

The action was subsequently brought to trial at a special term of this court, and resulted in a judgment dismissing the plaintiffs complaint on the merits, “ with costs separately to the defendant, the city of Syracuse, and the defendants comprising the Syracuse Water Board,” and adjudging that the city of Syracuse recover of the plaintiff $65 costs, and the defendants comprising the Syracuse Water Board, also recover the sum of $85.99 costs.

From this judgment the plaintiff appealed. The general term, modified it by declaring that § 18 of chapter 291 of the Laws of 1889, as amended by chapter 314 of the Laws of 1890, was invalid, and by enjoining the defendants from exercising any powers by virtue of that section, by striking out the award of costs contained therein, and by awarding to the plaintiff the costs of the appeal. Thereupon, the plaintiff, as well as the defendants, appealed to the court of appeals, where the judgment of the general term was reversed, and that of the special term affirmed, “ with costs.”

The record and proceedings in the court of appeals were remitted to this court on June 26, 1891. On the next day the defendants obtained an order making the judgment of the court of appeals the judgment of this court, and the defendants constituting the Syracuse Water Board entered judgment reversing the judgment of the general term, affirming the judgment of the special term, and awarding them $249.53 costs. On August 12,

1891, the costs included in the judgment entered on the decision-of the special term and those included in the judgment entered July 27, 1891, on the decision of the court of appeals, were paid by the plaintiff to one of the attorneys for the defendants constituting the Syracuse Water Board, who executed and acknowledged a satisfaction thereof. As there was a conflict in the affidavit» upon the question, the special term was justified in finding that' the costs were paid by the plaintiff voluntarily and without' protest. Subsequently, and on the 28th day of August, 1891,. the other defendants entered another and second judgment against the plaintiff, reversing the judgment of the general term, affirming that of the special term, and awarding them the sum of $189.63 costs.

On September 19, 1891, the plaintiff made a motion to vacate the latter judgment on the ground that it was irregular in consequence of the entry of the previous one, and that two bills of costs were not allowable. On the hearing of this motion the court made an order that the judgment be corrected by deducting therefrom the sum of seventy dollars, and that the motion to vacate it be denied without costs. From the portion of that order denying the plaintiff’s motion to vacate and set aside the judgment, and to strike out the remaining costs contained therein, the plaintiff appealed. The defendants appealed from that portion of the order which directed the deduction of seventy dollars from the costs thereby awarded.

The first question presented by this appeal is, whether the court properly denied the defendants’ motion to vacate the judgment of August 28, 1891. The only substantial right involved in the motion was the defendants’ right to costs. Were the defendants entitled to two bills of costs ? It will be observed that the only direction made by the court of appeals as to costs was that the judgment of the general term be reversed, and the judgment of the special term affirmed, “with costs.” The costs were in the discretion of the court, as the action was not one'specified in § 3228 of the Code of Civil Procedure. (Sec. 3238.) This being an action in equity, all the defendants having joined in one appeal, and the decision of the court of appeals having been a reversal of the judgment of the general term and an affirmance of the judgment of the special term, with costs, but one bill of costs was authorized. Van Gelder v. Van Gelder, 84 N. Y, 658; In re N. Y, W. S. & B. Ry. Co., 28 Hun, 505; Fischer v. Langbein, 31 id., 272; Everson v. Gehrman, 2 Abb. Pr., 413.

We are of the opinion that the entry of the second judgment was irregular, and the court erred in denying the plaintiff’s motion to vacate it. If correct in this conclusion, it follows that the order appealed from should be reversed, and that the defendants’ appeal should not prevail. It would seem, however, that the judgment first entered should have been amended by the special term by awarding costs to all the defendants, instead of the defendants comprising the Syracuse Water Board. Our conclusion as to the appeal from the order of September 24, 1891, is, that it should be reversed, with ten dollars costs and disbursements, that the motion to vacate the second judgment should be granted, and the judgment entered July 27, 1891, amended so as to award the costs therein to all the defendants, instead of the defendants comprising the Syracuse W ater Board.

Subsequently, and on ihe 27th of October, 1891, the plaintiff made a motion for a reargument of the case in the court of appeals. This motion was granted, and the supreme court was requested to return to the court of appeals the remittitur in the case. On November 4, 1891, an ex parte order was made at a special term of this court directing the return of the remittitur. The case was reargued and again decided by the court of appeals. The proceedings were again remitted to the supreme court, including the.first remittitur, which was in no manner changed, and the second remittitur reversed the judgment of the general term •and affirmed that of the special term, with costs in that court.

Afterwards, and on January 25, 1892, the special term, on motion of the attorney for the Syracuse Water Board, granted an order making the judgment of the court of appeals the judgment of this court and directing judgment in accordance with the provisions of the second remittitur, except that it provided that the judgment should be entered, “ with costs of said appeal,” instead of with costs in the court of appeals. On the following day the attorney for the water board entered another judgment, reversing the judgment of the general term, affirming the judgment of the special term, and awarding to the defendants composing the Syracuse Water Board $102.86 costs against the plaintiff.

On February 16, 1892, the plaintiff made a motion “ to modify said order of January 25, 1892, by making the same conform to the remittitur from the court of appeals, to wit: instead of directing costs of said appeal,’ to read ‘ costs in the court of appeals to vacate and set aside said order of June 29, 1891, and said judgments of July 27th and August 28, 1891, and to direct the restitution to the plaintiff of the sum of $65 and the sum of $95.99, being the costs awarded to the defendants by said judgment of the special term, and the sum of $249.53, being the costs included in said judgment of July 27, 1891, all of which costs have been paid by the plaintiff, and for such other and further relief in the premises as may be just and proper, with costs. The plaintiff claims that said relief should be granted because of the opening of the case by the court of appeals for reargument, and the decision in consequence thereof.” This motion was denied with ten dollars costs to the defendants comprising the Syracuse Water Board and- ten dollars costs to the city of Syracuse separately,” and entered in the office of the clerk of Onondaga county May 10, 1892. From this order the plaintiff appealed. 1

The correctness of the latter order is the only remaining ques-‘ tian to be considered. The contention of the plaintiff is :

1. That the order for judgment on the second remittitur should be amended to conform to the remittitur ;

2. The judgment thereon should give the costs to all the defendants instead of to the Syracuse Water Board;

3. The order and judgments on the first remittitur should be vacated;

4. The costs paid with interest should be restored. These propositions will be considered in the order in which they are stated.

