text:
    LATHAM Y. AVERY, Respondent, v. THE CITY OF SYRACUSE, Appellant.

      Oity of Syracuse — duty of, to repair its sidewalks — the owner and not the tenant of adjoining premises is bound to repair — 1860, chap. IB, sec. 3 — what evidence of a defeat is admissible to cha/rge the city with notice of it — how long it mustjiame existed.

    This action was brought by the plaintiff to recover damages for injuries sustained by reason of his having fallen, while passing along a defective sidewalk immediately adjacent to premises of which he was then in possession under a lease. The defendant’s charter conferred upon it power to make and repair sidewalks, and imposed a duty upon every owner of real estate, “in front of whose premises a sidewalk or gutter has been heretofore made, to keep the same at all times in suitable and proper repair.”

      Held, that in the absence of any evidence to show that the plaintiff had by the terms of his lease agreed to keep the sidewalk in repair, or that he had there erected a nuisance or obstruction which caused the injury, the city was liable for the damages occasioned by the defect.
    Upon the trial the plaintiff was allowed to show that other persons had tumbled down upon the sidewalk and been injured while it was out of repair.

      Held, no error.
    The judge, in charging the jury that it was for them to decide whether the defect had existed for a sufficient length of time to charge the city with notice thereof, said that “ not in order for even a week would be sufficient. Some courts have held a week, some a little longer.”

      Held, error.
    Appeal from a judgment in favor of the plaintiff, entered on a vprdict, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was' tried.
    The action was brought to recover damages sustained by the plaintiff in consequence of falling upon a defective sidewalk on Walnut street, in the city of Syracuse, on the 20th of July, 1879.

      Martin L. Knapp, for the appellant.

      Charles B. Sedgwick, for the respondent.
   Hardin, J.:

Plaintiff with his wife, on the morning of July 20, 1879, was returning from church and in passing over a sidewalk alleged to be defective fell and received injuries. This action is to recover therefor. At the time of the injuries plaintiff was lessee of the premises adjacent to the sidewalk, but there was no covenant t*o repair given by the plaintiff. Nor was there anything in the terms of the lease, or elsewhere disclosed, which cast the duty of repairing or maintaining the sidewalk in repair upon the plaintiff. .The stringers were decayed and looked “just like any piece of rotten wood.”. There was evidence tending to show that the walk had been in a defective condition for some time, and sufficient to warrant the submission to the jury of the question whether the defendants had constructive notice of its defective condition, and having such notice by lapse of time failed of its duty in the premises by omitting to make, or cause to be made, suitable repairs. The charter of the defendant confers upon its common council power to make and repair sidewalks, and clothes them with the powers and charges them with the duties of commissioners of highways. (Sec. 1, tit. 6 of the Revised Charter.) The same- charter also imposes a duty upon every owner of real estate, “ in front of whose premises a sidewalk or gutter has been heretofore made, to keep the same at all times in suitable and proper repair.” (Sec. 2 of tit. 7 of Revised Charter; same being sec. 3 of chap. 13 of Laws 1860.)

The sidewalk had been in use eight or nine years, and the city had acquiesced in its use, and it was proper to submit to the jury whether the city had not by its use adopted it as one of the walks the city was in duty bound to see was kept in repair for the use of the public. (Rehberg v. The Mayor, 27 Alb. Law Jour., 235.) The case differs from Saulsbury v. The Village of Ithaca (24 Hun, 12), as there a walk had been but recently built and the corporate authorities had not in a long lapse of time acquiesced in its location and purpose as in this case.

Boardman, J., says in that case: “ If the decision is to build and the work is done, the corporation becomes responsible for any negligence or unskillfulness in the manner in which it is done, and for any negligence in maintaining it in a safe condition thereafter.”

There had been no adoption of the sidewalk by the corporate authorities, and no such lapse of time as in the case before us, from which the jury might have inferred an adoption of the sidewalk in question. (Requa v. The City of Rochester, 45 N. Y., 134; Todd v. City of Troy, 61 id., 506; Walker v. City of Lockport, 43 How. Pr., 366; Phelps v. City of Mamkato, 23 Min., 276.)

It is contended in the appellant’s argument submitted to us that “ the duty imposed by defendant’s charter upon plaintiff’s lessor to repair was transferred to the plaintiff when he leased and went into the exclusive possession of these premises, as he did some three-months prior to the time of the accident.” How was such duty transferred ? First. There was no covenant to repair given by the lessee. Second. There is nothing in the charter which charges such ' duty upon a tenant. The language is explicit that it shall be the duty of “ every owner.”

This liability to repair sidewalks did not exist at common law, it has its origin in statutory enactments, and persons not named in the terms of the statute, or in some express covenant, are not burdened with the obligation or bound to such a duty. (The Village of Fulton v. Tucker, 3 Hun, 529.)

It might as well be contended that the lessee became liable to pay highway taxes by simply becoming a tenant of premises. If he had created a nuisance or an obstruction in the walk, then he might be liable for the consequences following therefrom (Swords v. Edgar, 59 N. Y., 28), and, of course, any injuries he received in consequence thereof would have been directly traceable to his own-wrong, and therefore he would not be in a situation to recover by reason thereof.

We think, upon the facts in this case, the neglect was that of the city, or “the owner’'’ of the .adjacent premises, and that it was not a neglect of the plaintiff, the lessee, and that he is not debarred of the common rights of the public to have sidewalks suitably kept in repair for its use, and that injuries sustained by the plaintiff may be'recovered if the same occurred without his fault. The jury-have so found that the plaintiff is not chargeable with any negligence. The case of Doupe v. Genin (45 N. Y., 119) does not aid the defendant, which holds that a landlord is not bound to repair in case of fire, unless he has so expressly covenanted. Nor does the case of Witty v. Mathews (52 N. Y., 512), where it is held that the obligation of a landlord to repair demised premises rests solely upon contract as between himself and his tenant. Those cases are dealing with a landlord’s obligations to his tenant, and, of course, do not apply to the questions before us.

To bring the plaintiff within the argument of the appellant there should have been some evidence that the tenant had expressly covenanted to repair the premises, or especially the sidewalk in question, or had erected or maintained a nuisance which caused the injuries complained of. In the case in hand there is no ground upon which to rest an averment of duty to repair upon the plaintiff. (Melody v. Reab, 4 Mass., 471; Gibson v. Jenney, 15 id., 205.)

The point made that it was error to allow evidence that other persons had tumbled down upon and been injured upon the sidewalk in question, while out of repair, was decided against the appellant’s views in Quinlan v. The City of Utica (11 Hun, 218), by this court, and that decision was affirmed in 74 New York, 603. "W e follow that case, notwithstanding several cases are found on the other side of the question. (See Hudson v. Chicago & N. W. R. Co., 27 Alb. Law Jour., 115, and cases there cited; Blair v. Pelham, 118 Mass., 420.)

The point made as to the judge’s submission to the jury of the question of notice of the defect from lapse of time is untenable. The whole question of whether the defendants had notice was left to the jury. (Rehberg v. The Mayor, 16 Weekly Dig., 178.) When referring to the necessity of notice to the defendant the judge said in his charge, viz.: N ot in order, for even a week would be sufficient. Some courts have held a week, some a little longer.” * * *

After further comments as to that subject he adds, viz.: “ That is a question of fact for you from the evidence. Take the evidence on the part of the plaintiff and defendant, and if there was sufficient time elapsed to give the city what is called constructive notice they are just as much bound by the constructive notice as though notice had been actually served upon them.”

Following this charge the appellant’s counsel said, viz.: “ I want to except to that portion of the charge in which your honor states that a week is sufficient to constitute constructive notice under the circumstances of the case. Exception as above taken for defendant.”

Taking all the language used in the charge it is obvious that whether the defect had existed a sufficient length of time to warrant the jury in inferring actual notice or not was not properly left as a question of fact to the jury.

The trial judge in dealing with the question of actual notice, and with such notice of the defective condition of the walk as would warrant an,inference that the city authorities knew of the defect and thereafter neglected to cause its removal, was not very felicitous or perspicuous.

He said in one part of his charge, viz.: “Not in order, for even a week would be sufficient. Some courts have held a week, some a little longer.” The jury may have understood that the court intended to instruct them, as a matter of law, that if the walk was “ not in order for even a week would be sufficient to render the city liable.”

We cannot approve of such instruction, and we think the defendant’s exception presents an error calling for a reversal of the judgment.

Plaintiff, in his testimony, said: There is a difficulty in describing the exact board where I fell; I only know I was about a third of the distance; the walk was about three feet wide, with stringers two by three, which were rotted through at that point. * * * The witness then added: The boards were, more than half of them, loose, and all of them small. The counsel for defendant then said: “ To that I object and ask that the answer be stricken out.” The court “ refused to strike out, and held it was competent evidence as to how the boards were.” We think the exception presents no error.

The witness Chandler, who was familiar with the sidewalk, stated: “ I don’t know the place where plaintiff was hurt.” He was then asked, viz.: State whether, at the time of Mr. Avery’s fall, the sidewalk was in the same condition that it had been^for several months. This was objected to as immaterial and incompetent, and on the further ground that the question does not fix the place, and it was allowed and the witness said it was. It was a competent question,, and the evidence which it called for bore upon the question of notice of defects to defendants.

The evidence tended to show that the walk needed repairs. (Corbin v. The Village of Canajoharie, 16 Weekly Dig., 188.) In Reed v. The Central Railroad Company (45 N. Y., 580) it was stated by Allen, J., that “ the fact that new ties were put on the road after the accident, and especially the next summer, in the vicmity, did' not tend to prove that the road was out of repair and dangerous at the time of the injury to the plaintiff.” This case differs from that one; for the error we have pointed out we are constrained to order a new trial.

Smith, P. J., and Barker, J., concurred.

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


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    JAMES S. McMASTER, Respondent, v. MARSHALL T. DAVIDSON, Appellant.