First. We can perceive no necessity for the amendment to the opler for judgment on the second remittitur. The only defect complained of is that its provision as to costs was with costs of said appeal,” when the provision in the remittitur was “ with costs in this court.” Where, as in this case, the defendants have only included in the judgment entered the costs in the court of appeals, the merits of this claim are not apparent, nor is it apparent how the plaintiff has been injured by the omission to follow in the order the precise language of the remittitur. We see no occasion for granting the amendment sought.

Second. We think the plaintiff’s claim that the judgment entered upon the second remittitur should have awarded the costs to all of the defendants instead of to the defendants constituting the Syracuse Water Board is well founded, and that the special term should have granted an order amending the judgment in that respect. As we have already examined the question as to the plaintiff’s liability for more than one bill of costs, no further examination would seem to be necessary.

Third. The- only practical question involved in the plaintiff’s claim that the order and judgments made in pursuance of the first remittitur should be vacated is, whether the defendants were entitled to the costs included in the judgment entered by the defendants composing the water board, July 27, 1891. If the defendants were entitled to the costs included in that judgment, then, when it is amended so as to award costs to all of the defendants instead of a part, the plaintiff will be in no way injured by allowing that judgment as amended to remain, and it will then stand as it should have been entered originally. It is true a question may arise between the defendants as to the manner in which those costs should be divided, but that question is not before us.

The plaintiff’s precise contention is, that wlien a reargument was ordered and the original remittitur returned to the court of appeals, it in effect nullified the order and judgment that were made and entered in pursuance of the first remittitur, and, hence, that the defendants are entitled only to such costs as were awarded by the remittitur filed after the decision upon a re-argument of the case. We cannot think that a recall of the original remittitur and a rehearing of the case operated per se to nullify the order and judgment entered in pursuance thereof. (Murray v. Jones, 18 St. Rep., 916, 918; Newton v. Harris, 8 Barb., 306.) That it worked a temporary suspension of all proceedings under that judgment may be. Doubtless the court of appeals might have so changed its original decision in the case and so amended its first remittitur that it would have been the duty of this court to vacate the judgment and order first entered. It, however, did nothing of the kind. After a re-argument-of the case it in no way changed or amended the original remittitur, but left it remaining as it was first issued, and added to the return a second remittitur in which it re-asserted its former decision with costs in that court. So that the record, when it finally rested in this court, contained an award of costs to the successful party by the court of appeals upon its first decision, and an award of costs in that court when it reaffirmed that decision after a reargument. These circumstances, we thiqk, indicate that the intent of the court of appeals was that the provisions in the first remittitur as to costs should remain unchanged, and that the defendants should have costs in that court upon the reargument. We must assume that if the court of appeals had intended to change, modify or supersede any of the provisions of the first remittitur, it would have indicated that intent in the second.

These considerations lead ns to the conclusion that the judgment entered July 27, 1891, by the defendants constituting the Syracuse water board, should be amended in the respects suggested, and when thus amended allowed to stand.

Fourth. If the conclusions at which we have already arrived are correct, it would seem to follow that the plaintiff is not entitled to the restitution sought. Whether the amount of costs as adjusted by the clerk was correct we need not inquire, as we fail to find that any of the items thereof were objected to before the clerk or any motion made by the plaintiff for a re-taxation thereof. In the absence of proof that any of the items were improperly adjusted after objection by the plaintiff, it is not our duty to examine as to the correctness of such adjustment, especially as the costs have been paid without questioning any of the items. We think the order should be affirmed so far as it denied the plaintiff the restitution asked.

Order of September 24, 1891, reversed with ten dollars costs and disbursements of this appeal to plaintiff, motion to vacate the judgment entered August 28, 1891, granted, and judgment entered July 27, 1891, amended so as to award the costs therein to all of the defendants, instead of the defendants comprising the Syracuse water board.

Order of May 10, 1892, modified by directing the judgment entered January 26, 1892, to be amended by awarding the costs therein to all of the defendants, instead of the defendants constituting the Syracuse water board, and by striking out the costs of the motion awarded to the defendants, and as modified, affirmed, without costs to either party.

Hardin, P. J., and Merwin, J., concur.


author: Hardin, P. J.

text:
    Jennie R. Sherman, Respt, v. The Village of Oneonta, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Municipal cobpobations—Negligence—Pleading-.
    In an action against a municipal corporation for damages for personal injuries to plaintiff caused by her driving into an excavation in defendant's street, counsel for defendant objected “that the complaint alleged the existence of an unguarded excavation, and attempted to prove a mound as the cause of the injury.” Meld, that defendant was not misled by the complaint, and if it desired it to contain a more accurate description of the place where the injuries were received, its remedy was by motion to have the complaint made more definite and certain, or that a bill of particulars be rendered.
    3. Same.
    In such case it is no defense that the excavation or the ridge was caused or created and left in a dangerous condition by a water company some time previous to the accident. It was the duty of defendant to cause the place dug up to be restored by the water company, or to make the restoration itself.
    3. Same.
    In such case the trial court properly refused to take from the jury the question whether the plaintiff was free from contributory negligence, and also properly refused to set aside the verdict on that ground.
    4. Same—Evidence.
    Plaintiff called witnesses who testified that they saw the ditch, made one attempt to cross it, and thereafter always drove around it, Meld, competent for the purpose of showing the condition of the road.
    5. Same—Notice of claim:.
    Defendant’s charter provided that “no account or claim against the village shall be audited or allowed unless verified by the oath of the claimant. All claims for damages against the village shall, in the first instance, be presented to the board of trustees, verified under oath in like manner.” Held, that the provision does not apply to an action for negligence or an action ex delicto.