      Manufacturing corporation — liability of stockholders for its debts — they are liable for payments falling due upon contracts made before they became stockholders — what is a sufficient amorment of the recoree'y of a judgment against the company.

    In an action brought against a stockholder in a manufacturing corporation to recover a debt due from it the complaint alleged, among other things, that no, certificate showing that the capital stock was paid in had been filed; that the defendant became a stockholder in the corporation on or about October 7,1875; and that on or about June 10, 1875, the company entered into a contract with one Black to insert an advertisement in a journal published by him for one year, commencing in July, 1875, for the sum of $100, payable quarterly.

      Held, that although the defendant was not a stockholder at the time the contract was made, he was liable for the installments falling due thereunder after he became and while he continued to be one.
    The complaint alleged that within one year after the debt became due an action to recover the same was brought against the company and a judgment recovered against it, upon which an execution had been issued and returned unsatisfied. Upon a demurrer to the complaint:

      Held, that the averment .was sufficient to indicate that the judgment was recovered for the same debt which was sued for in this action, and that having been recovered for the whole debt it included the three installments for which the defendant was liable.
    Appeal from a judgment of the- Special Term overruling the defendant’s demurrer to the amended complaint, and rendering judgment in favor of the plaintiff for the sum of $480.42.
    This is an action brought by the assignee of a judgment creditor of a corporation known as the ^Telescopic Hydraulic Elevator Company, against the defendant, on the ground that he is a stockholder of -said company, and that no certificate showing that the capital stock had been paid in was filed as required by the general manufacturing act, under which the corporation was organized.

      Tlie complaint, after, alleging the incorporation of the company under the aforesaid act, alleged “ that the defendant became a' stockholder in said company on or about the 7th day of October, 1875, and has been ever since, and now is, a stockholder in said company, and the amount of stock held by him in said company,'from on or about said 7th' day of October, 1875, to this time and now held by him, is seventy-five shares of one hundred dollars each, amounting to the sum of seven thousand five hundred dollars.”
    It then alleged “that on or about the 10th day of June, 1875, the said company entered into a contract ” with one Austin Black, to insert an advertisement in the journal published by him, “ for one year, commencing in July, 1875, number, for the sum of $400, payable quarterly.”
    The complaint then proceeded to allege the performance of the contract by Black, the recovery of judgment thereon by Black for $581.18, being $442.84 due on the contract and $138.34 costs, the return of execution thereon unsatisfied and the assignment of the judgment to the plaintiff. The complaint demands judgment for $412.50, the amount of the contract debt, with interest from the time the payments became due.

      Sewell (& Pierce, for the appellant.

      Peck dc Robinson, for the respondent.
   Hardin, J.:

The complaint alleges that the defendant became a stockholder on the 7th of October, 1875, in the Telescopic Hydraulic Elevator Company, organized under the general manufacturing act, and that as such stockholder he is liable for the debt set out in the complaint. The debt had its origin in a contract made by the company on the . 20th of June, 1875, and its fulfillment, which contract was for the services of one Black, in publishing in his journal an advertise^ ment, “for one year, commencing in July, 1875,” for the sum of $400, payable quarterly.

The defendant demurred to the complaint, upon the ground that it did not contain facts sufficient to constitute a cause of action. The demurrer was overruled and judgment ordered for the plaintiff for “ the amount of the three last payments which become due on said contract.” The defendants having appealed from the judgment of the Special Term, claims before us that the judgment is erroneous: First. “ Because the defendant was not a stockholder when the contract, under which he is sought to be made liable, was entered into.” Second. * * * “ That the action against the company was for the whole amount, and no action was brought for either of the installments.” Thircl. * * * “ It was error to include in the judgment the sum of one hundred dollars, which became due December 1, 1875, and the like sum which became due March 1, 1876, as they became due more than one year before the action was brought against the company, as that was not commenced till March 5, 1877.” Section ten provides, viz.: “All the stockholders of every company incorporated under this act shall be severally and individually liable to the creditors of the company in which they are stockholders to an amount equal to the amount of the stock held by them, respectively, for all debts and contracts made by such company, until the whole amount of the .capital fixed and limited by such company shall have been'paid in and a certificate shall have been made and recorded as provided in the following section.”

If the section contained only the words “ contracts made ” in prescribing what the stockholders should be liable for, the argument now made to us would avail the defendant, as the contract under which Black carried on the publication was made in June, prior to the 7th of October, 1875, when the defendant became a stockholder.

But the statute declares the Stockholders shall be liable “ for all debts * * * made by such company.” According to the terms of the contract there was no debt due from the company to Black until after he had performed services for the company under his contract with it, and upon the request named in the contract.

Such services became due at the end of each quarter, and then it was that a debt arose against the company. (Oviatt v. Hughes, 41 Barb., 542; Garrison v. Howe, 17 N. Y., 465.)

In the ease last cited, Denio, J., said: “We do not think a debt for lumber furnished under the contract, subsequent to its execution, can be said to have been contracted when the agreement was signed; * * * and there is no debt in existence until lumber has been, delivered.” Moss v. Oakley (2 Hill, 268), cited by the appellant, does not aid the position taken here by the appellant.

That was a case where Bronson, J., said: “In the absence of any suggestion to the contrary, it is but reasonable to presume that the debt was contracted at the time the note was made, and’ then the averment in the declaration is in substance that the defendant was a stockholder at the time the debt was contracted.”

Nor does Freeland v. McCullough (1 Denio, 426) aid the appellant. Jewell, J., said there, that “ the averment that the defendant was a stockholder at the time the debt was contracted, for which the draft was made, is sufficient.”

Nor does Tracy v. Yates (18 Barb., 152) support the position of the appellant, as Judge Rosevelt carefully shows that Mrs. Yates was not a stockholder when the notes were made which were the evidence of debt. They were made prior to 15th of January, 1850, and she became a stockholder March 4, 1850. (See, also, Phillips v. Therasson, 11 Hun, 144.)

That an action may be brought by a single creditor against a stockholder for a debt contracted by the company was maintained by the decision of Weeks v. Love (50 N. Y., 569).

Same case was approved in Pfohl v. Simpson (74 N. Y., 142), in which case, upon certain equities appearing in a bill, I "granted an injunction against several creditors and brought them and the stockholders before the court for an equitable distribution arising out of the stockholders liability.

Although the right to an equity suit was appr'oved in the Court of Appeals, the general doctrine’ as laid down in Weeks v. Love (supra) was approved.

Second. The complaint avers that a judgment was recovered by Black within one year after said debt become due, and we think that averment sufficient- upon a demurrer admitting it, to indicate that the judgment there was for the same debt, for which the plaintiff has recovered here, at least so far as the recovery here. The greater includes the lesser. That there was a recovery there for four quarters, is to be taken as" including the three installments recovered here. The case of Shellington v. Howland (67 Barb., 14) is not in point. There the recovery against the company had been for only &200 in a Justice Court, and this court held that a recovery could not be had beyond the amount for which the judgment was had against the company.

Third. Demurrer must be held to admit the allegation in the complaint that within one year “after said debt become due,” Black brought an action against the company for the debt.

If the defendant has a defense of the statute of limitations he must set up the same in an answer after leave obtained. It is not available on demurrer to the complaint. The judgment should be affirmed.

Smith, P. J., and Macombek, J., concurred.

Judgment affirmed.


text:
    WARREN H. KELLY, Respondent, v. JOSEPH F. BONESTEEL, Appellant.

      Costs upon an appeal from a judgment of a Justice’s Court — in compa/ring the verdicts no interest is to be added to the first— Code of Civil Procedure, sec. 3070.
    In determining whether a verdict rendered upon an appeal from a judgment of a Justice’s Court “ is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below,” as provided in section 3070 of the Code of Civil Procedure, the second verdict must be compared with the first, and not with the first as increased by the interest accruing upon it from the time it was rendered to the time of the recovery of the second one.
    Appeal by the defendant from an order of the Monroe County Court, refusing a motion to set aside a judgment so far as it awards costs to the plaintiff.
    The plaintiff recovered on the 16th of August, 1881, a judgment against the defendant for seventeen dollars and fifty cents damages.
    The defendant appealed, and the new trial in the County Court of Monroe county resulted in a verdict in favor of plaintiff for eight dollars and twenty-five cents on the 11th of September, 1882. The interest on the verdict in the Justice’s Court from 16th of August, 1881, to 11th of September, 1882, is-one dollar and twelve cents.
    The action was for personal services rendered in taking care of cattle, and the damages were unliquidated.

      II. II. Woodward, for the appellant.

      George W. Hall, for the respondent.
   Hardin, J.:

Under section 3070 the appellant contends that the interest upon the first recovery should be computed and added to the verdict, and then the last verdict subtracted from that amount, and the difference found to be ten dollars and thirty-seven cents, and that as that difference is more than ten dollars appellant should recover costs.

The language of the section to be considered is, viz.: “ If an offer is not made and the verdict, report or decision upon the appeal is more favorable to the appellant by the sum of ten dollars than the verdict or decision in the court below, * * * the appellant is entitled to recover costs upon the appeal, otherwise the respondent is entitled to recover costs.”

Section 371 of the Code of Procedure contained substantially the same provision. It has been determined that the interest upon the first verdict cannot be added to it, and the second verdict subtracted from the amount so ascertained. That one verdict must be subtracted from the other, and if the difference is riot more than ten dollars then the appellant is not entitled to recover costs but must pay costs to the respondent. (Smith v. May, 32 How., 224; Whitney v. Wells, cited in above case and decided in 1864; Humiston v. Ballard, 39 id., 93; S. C. approved, 40 id., 44, Third Dept.) Baldwin v. Brown (37 How., 387) was decided without computing interest on the offer from the time it was made,” and is not an authority under which the rule contended for by the appellant can be sanctioned. In Pearce v. The Northern Central Railroad Company (5 Weekly Dig., 566) this court held that “ interest is to be left out of consideration in determining the question of costs.” (See, also, Chapin v. Skeels, 20 Hun, 449; Pike v. Johnson, 47 N. Y., 2; Johnston v. Catlin, 57 N. Y., 652; Snyder v. Hughes, 27 Hun, 374.)