    Verdict in Otsego circuit for the appellant for $8,500. A motion for a new trial denied, made upon a case and exceptions. Appeal from the judgment entered upon the verdict and a notice of intention to bring up for review; and an appeal from the order denying the motion for a new trial. Plaintiff, in her complaint, alleges “ That on or about the 23d day of April, 1886, a deep, dangerous trench, hole or ditch was excavated in and across (Center street), and across the traveled part of said street and in such a manner as to render it impossible for persons using or traveling on said street in carriages or other vehicle to pass along without crossing over or into said ditch, trench or excavation, and said ditch, trench or excavation was suffered by the defendant, during the day and night of the said 23d day of April, to remain open, exposed and in an unsafe and dangerous condition, and so suffered it to remain in said improper and unsafe condition for a long time prior to said day ; and the defendant had full knowledge of the fact that said street was in a dangerous and unsafe condition, which said ditch or trench was opposite, or nearly opposite, the premises of W. A. Lakin, in said village, and at a point where Elm street intersects and crosses said Center street.” The complaint also alleges that the plaintiff on the day aforesaid .was travelling in said street in a carriage and vehicle and was wholly unaware of the dangerous and unsafe condition of said street, and while passing along the same in a prudent and proper manner, and without fault on her part, by means of the unsafe, dangerous and improper condition of said street was precipitated and violently thrown from the carriage in which she was riding and dangerously and permanently injured, specifying the injuries in detail. A former verdict was had in the case of $4,000 and an appeal was taken from the judgment entered thereon, and was heard by us and a new trial granted upon the ground that improper evidence was received, the trial court having admitted “ evidence of declarations of defendant’s street commissioner to a workman, a few days after the accident, that there was a high mound there and that it must be picked off and cleaned up before somebody else got hurt.” (See 36 St. Rep., 587.)

      Burr Mattice, for app’lt; F. R. Gilbert, for resp’t.
   Hardin, P. J.

Criticism is made by the learned counsel for the appellant of the complaint; and it is claimed that the complaint “ alleged the existence of an unguarded excavation and attempted to prove a mound as the cause of the injury.” The injury sustained by the plaintiff occurred while she was riding in a carriage westerly along Center street, and the evidence discloses that at a point where the intersection of that street with Elm street occurs there was a gutter which crossed Center street on the easterly line of Elm street and on the westerly side of this gutter there was, according to the evidence of some of the witnesses, a ridge or elevation of the surface of the street which had been left there since the preceding fall when the ditch or trench was made for the purpose of laying the water pipe. Numerous witnesses were called by the plaintiff to describe the condition of the street at the time of the injuries; the depth of the same; the length of the same, and the extent of the earth on either side rising above the regular grade of the street; some of the witnesses state the depth of the ditch or trench to have been in the neighborhood of twenty-three inches, arid in giving the details of the circumstances pertaining to the ditch they specify a ridge or elevation of earth which seems to have been left after the placing of the water pipe through the street. On the other hand, defendant calls numerous witnesses who testify that the depth is not so great as specified by the witnesses of the plaintiff, and that the elevation or ridge is not so great as specified by plaintiff's witnesses. If the defendant desired the complaint to contain a more accurate, definite and minute description of the place where the injuries were received, it should have sought its remedy by a motion to have the complaint made more definite and certain, or that a bill of particulars be rendered. The defendant was not misled by the language of the complaint. The evidence that was received in respect to the location where the injuries took place was admissible. There is no available force in the criticism made of the complaint. Whether the street where the injuries were received was in a dangerous, unsafe, improper and unsuitable condition was made a question of fact upon which either side gave very extensive evidence, and after a careful perusal of all that evidence the conclusion is reached that it was proper to submit the question to the jury to say whether the defendant had been guilty of negligence iii leaving the street in the condition in which it was at the point and time of the injuries. Apparently, the evidence discloses that the street had remained in the condition in which it was found on the occasion of the accident from the fall of 1885 ; the defendant either had actual notice of its condition or was negligent in not obtaining notice of its condition; the length of time was sufficient to warrant an inference that it had knowledge of the unsafe condition of the street. Ryan v. The Mayor, etc., of the City of New York, 13 St. Rep., 550. Defendant’s corporate existence is derived from chapter 30 of the Laws of 1885. In the second section of that act, it is provided as follows: “ The said village is hereby declared to be a separate highway district, under the exclusive care and jurisdiction of the board of trustees, who shall have all the powers conferred upon commissioners of highways of towns within this state.” The charter confers other powers and duties upon the trustees of the village, and in the twenty-sixth section it is provided that the trustees shall have the exclusive control and management of * * * the roads, streets, avenues, alleys and public places of the village And in § 42 of the charter, it is provided: “ No water company, gas company, person or association of persons, shall be allowed to dig up any street, highway, avenue, land or public place for the purpose of laying pipes or any other purpose, and leave the same in an unsafe manner, or without guards and lights during the night time, and all such work or jobs shall be done with reasonable dispatch. All public places so dug up shall, by the respective parties doing or causing the same to be done, be fully restored by them to as good condition as before such work had been done.” In this case it is no defense to the defendant to say that the excavation or the ridge or trench or parts thereof were caused or created and left in a dangerous condition in the fall of 1885 by a water company. Pettengill v. The City of Yonkers, 116 N. Y., 558; 27 St. Rep., 531; Horey v. The Village of Haverstraw, 47 Hun, 356; 14 St. Rep., 498. If such condition was produced by the water company, it became the duty of the trustees either to cause the place so dug up to be fully restored by the water company so as to be in as good condition as before such work had been done, or to make the restoration, amendments and repairs necessary to be done in order to cause its streets to be in a reasonably safe condition for the use of the public.

In Rehberg v. The Mayor, etc., of the city of New York, 91 N. Y., 142, it was said: “ Where the defect or obstruction which has caused the injury was created or placed therein by the unlawful and unauthorized act of persons not officers of the city, the duty of the city to repair the defect or remove the obstruction only arises after actual notice of its existence, or after such a lapse of time as would justify the imputation of negligence if the defect or obstruction had not been discovered, and what is such reasonable time, is a question for the jury.”

In McGuire v. Spence, 91 N. Y., 303, it was held: “One passing along a sidewalk has a right to presume it to be safe; he is bound to no special care, and cannot be charged with negligence for not being on his guard against an unlawful obstruction, or for not looking for it, although it is visible.”