Interest cannot be added to the sum offered, in determining whether a judgment is more favorable when the damages are unliquidated. (Bathgate v. Saskin, 63 N. Y., 267.)

We are of the opinion that the order made by the County Court accords with the weight of authority upon the point involved and, therefore, should be affirmed.

Smith, P. J., and Barker, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Hakdin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE MILLS WATER-WORKS COMPANY, Appellants, v. JOHN G. FORREST and Others, Assessors, and THOMAS J. GAMBLE, Supervisor of the Town of Mount Morris, Respondents.

      Taxation — construction of an agreement exempting a wates,jworhs company from village taxes — the fact that a private corporation furnishes water to a village does not entitle it to exemption from, taxation.

    The relator, a private corporation organized in pursuance of the statutes providing for the formation of water-works companies, entered into an agreement with a village by which it agreed to supply the latter with water- for extinguishing fires and two water troughs and drinking fountains. The village agreed in consideration thereof to pay a stipulated yearly rental, and “that the said water-works are to be exempt from all corporation taxes” during the continuance of the agreement. The company also supplied water to the residents of ‘ the village for pay, applying the receipts therefrom to its own private uses.

      Held, that although the agreement exempted the corporation from taxation by the village, it did not relieve it from its liability for town, county and State taxes.
    That it was not entitled to claim exemption from such last mentioned taxes on the ground that it was one of the necessary means or agencies for the carrying on of the village government, or that its property was held for specific public uses in trust for governmental purposes.
    Appeal from an order made at a Special Term, denying the petition of the relator.
    The relator obtained a certiorari to review an assessment made by the assessors of the town of Mt. Morris upon its property. Upon the hearing the prayer of the petition was denied and the assessment vras held to be valid. The proceeding was brought under chapter 269 of the Laws of 1880.
    The relator is a private corporation organized pursuant to the statute in relation to the formation of water-works companies, passed in 1873 and amended in 1876. (See chap. 737, Laws of 1873, and chap. 115, Laws of 1876.) The Water-Works Company made a contract with the village to furnish water for extinguishing fires and for two water troughs and drinking fountains. The contract was made in pursuance of the power conferred upon villages generally by chapter 129 of 1879, and upon the village of Mt. Morris specially by chapter 365 of that year. By the contract the village agreed to pay an annual rent therein specified, and as a part of the consideration the contract provided “that the said water-works are to be exempt from all corporation taxes during the continuance of this agreement.” The company besides fulfilling this special contract was engaged in the business of supplying water to the inhabitants of Mt. Morris for pay, enjoying the receipts as private gains.

      W. A. Sutherland, for the relator, appellant.

      J. A. c& J. JR. Ycunderlip, for the assessors, respondents.

      T. J. Gamble, for the supervisor, respondent.
   Hakdin, J.:

In the matter of the application of George W. Phelps for a mandmius to the trustees of Mt. Morris, we held that a taxpayer in the village of Mt. Morris could not compel the village authorities to lay an assessment for municipal purposes upon the WaterWorks Company, as the company held a valid contract, made with the corporation, exempting it from taxation by the village'of Mt. Morris. (In Matter of Phelps, 25 Hun, 60.) Presumptively this corporation is liable to taxation for town, county and state taxes. (1 R. S., 387, § 1.) Hnder the general rule that private corporations are liable to assessment and taxation this company would fall. (People ex rel. M. F. Ins. Co. v. Comrs., 76 N. Y., 73; The People ex rel. The New York Elevated Railroad Comrs., 82 id., 465.) The burden, therefore, of establishing its right to exemption

is cast upon the appellant. The principle laid down by the Court of Appeals in the City of Rochester v. The Town of Rush 680 N. Y., 307) is invoked. We think the principle of that case does not aid the appellant.

There the reservoir was erected for the public benefit, and was held by the city of Rochester for public purposes, and as there was no legislative declaration that it should be subjected to taxation, it was held to be exempt and that the tax imposed by the town was illegal. Here it is the duty of the appellant to show a statute or some general principle of law or of publjc policy to make out its right to exemption. (People ex rel. v. Comrs., 82 N. Y., 465.)

The property of the appellant was not brought into existence by money raised by taxation, as in the other case of the property sought to be taxed in the City of Rochester v. Rush (supra). Nor was the property brought into existence by a municipality as a part of the machinery needed to carry forward its functions as an agent of the state in its governmental relation to the state. (City of Louisville v. Commonwealth, 1 Duvall, 297.) It was not a part of the political power of the state.

Nor was the property, made subject to taxation, “necessary to the operations of the government,” as insisted by the counsel for the appellant. If the property in question was a necessary instrument of government or a necessary operation of the government, then the principle laid down in Osborn v. United States Bank (9 Wheat., 738) and kindred cases would be applicable.