In Pomfrey v. The Village of Saratoga, 104 N. Y., 459; 5 St. Rep., 802, it was held, viz:' “ Where, by the charter of a municipal corporation, the duty is imposed upon it of keeping its streets and sidewalks in a reasonably safe and proper condition for public use, for a neglect to perform this duty it is liable to damages to persons who, because thereof, without fault on their part, receive injuries.” And in speaking of the duty of the trustees in a case like the one before us, the court observed: “But they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of repair l'or any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.” Again, the court reasserted the principle applicable to the case before us in Turner v. The City of Newburgh, 109 N. Y., 301; 15 St. Rep., 93, in which case it was held: “Municipal governments owe to the public the absolute duty of putting and maintaining the public highways, which are in their care or under their management, in a gqod, safe, and secure condition; and any default in this respect, if occurring through negligence of the officials upon whom the duty is devolved, renders the municipality liable. Where the unsafe condition is caused by some other than municipal agency or instrumentality, negligence is not imputable until a sufficient time has elapsed to charge the municipal officials with notice.” We think the evidence in this case warranted the jury in finding that the defendant had notice of the defective, unsuitable and dangerous condition of the street in question, and that that question, as a question of fact, was properly submitted to the jury, and it must be assumed that it was found that from the fall of 1885 until the 23d of April, 1886, the street was in an unsafe and dangerous condition, upon evidence sufficient to warrant a verdict to that effect. The defendant was chargeable upon the evidence with notice of the defective or dangerous condition of the street. Pettengill v. 'lhe City of Yonkers, supra. Although the defendant gave considerable evidence tending to contradict the testimony offered by the plaintiff in regard to the condition of the street, yet under the rule applicable to cases where there is a conflict in the evidence we should not disturb the verdict. Goff v. The Village of Little Falls, 47 St. Rep., 729, and cases cited in the opinion of Martin, J.; Beckwith v. The N. Y. Central Road, 64 Barb., 299 ; Teeter v. Teeter, et al., 47 St. Rep., 579; Scott v. Central Park, etc., 13 id., 551.

(2) We are of the opinion that upon all the evidence the question whether the plaintiff was guilty of contributory negligence, was for the jury. The plaintiff had a right to assume that all parts of the street intended for travel were reasonably safe, as the defendant was under an absolute duty to keep its streets in a reasonably safe condition for' public travel, and was bound to exercise reasonable diligence and care to accomplish that end. Brusso v. The City of Buffalo, 90 N. Y., 679 ; Pomfrey v. The Village of Saratoga, supra. We are of the opinion that the trial court properly refused to take from the jury the question whether the plaintiff was free from contributory negligence, and also properly refused to set aside the verdict upon that ground. The authorities cited in the opinion of Martin, J., in Goff v. The Village of Little Falls, supra, on a similar question, are applicable here.

(3) Plaintiff called Swift as a witness, who was on Center street at the time the accident occured, and who saw the wagon in which plaintiff was riding and heard something snap as it passed into the depression in Center street, and who described the condition of the street at the time of the accident. During his cross-examination he stated “ according to my best recollection and judgment, on that day the distance to the bottom of the water ditch I should think was four feet. It is my judgment and recollection, that from the bottom of the gutter to the covering of the water pipe, that is, the main water pipe, it was twelve feet. ” During his re-examination, the witness stated that he had made measurements with Mr. George 1. Wilber. I referred to the measurements that were made by myself and Mr. Wilber. The answer that I gave upon my cross examination, with reference to the distance, was based on recollections to my opinion as to where the dirt was. I make an estimate now of where it was then; I should think that this mound was at the top of the slope as you come within the water gutter, right at the top of it.” Subsequently in the course of his cross-examination the witness stated “ My present recollection, without regard to any measurements, independent of any measurements, that it was four feet from the center of that depression to the covering of the water ditch; four feet each way.” Thereupon the court observed “All that he has said with reference to the measurement of the distance may be stricken out of the case. It should not be in the case. I mean all that he has said with reference to the measurements he has taken.” Then the witness was permitted to explain what he meant with reference to the twelve feet, although the question calling for that explanation was objected to and the objection overruled, no exception was taken. In answer, the witness stated “ I mean from the bottom of the center of the water ditch, to the main pipe. I mean the water pipe. I meant it was twelve feet;” thereupon a question was propounded to the witness as follows : “ Did you ascertain that from recent measurements or from measurements at the time the accident occurred, or before ; ” this question was objected to; the objection was overruled and an exception taken by the defendant ; the answer of the witness was “ It was in regard to the measurements.”

The objection was again renewed by the defendant, and, among other things, it was stated in the objection that “ any other measurements which he made since the transaction is improper.” Thereupon the court remarked : “ I hold that any measurements made since the transaction is improper, but he has got the right, on this examination, to find out what his estimate of twelve feet was based upon, nevertheless.” The question was then read to the witness, and his answer was: “Recent measurements.” Thereupon a question was propounded to the witness as follows: “ Now, isn’t it a fact that between the time of the accident and the time of the measurement upon which you base your answer of twelve feet was made, that there has been a change made in those grounds? ” This was objected to. by defendant’s counsel, and the court replied : “ I am going to admit this evidence, not for the purpose of showing any change in the ground or location from which any inference of negligence can be drawn, but merely for the purpose of explaining with reference to this measurement, it is twelve feet; and how lie got it; that is your only object of it. What is your answer, Mr. Swift? You have asked him on the defense with regard to it, and shown affirmatively that it was twelve feet.” Thereupon the defendant’s counsel took an exception and the witness answered: “I think there has been some change.” We think, after the defendant liad called out the circumstance relating to the measurement made by the witness, that no error was committted in allowing the witness to state “there has been some change.” '

(4) Dr. Simmons was called as a witness for the plaintiff, who saw the accident and was standing on Center street, and who went to the scene of the accident. He says that he “ observed this place before that time; I had known the, place all the winter; all the year. * * * I think I had driven through there that week ; the condition of the road from the fall before down to the time of the accident was substantially the same.” Thereupon the following question was propounded to the witness: “From your present recollection of the street prior to the accident, what was its condition at that point? ” This was objected to by the defendant on numerous grounds; the objections were overruled, and the defendant took an exception. The court modified the question as follows: “Just describe it; don’t give any conclusion as to the condition of it, so the jury can see what there was of it.”

The witness then described the condition, and stated, viz.: “ There was a gradual slope down it for the water-course to run down through there, and a gradual rise up out of that, and then there was a mound of dirt, a bank of dirt, or something there, almost as soon as you get out of the slope, very close; I should think this bank of earth was about eight inches high ; I should think the ditch or impression was seven or eight inches deep.” Thereupon the following question was propounded to the witness: “What portion of the roadbed did you use or drive over ? ” This was objected to, and the objection was overruled, and an exception was taken. Subsequently the witness was allowed to describe the manner in which he passed over there, against the objection and exception of the defendant, and his answer was, viz.: “ In coming along through there, you would come down in this watercourse, and just as ryou nicely got out, you would rise up over this bank, and unless your horse was going slow, it would give you a sudden lurch in your wagon; I have been thrown from my seat in passing over there just at that place driving at a moderate gait.” After some extended colloquy between the court and the counsel in respect to the witness’ evidence, the court observed : “It is received for no other purpose than showing the condition of the street at that place.” To that ruling the defendant took an exception. We think the exception presents no error.

(5) The mother of the plaintiff was recalled and gave evidence as to the general health of the plaintiff prior to the injury, and the defendant took an exception, and the court observed: “ She may state whether she was in good health,” and to that ruling the defendant’s counsel took an exception. Thereupon the court remarked : “ That is, she may state the condition of her health as she observed it; whatever she observed; ” and the witness proceeded to answer. We think the exception presents no error.

(6) The plaintiff called one Williams as a witness, who testified that his attention had been called to the condition of Center street at the point where this accident occurred prior to the 23d day of April, 1886, and the witness added: “ I drove onto the spot, the ditch, as they call it, and drove over the mound like; I saw the wagon there after it was broken down.” Thereupon the court observed: “Your next attention?” The witness replied: “I always drove around after I made one attempt to cross it.” Thereupon the defendant’s counsel asked to have it stricken out; the court obseved: “1 think it may stand in the case for the purpose of showing the condition of the road at that place; ” defendant’s counsel took an exception. We think no error was committed by the ruling.

(7) The plaintiff called Orlando Brummaghen, who testified that about the last of April or the forepart of May he was at the scene of the accident and that he observed its condition but did not make any measurements there, only looked it over, against the exception of the defendant The court said:.“He may state whether he examined sufficiently careful to give an estimate of the height;” and the witness answered: “Ho, not to really estimate, not knowing; I just merely looked it over; I can’t say as I paid any attention to this mound.” The witness was asked: “While you was there, did you give it any particular attention, or -what did you do with it ? ” This was objected to and the court observed: “ He may state what he did; ” thereupon the counsel for the defendant objected that it was incompetent and improper, and “ what he did there unless it was to measure the altitude and height would not be competent in any circumstances;” thereupon the court observed: “I rule and hold that he may state here what he did, for the purpose of seeing whether he is competent to make an estimation of that measurement; ” thereupon the defendant’s counsel took an exception and the witness answered: “We took off the dirt; I shoveled up the dirt into a wagon and drawed it away; ” thereupon the witness was asked : “ How many loads of dirt did you draw off ? ” This was objected to and thereupon the court said: “The evidence is stricken out as incompetent and immaterial, and anything as to what he did is stricken out” Following that was a further objection and the court replied: “ If he can give an estimate or approximate estimate of the amount of dirt which' formed what is known as an elevation or mound, which extended across the street at the place where that accident occurred, he may give that estimate at or about the time before any change was made.” The defendant took an exception. The court limited the answer to the place of the accident. The witness answered: “I think there was between two and three loads. This mound, with reference to the cross walk, or with reference to the water ditch, was on the west side as near as I can recollect it, was about four feet from the cross walk. At that time it might have been two feet wide on top. I wouldn’t think it spread out, covered on the road; the surface at the bottom was three feet. It might have been about a foot deep, from the top of the mound down to where I say it is three feet across. I should think that it was my judgment that it was a foot. I don’t know how much lower the bottom of the ditch was, along where this mound was, than the face or top of the road, the regular bed of the road where the mound rested.” We think these rulings and exceptions'present no prejudicial error.

(8) Defendant, in his amended answer, set up that the “ claim or cause of action set forth in -the amended complaint herein has never been presented to the board of trustees of said defendant, verified under oath, as is required in the case of town accounts.” Plaintiff produced evidence to the effect that in August, 1886, a claim was made up stating the injuries she had received, with an affidavit of hers attached thereto, to the effect “ that the foregoing statement and demand is true of her own knowledge, except the matters herein stated to he alleged on information and belief, and as to those matters she believes it to be true; ” which was served upon the president of the village in August, by leaving the same with him, and that the same was never returned. The plaintiff called Kirkland, who was, in August, 1886, president of the village, and he testified that after the paper known as the claim was handed to him he gave it to the village attorney or counsel, and he testified that he had no knowledge of its ever being returned to the plaintiff or anyone in her behalf; and he adds: “ I think possibly I called the attention of the trustees in the store; I think that I did; perhaps.”

In chapter 30 of the Laws of 1885, being the charter of the defendant, is found § 58, which reads as follows : “ Ho account or claim against said village shall be audited or allowed unless verified by the oath of the claimant or his legal .representative, as is required in the case of town accounts. All claims for damages against the village shall, in the first instance, be presented to the board of trustees, verified under oath in like manner.” We think the section in question does not apply to an action for negligence or an action ex delicto. Quinlan v. The City of Utica, 11 Hun, 217; S. C., affirmed 74 N. Y., 603: McClure v. Supervisors of Niagara County, 4 Abb., N. S., 202; Cavin v. The City of Brooklyn, 24 Abb. N. C., 279 ; Harrigan v. City of Brooklyn, 119 N. Y., 156 ; 28 St. Rep., 957.

The foregoing views lead to the conclusion that the. verdict should stand.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Frank Dilts, Resp’t, v. Anthony W. Sweet, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Costs—Specific performance.
    Defendant took possession of a paper mill erected for him by plaintiff, and agreed that if some slight defects mentioned were remedied, he would execute a mortgage on the premises to secure plaintiff as agreed. The defects were remedied, but _ he refused to execute the mortgage, when plaintiff brought an action in equity to compel him so to do, defendant therein receded from his agreement and litigated unsuccessfully several questions made upon the trial. Held, that such conduct warranted the action of the trial court in charging him with costs.
    Appeal from a judgment entered upon a decision made at the Oswego special term in an action in equity to enforce the specific performance of a contract set out in the pleading. Upon conflicting evidence the trial court made findings favorable to the plaintiff. Judgment has been entered thereon, and the defendant appeals.

      Reilly & Luddington, for app’lt; Avery & Merry, for resp’t
   Hardin, P. J.