Nor was the property held for “ specific public uses in trust for governmental purposes ” so as to bring it within our decision in Leonard v. Reynolds (7 Hun, 73).

Constructing water-works for the purpose of supplying municipalities, or the citizens thereof, may be entirely meritorious and commendable and promote ¡¡the public good; yet the object in this instance is to put gains and profits into the pockets of the stockholders. This corporation, like many others that could be instanced, such as railroad companies, turnpike companies, telegraph companies, may serve the public municipality for pay, or its citizens, yet the organization has for its principal object the realization of profits for its stockholders. Before such a corporation shall be withdrawn .from the field of taxation there must be a clear legislative intent.

None such appears. The general statute subjects it to taxation, and we cannot say because it sells water to a municipality, or to its citizens, that public policy requires its exemption from taxation. We concur with the learned judge, who said in his opinion at Special Term, viz.: “ The true rule in regard to taxation in such cases is, that a private corporation, occupying or using the property for purposes of private gain, is not exempt from taxation, although the corporation may perform a public duty or insure a public use. (Rex v. Terroit) 3 East., 506; Reg. v. Shee, 4 Adol. & E. [N. S.], 2; Mersey Docks v. Cameron, 11 H. L. C., 479 ; Railroad Company v. Penniston, 18 Wall., 5, 31; see, also, West. Union Tel. Co. v. Texas, 26 Alb. Law Jour., 229.)

We think the order should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., concurred.

Present — Smith, P. J., Hardin and Haight, JJ.

Order appealed from affirmed, with ten dollars costs, to be divided between the respondents, and disbursements.


text:
    GAZENA C. JONES, Appellant, v. ORVIS H. ZOLLER and Others, Respondents.

      Marriage — by a’ wife in good faith after a five years’ absence of her husband — 3 S. iS. (7th ed.), 2832, sec. 6 — it is not essential to the validity of the ma/rriage that the husband should lease the general locality where he formerly resided.

    In an action to recover dower it appeared that the plaintiff while living at Goveneur had, in 1875, married one Jones, and thereafter removed with him to Pamelia, where she lived with him as his wife until his death in 1880. Prior to her marriage to Jones, and in 1855, the plaintiff had married one Firth and lived with him at various places until 1858, when they went to Syracuse and there resided until 1860, when the plaintiff separated from him and went to live with her relatives in Jefferson county. With the exception of seventeen months during which he served in the army, and portions of 1863 and 1864 when he worked at Pitthole, Pennsylvania, Firth continued to reside in Syracuse until about- June, 1864, when he went to Olisco, a town distant about thirteen miles from Syracuse, where he has ever since resided. He saw and corresponded with the plaintiff .at intervals down to March, 1864. In June, 1864, the plaintiff received a letter from a person whom she knew to he a friend of her husband stating that the latter had died suddenly of cholera on Lake Erie, that his body had been thrown overboard and that the Writer was with him at the time of his death. The letter was shown to the brothers and sisters of Firth, and to the plaintiff’s relatives, by whom investigations were made hut nothing was learned of the writer or of Firth. The plaintiff heard that Firth was alive in 1876, and she saw him in 1879.
    Upon the trial the court held that section 6 of the Revised Statutes (7th ed.), 2332, providing that “ if any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to he living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall he void only from the time that its nullity shall be pronounced by a court of competent authority,” applied only to cases in which the person absented himself from the general locality in Which he lived; and that as Firth continued to live in the same general locality during the time of his absence from his wife there was no question to be submitted to the jury.

      Held, error.
    Appeal from a judgment dismissing the complaint, entered upon a verdict directed for the defendants at the Jefferson Circuit.
    The action was brought by the plaintiff to recover dower in several parcels of land described in the complaint. The plaintiff alleged that she had intermarried with and become the wife of James Jones, now deceased, and continued his lawful wife until the time of his death, which occurred on the 28th of October, 1880, and that he was seized in fee simple of the said lands. The plaintiff was married to Jones in October, 1875, in the city of Watertown. She was married at Deer Diver, Lewis county, to John J. Firth in October, 1855. Firth was alive and was present at the trial now under review, which was had at Watertown in April, 1882. The plaintiff asked at the close of the evidence to have submitted to the jury the question as to the absence of Firth, and the court refused and the plaintiff excepted. The court directed a verdict for the defendants and the plaintiff excepted.

      Elon R. Brown, for the appellant.

      O’Brien <& Emerson, for the respondent Zoller.

      Porter <& Walts, for the respondents Fleming and Yan Ness.
   Hardin, J.:

J ohn D. Firth was intermarried with the plaintiff in October, 1855, and they lived and cohabited as husband and wife at Deer Diver, Pamelia Four Corners and in Troy until 1858, when they removed to Syracuse and there resided until 1860, when the plaintiff separated from him and went to reside with her relatives in Jefferson. 'In December, 1861, Firth entered into the United States army and served some seventeen months and then returned to Syracuse and resided there and in surrounding towns, except in 1863 and 1864 when he was at work at Pitthole, Pennsylvania. • From that place he returned to Syracuse, and plaintiff visited him at Syracuse and talked of returning to live with him, and he gave her fifty dollars to aid her in a millinery business she was conducting in Goveneur. Firth engaged a house to live in, but shortly after received a letter from her that stated she had concluded not to return to live with him. In March, 1864, he called upon her in Goveneur. In June, 1864, plaintiff received a letter from one George W. Shepard, whom she knew in Troy to be her husband’s friend, which purported to have been written on shipboard on Lake Erie. It stated that Firth had died suddenly of Asiatic cholera and that his body had been' thrown overboard, and that the writer of the letter was with him at the time of his decease. This letter was shown to the brothers and sisters of Firth and the relatives of the plaintiff, by whom an investigation was made, but nothing was learned of the writer or of Firth. About the time the letter was written Firth went to Pitt-hole, Pennsylvania, and remained some eighteen months. He then returned to Syracuse where he remained a short time, after which he went to the town of Otisco, Onondaga, some thirteen miles from Syracuse, where he has since resided. Plaintiff heard nothing of Firth from 1864 until after her marriage to Jones, of Pamelia, in October, 1875. She went to reside with Jones as his wife, and continued so to reside with him until about 1st of February, 1880. Jones died in 1880 seized of the 2,000 ácres of land described in the complaint. In June, 1876, plaintiff learned that Firth was alive, and she saw him in 1879. . Upon the trial the court refused to submit any questions to the jury and ordered a verdict for the defendants, and a judgment has ■ been entered upon that verdict dismissing the plaintiff’s complaint. Was the ruling at the circuit correct?

■ Section 6 of the Eevised Statutes (vol. 3, 7th ed.), 2332, reads, viz.: “ Section 6. If any person whose husband or. wife shall home absented himself or herself for the space of five successive years, without being known to such.person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall' be pronounoed by a court of competent authority.”

Two leading facts must be found to bring a case within the terms of this statute : First. “ That the husband has absented him • self;” and, secondly. “That he has not been, known to the wife to be living during the ‘space’ of five successive years.” The learned circuit judge assumed that the latter requirement of the statute was manifestly known, and assumed correctly, as we think, that the plaintiff did not know that Firth was living when she intermarried with Jones, and more than the “space of five successive years” hac elapsed without her having any knowledge that Firth was living.

But he held that the other provision of the statute could not be satisfied by the evidence then before the court, and that in that regard there was no question for the jury; and he stated the result reached by him was because he held the statute to mean, when it says “ absented himself,” that the husband has “ absented himself from the general locality in which he lived ” and he added, “ as Firth has lived in the same general locality and has not been absent from the same general locality in five successive years,” that the case could not be submitted to the jury. This construction is too narrow. The words “ absented himself ” evidently refer to a withdrawal of his whereabouts from his wife, his relatives, from the ordinary and usual opportunities of identification. That withdrawal from his wife and family which would, after the lapse of five successive years, lead naturally to the inference that death had ensued. The evidence tended to support the averment that Firth had “ absented himself,” and would have warranted a verdict to that effect. (McCartee v. Camel, 1 Barb. Ch., 456; Sheldon v. Ferris, 45 Barb., 124.) The learned circuit judge, therefore, erred when he refused to submit to the jury the question as to whether Firth had “absented himself,” so that the plaintiff was protected in her second marriage by the statute quoted. By the common law the second marriage of the plaintiff would have been void. However, by an early statute of this state such a marriage, after an absence of five years of the husband, the party marrying would have been exempt from the penal charge of bigamy. ( Williamson v. Parisien, 1 Johns Ch., 389.) The fifth section of the Revised Statutes (3 R. S. [7th ed.], p. 2332) in terms declares “ that no second or subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless: First. The marriage with such former husband or wife shall have been annulled or dissolved for some other cause other than the adultery of such person; or Second. * * . * Every marriage contracted in violation of the provision of this sec tion shall, except in the case provided for in the next section, be absolutely void.” The latter part of this section in its words of exception saves from the terms of its inhibition such second marriages as fall within the permissive terms of section -6, which we have already quoted.

It would seem, therefore, quite clear that such second marriages as come within the terms of the sixth section are not prohibited, nor are they declared void. But they may be declared void by a court of competent authority; “ and they are void only from the time that the nullity shall be pronounced” by such a court.

Such seems to be the construction which was sanctioned by the court in Griffin v. Banks (24 How., 215), and Clerke, J., said such a marriage “has the same force and effect as if when it was solemnized, McCullom (the first husband) was not alive.” And he then assumed to dispose of the case upon the assumption that such a second marriage was as “ legal in its origin and continuance as any other marriage.” Following that authority we may not say that the erroneous ruling we have pointed out worked no injury to the plaintiff. (See, also, Cropsey v. McKinney, 30 Barb., 47; Brower v. Bowers, 1 Abb. Dec., 223; Blott v. Rider, 48 How., 94; 1 Scrib. on Dower, 100; Spicer v. Spicer, 16 Abb. [N. S.], 124; Valleau v. Valleau, 6 Paige, 209.).