Plaintiff in his complaint alleges “ That said mill was fully equipped in or about the month of January, 1891, and was duly accepted and taken possession thereof by said defendant. ” The trial court found “ That the defendant, about the 2d day of January, 1891, took possession of said paper mill and accepted the same, and has ever since occupied and used the same in the manufacture of paper.” And also found: “ That thereafter and on or about the 27th day of March, 1891, the plaintiff demanded of the defendant that he execute the bond- and mortgage as security for the payment of the contract price for said labor and materials furnished by him. That the defendant claimed some slight defects in the performance of the work under said contract, to wit: that the arch in which the boiler was set had. cracked, and that the roof over the bqiler leaked, and he then promised when these were fixed he would execute the mortgage. That at that time no claim was made by the defendant for damages sustained because the mill had not been completed on the 1st day of December, 1890, as provided in the, contract. That the plaintiff thereupon relaid the arch and repaired the roof in a manner satisfactory to the defendant as he then declared, which said work was done at an expense of about seventy dollars to the plaintiff.”

We think these findings are supported by the evidence. After the findings quoted had been made by the trial judge, we think there was no occasion to yield to the request found as Ho. 27, to wit: “ That the plaintiff failed to complete said mill on December 1,

1890, as he had agreed to do by the terms of said written contract mentioned in the first finding of fact.” If such request had been yielded to, it is not apparent how the result would have been changed. In the second conclusion of law it is provided: “ If said defendant elect to remove the said steam engine hereinbefore described from his said paper mill and return it to the plaintiff, he be credited upon said sum of $797.63 the sum of $175, the actual cost of a like engine made at Baldwinsville, H. Y., which I deem is equitable to allow him in case he elects to restore said engine to said, plaintiff.” Under the circumstances disclosed by the evidence this provision seems to be just and reasonable and to eliminate all questions in respect to the engine.

(2) Whether the defendant should be charged with the costs of this equity action, was a question resting in the discretion of the trial court. To disturb the exercise of that discretion, we should be required to say that it had been abused. Woodford v. Bucklin, 14 Hun, 444; Staiger v. Schultz, 3 Abb., N. S., 377. Assuming that the finding mentioned is correct to the effect that the defendant on the 2d of January, 1891, took possession of the paper mill and accepted the same, and agreed that if the slight defects mentioned in the interview of the 27th of March, 1891, were remedied he would execute the mortgage, his subsequent conduct in receding from that agreement and litigating unsuccessfuly several questions made upon the trial, warranted the exercise of the discretion in regard to the costs as stated by the trial judge.

In Couch v. Millard, 41 Hun, 215 ; 4 St. Rep., 167, it was said: “ When a creditor recovers a debt in an equitable action, he recovers costs also, unless'special and strong reasons to the contrary prevent.” We find no occasion to differ with the learned trial judge in his conclusions of fact or statement of the rules of equity found in his findings and opinion delivered at the special term.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    James T. Outterson, Adm’r, Resp’t, v. Frank Dilts, Impleaded, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Mortgage—Boma vides.
    D. entered into a written agreement with A. and F. whereby it was agreed that he should .furnish them machinery to the amount of $8,500 to he put into a mill, and that the payment thereof should be secured by their bond with a first mortgage on the premises, and that the title to the machinery should remain in B. until the delivery of the mortgage. In an action to restore two mortgages on the mill property to record, they having been wrongfully discharged by A. as administrator, prior to the delivery of the mortgage to B., who at that time had no knowledge of their ever existing, the trial court held that B. was not a bona fide purchaser for a valuable consideration as to his mortgage. Reid, error; that in taking the mortgage he parted with a prior security.^
    Appeal from a judgment entered in Lewis county upon a decision made by the circuit court of that county, a trial having been had without a jury. February 5, 1888, Andrew Outterson, Sr., died intestate. On the 11th of April, 1888, Andrew Outterson, Jr., was appointed administrator of his goods, etc. At the time of the death of the intestate he owned three several mortgages mentioned in the complaint; one of the mortgages was for $900, and another was for $1,000. Andrew Outterson, Jr., while acting as administrator, to wit: on the 4th of February, 1890, caused to be prepared discharges of each of the last two mentioned mortgages, which were executed as administrator; and it is found as a fact “ That no consideration for either of said discharges passed or accrued to said estate in any manner; ” however, they were placed upon record in the clerk’s office of Lewis county immediately after having been executed. Subsequently Andrew Outterson, Jr., was removed and the plaintiff appointed administrator of the deceased’s estate, and brings this action among other things for the purpose of having restored the two mortgages to record, and having the discharges thereof cancelled. Such relief is awarded by the judgment in this case. The defense interposed -by Frank Dilts is to the effect that he took the mortgage for $8,700 in January, 1891, covering the mortgaged premises and placed the same upon record, and that it is a prior lien to the two mortgages of nine hundred and one thousand dollars, respectively. On the 6th of December, 1889, the defendant, Frank Dilts, entered into a written agreement with Andrew Outterson and Francis E. Outterson, whereby it was agreed that he should furnish for the said Outtersons machinery to the amount of $8,500 to be put into a paper mill situated on the premises known as the paper mill lot of about twenty-five acres in Lyonsdale, Lewis county; “ Said contract provided that the machinery should be paid for, by annpal payments of $1,000 for seven years, and $1,500 the eighth year, from and after thirty days from the shipment of said property by Dilts, with interest annually; and also provided that said payments should be secured by the personal bond of said Gutter-sons,-with a real estate mortgage as collateral thereto covering the land in question; which mortgage should be the first lien upon said premises ; and said contract also provided that said bond and mortgage should be made, executed and delivered to said Dilts, together with an official abstract of title showing said mortgage to be a first lien, on the thirtieth day after said shipment of said property as aforesaid.” The said contract also provided that in the meantime the title of the property agreed to be furnished by Dilts should be and remain in him. The-machinery was furnished, the defendant completing the furnishing thereof in September, 1890. Defendant’s right to receive the mortgage became consummate in October, 1890, but the same was not executed until January, 1891, when the parties assembled at Boonville, and “defendant Dilts taking a bond and mortgage of the Outtersons, covering the premises in question, for the sum of $8,700, which was the amount specified in the contract, with interest.” That mortgage was recorded on the 14th day of January, 1891. It is found as a matter of fact, “ that said Dilts never had any actual notice or knowledge of either of said two mortgages of $900 and $1,000, respectively, until some time after the recording of his $8,700 mortgage in question.” It is also found “ that said Frank Dilts was not a bona fide purchaser for a valuable consideration, as to his mortgage of $8,700.” Also, “that the defendant Dilts was not such a purchaser for a valuable consideration, without notice of either of the two mortgages above mentioned of $900 and $1,000 respectively, at the time he took and recorded his $8,700 mortgage.” In the evidence given by Andrew Outterson, Jr., it appears that he told Dilts prior to the execution of the contract for the purchase of machinery, that the real estate upon which it was proposed to place the machinery was mortgaged. The witness says, “I told him the mortgages that were on the mill; there was, in the first place, what we call the Woolworth mortgage of $3,000; then there was a $900 mortgage of mine, and a $1,000 mortgage of Frank’s, given to my father, call it in just square numbers, say nothing about interest, or anything of the kind, $5,000.” As conclusions of law, the court found “ that defendant, Dilts, is not a bona fide purchaser for a valuable consideration, without notice of either of said mortgages, executed to secure the payment of $900 and $1,000 respectively as to his $8,700 mortgage;’’also, “that the plaintiff is entitled to priority of payment of said mortgage executed by Andrew Outterson, Jr., to said Andrew Outterson, Sr., to secure the sum of $900; * * * also for the payment of a mortgage executed by defendant, Francis E. Outterson, to said Andrew Outterson, Sr., * * * to secure the payment of .the sum of $1,000; * *■ * over said $8,700 mortgage held by said Dilts.”

      Piper & Rice, for app’lt; S. S. Trowbridge, for resp’t.
   Hardin, P. J.

On the 6th day of December, 1889, when the Outtersons entered into the contract with Dilts for the purchase of the machinery and placing the same upon the premises, they became obligated to pay therefor, and their liability or debt accrued on the close of that contract. When the machinery was delivered and the contract fulfilled in September, 1890, their obligation to pay for the machinery, as purchasers thereof, became absolute. True, Andrew had agreed to give a first mortgage, and had also stipulated that the title to the property might remain in the vendor as security for the obligation or debt assumed in the purchase of the property; but, according to the finding, it was to remain in Dilts until the arrangement for a mortgage was consummated. Apparently, when the arrangement for a mortgage was consummated, the legal title to the machinery passed from the vendor, and to that extent it may be said that there was a surrender of the title by the vendor at the time of receiving the mortgage of $8,700; and to that extent he “ actually parted with some value or some right upon the faith of the ” mortgage. Cary v. White et al., 52 N. Y., 141. And in taking the mortgage it may be said that he parted with a prior security, to wit, the legal title of the property furnished in pursuance of the contract. Weaver v. Barden, 49 N. Y., 294.

It is found in the twenty-first finding of fact, “ That said Frank Dilts was not a bona fide purchaser for a valuable consideration as to his mortgage of $8,700; ” and in the third conclusion of law it is found, “ That defendant Dilts is not a bona fide purchaser for a valuable consideration without notice of either of said mortgages, executed to secure the payment of $900 and $1,000 respectively as to his $8,700 mortgage.”

Inasmuch as the trial judge found that there was no actual notice, and based his decision on the fact that there was no consideration parted with for the $8,700 mortgage at the time it was taken, as to which, we think, he was in error, a new trial should be ordered.

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

Martin and Merwin, JJ., concur.


author: Hardest, P. J.

text:
    James M. Petrie, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Railroad—Negligence.
    In an action against a railroad company to recover damages for personal injuries caused by defendant’s engine striking plaintiff while in the act of driving across its tracks, there was a conflict of evidence as to whether cars were standing on the tracks which obstructed plaintiff’s view. Held, that the question was one for the jury.

      2. Same—Signals.
    In such case, the complaint alleged that the train approached the crossing without ringiug a bell or blowing a whistle, and upon the trial evidence was given to show that the bell was not rung or the whistle sounded; the court charged that it was the duty of defendant, prescribed by law, to ring a bell or blow a whistle as its train came within eighty rods of a crossing, and refused to charge ‘ ‘ that the defendant was not bound by law to blow a whistle or sound a bell; ” to all of which defendant excepted. Meld, that the law requiring a railroad company to ring a bell or blow a whistle when its trains arrived within eighty rods of a crossing having been repealed, to charge that the same was the duty of defendant was an error requiring a reversal of a judgment for plaintiff.
    Appeal from a judgment entered upon a verdict taken at the Herkimer circuit, and from an order denying a motion for a new trial, made upon the minutes. The verdict was for the plaintiff in the sum of $1,850. Plaintiff was injured while crossing the tracks of the defendant at Bellinger street, the most westerly street in the village of Herkimer, which passed north and south across the tracks of the defendant, which run east and west, by a passenger train coming from the west at 11:44 A. M. of August 2d, 1890.

      C. D. Prescott, for app’lt; Devendorf & Smith, for resp’t.
   Hardest, P. J.

While the plaintiff was traveling along Bellinger street, situated in the westerly part of the village of Herkimer, with his team, on the north side of the defendant’s tracks, he approached the fifth track and passed it, and passed over the fourth, third, second, and while passing over track number one his vehicle was struck and he received the injuries complained of, and for which he recovered a verdict of $1,850. West of Bellinger street, and on the northerly side of defendant's road, freight cars were standing on a branch a short distance from the crossing. Some evidence was given tending to show that when the plaintiff approached the crossing he looked to see whether there were any trains approaching from the west, and that discovering none he drove upon the crossing, and when upon track number one he heard the shriek of a whistle of an engine coming from the west, and he then slapped his horses with the lines and they jumped, but with not sufficient force to clear the vehicle from the engine, and the plaintiff received the injuries mentioned in the evidence and was rendered unconscious. Evidence was given tending to show that in addition to the standing cars on the branch, there was a coal shed, coal office and hen house which may have obstructed the view of the plaintiff. There was some evidence given by the defendant to the effect that there were no cars then on the branch. There being a conflict as to whether the cars were standing on the track which obstructed the view as claimed by the plaintiff, that question was one for the jury. Bleyle v. N. Y. C.& H. R. R. R. Co., 11 St. Rep., 585; S. C., affirmed, 113 N. Y., 626; 22 St. Rep., 993; Sherry v. N. Y. C. & H. R. R. R. Co., 104 N. Y., 652 ; 5 St. Rep., 574. In Greany v. The Long Island Railroad Co., 101 N. Y, 419, it was said, viz.: “Where in such an action there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question as to con-tributary negligence is for the jury. While a person approaching a crossing is bound to make all reasonable efforts to see that a careful, prudent man would make in like circumstances, his failure to see an approaching train does not of itself discharge the company from liability for negligence on its part in omitting the statutory signal.” In closing the opinion in that case the learned judge who delivered it observed: “ Whether she looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether upon the whole and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” Upon the whole evidence we are of the opinion that the question whether the plaintiff was guilty of contributory negligence or not was one for the jury, and that no error was committed in refusing to non-suit the plaintiff.

(2) In the complaint it is averred that the train approached the crossing “ at a speed of more than forty miles an hour, and without ringing a bell or blowing a whistle, and, without any negligence on the part of the plaintiff, run the said engine, locomotive and train of cars against the plaintiff, and .striking plaintiff and plaintiff’s wagon and team of horses, throwing plaintiff from the said wagon with great force, by reason of all which plaintiff was greatly injured, etc.” Upon the trial evidence was given to show that the bell was not rung or the whistle sounded during the distance next westerly eighty rods from the crossing. In the course of the charge delivered by the learned trial judge, he observed: “ There is one thing which it was its duty to do. One guard which the laws have provided for the public as against these great railway corporations as they come to highways is a provision that eighty rods at least from the point of the crossing they shall either sound a whistle, and continue to sound it at intervals from that time until they reach the crossing; or from this point eighty rods away they shall ring a bell, and continue to ring it until the crossing is reached. That is an obligation on the part of this defendant. If the evidence satisfies you that this bell was not rung, then the defendant was guilty of omission of duty; and if you can infer that it was the want of that sound which led the plaintiff to go on as he did, then you will have a right to find for the plaintiff.” He also told the jury in a later portion of the charge as follows: “It is only in case you can find from the evidence (weighing it with and bringing to bear upon it your best judgment and conscience) that the bell was not rung that you can find for the plaintiff. If in this case you come to the conclusion that the bell is not sufficiently proved not to have been rung, then your verdict will be for the defendant.” Hear the close of the charge the defendant’s counsel requested the court to charge as follows: “ That the defendant was not bound by law to blow a whistle or sound a bell.” This the court refused to charge, and to such refusal defendant duly excepted. At a later stage the defendant requested the court to charge : “ That the defendant was not bound by law to blow a whistle or sound a bell.” This the court refused to charge, and to such refusal the defendant duly excepted. Thereupon the defendant excepted “ to that part of the charge in which it is charged that the defendant was under obligation to ring its bell or sound its whistle at least eighty rods when approaching this crossing.”

Our attention is called to Lewis v. N. Y., L. E. & W. R. R. Co., 128 N. Y, 496 ; 34 St. Rep., 373, in which case it was assumed that the statute of 1854, imposing upon railroad companies the duty of ringing a bell or blowing a whistle at eighty rods from a crossing and grade of the traveled public road, was repealed by the general repealing act of 1886. (Chapter 593 of the Laws of 1886.) And it is argued from that case that inasmuch as the attention of the trial iudge in the case in hand was not called explicitly to the fact that such repealing statute had been passed, that the exceptions may be disregarded. In the Lewis case, while the court’s attention was not called to the repeal of' the provision, it was “ conceded the original statute was in force," and the defendant, during the trial of that case, denied its application to the case then before the court. Under those circumstances it was held that the exception taken might be disregarded ; and in the course of the opinion in that case, Finch, J., says: Whatever else may be said as to the purpose and effect of the exception, it is entirely clear that the existence of the statute was in no manner questioned or intended to be raised. Both court and counsel conceded its existence, and were quite excusable for not suspecting its repeal, and the sole controversy was as to its application to the road in question. There is, therefore, no exception to the charge which reached the point now sought to be made.” In the case before us no such concession was made ; on the contrary the learned counsel for the defendant, by an affirmative request, and an exception taken to the refusal thereof, and by excepting to the language of the charge in respect to the ringing of the bell or sounding the whistle as given, seems to have squarely availed himself of the position that the court was in error in regard to the law relating to the subject of ringing a bell or sounding a whistle.

In Kane v. The N. Y., N. H & H. R. R. Co., 132 N. Y, 160 ; S. C., 43 St. Rep., 497, it appears that a request was made to the court to charge that the defendant was not bound as a matter of law either to ring its bell or to blow its whistle, and that the request was refused and an exception was taken. In that case the plaintiff did not claim that the defendant was liable because of its failure to ring a bell or sound a whistle, but the sole ground of liability alleged in the complaint and proved on the trial was the mismanagement of the gates.

Under such circumstances it was said by the learned judge who delivered the opinion, that “ whether the bell was rung not having been made an issue on the trial, and the defendant’s liability for the injury not being predicated upon the failure to ring a bell or sound a whistle, it was- not error for the court to refuse to charge as requested.” But, as we have seen, in this case, the plaintiff relied upon the allegation in the complaint that the bell was not rung and the whistle was not sounded, and upon that allegation gave evidence from which the j ury were asked to find that the defendant had been guilty of negligence, thus making this case different from the Kane case. Nor do we think the exceptions taken by the defendant can be disregarded because of § 421 of the Penal Code. That section imposes a burden or duty upon an engineer “ driving a locomotive on any railway in this state,” and provides that he shall be guilty of a misdemeanor if he “ fails to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities), or to continue the ringing such bell or sounding such whistle at intervals until such locomotive, and the train to which the locomotive is attached, shall have completely crossed such road or street.” That statute differs quite essentially from the provisions of the Laws of 1854, which imposes a duty upon the corporation itself. See chap. 282 of the Laws of 1854, § 7, p. 611.

Chapter 593 of the Laws of 1886 repealed “ the first paragraph of § 7 of chapter 282, viz.: from the beginning of said section to and including the words ‘ by reason of such neglect’ ” In chap-565 of the Laws of 1890, that portion of chapter 282 of the Laws of 1854 embraced in §§ 4 to 15 both inclusive, and §§ 17 and 18, were repealed, and ,the language found in § 181 of the act of 1890 was not intended to continue in force or revive the provisions of that part of § 7 of the Laws of 1854 which was repealed by the statute of 1886. See Session Laws of 1890, p. 1134. We think that part of the charge which instructed the jury that it was the duty of the railroad company to ring its bell or sound its whistle eighty rods before approaching the crossing in question, to which an exception was taken, was erroneous, and that the exception presents an error requiring a reversal of the order and judgment.

Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event

Martin and Merwin, JJ., concur.