It was provided in section 36 of the Revised Statutes (see vol. 3 [5th ed.], 233) that an application to annul such a second marriage as the one claimed by plaintiff might be brought in “ the lifetime of the other” by either of the parties to the second marriage, “ or upon the application of such former husband or wife.” Then follows section 37, which provides that “ when it shall appear and be so decreed that such subsequent marriage was contracted in good faith, * * * the issue of such marriage, born or begotten before its nullity shall be declared, shall be entitled to succeed in the same manner as legitimate children to the real and personal estate of the parent who at the time of the marriage was competent to contract ; and the issue so entitled shall be specified in the sentence of nulity.”];

"We see nothing in that section which aids the position of the defendants, nor in the ninth section of the statute excepting certain persons from the operation of the statute as to bigamy, to lead us to give (3 R. S. [7th ed.], 2510) a different construction from the one we have intimated already.

For the error we have pointed out in the course of the trial at the circuit, we are of the opinion there should be a reversal of the judgment entered upon the verdict directed.

Smith, P. J., and Barker, J., concurred.

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


author: Barker, J.:

text:
    FREDERICA BEILFUS, as Administratrix, etc., of ALBERT BEILFUS, Deceased, Plaintiff, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILWAY COMPANY, Defendant.

      Master and servant — when a superintendent is a fellow-servant within the rule that a master is not liable to a servantfor the negligence of his fellow-sm'va/nt.

    One of the defendant’s coal cars having been derailed at its yards in Buffalo, defendant’s division superintendent directed the person in charge of the car shops and yards to send a wrecking train with the requisite machinery and seven men, with a man in charge, to replace the car. In pursuance of this order a wrecking train was sent under the charge of one Smith, who was employed by the defendant to superintend the removal of wrecks, under the orders of the person in charge of the shops and yards. While the car was being replaced the plaintiff’s intestate was killed by the upsetting of the car, which was caused by an improper and negligent order given by Smith.

      Held, that Smith was a fellow-servant of the deceased and that the defendant was not responsible for his negligence.
    Motion by the plaintiff for a new trial on exceptions ordered to be heard in the first instance at the General Term after a nonsuit directed at the circuit.
    The plaintiff’s intestate, her husband, was hilled at Buffalo while in the employ of the defendant as one of its servants. A coal car used by the defendant was derailed, and it was while attempting to replace it that the deceased was injured.
    Mr. Taylor was the defendant’s general superintendent upon this division of the road. Milton Wilder had charge of the car shops and yards in the city of Buffalo, and one Homer B. Smith was at this time in the employ of the defendant engaged in superintending the removal of wrecks, receiving his orders from Mr. Wilder.
    The superintendent, Mr. Taylor, being informed that the coal car was off the trestle sent a telegraphic dispatch to Mr. Wilder informing him of the fact, and that it would require a wrecking train to replace the car, and directed him to have it done on Sunday, and to prepare a derrick and tool car with seven men, with a man in charge, and to be at work at eight o’clock Sunday morning.
    Mr. Wilder communicated this order to Smith and directed him to see to its execution. The laborers who usually assisted in such service were in the employ of the defendant in, various kinds of labor, and from those it was customary, and Smith did On this occasion, select the seven men required. These men, with proper machinery and Smith as superintendent or boss, went to the trestle and commenced operations. The derrick used in lifting was placed upon a-platform car. The coal car was hitched to, raised and brought up by the side of the trestle, and an effort was being made to swing it on the track.
    The car on which the derrick was stationed had been fastened to the trestle on the opposite side by the use of a clasp to prevent its being thrown off while the coal car was being lifted up. While the coal car was suspended an order was given, and it is claimed by the plaintiff that it came from Smith, to remove the clasp. The deceased was at that time standing on the car, and some of the men suggested in the hearing of Smith and the deceased that if the clasp was removed the car would tumble off the trestle. The clasp was-knocked off and the car was immediately thrown off the trestle and Beilfus killed.

      A. G. Rice, for the plaintiff.

      E. G. Sprague, for the defendant.
   Barker, J.:

It must be conceded that the removal of the clasp which caused' the derrick to leave the trestle was a careless and negligent act. The evidence goes to prove that view of the case.

We shall assume, although the evidence leaves the question in dispute, that it was done by the order and command of Smith. If Smith, in so ordering that to be done, represented the company and stood in its place and stead, the defendant is liable to the plaintiff for the damages which the widow and next of kin have sustained by reason of the death of the intestate if he himself was blameless. If, however, in assisting in removing the wreck and directing the actions of the men he was a fellow-servant' of the deceased, the company is not liable. The plaintiff insists that Smith sustained the former relation, while tlie defendant maintains that it was the latter position which he occupied.

In disposing of this contention we should have in mind some ■of the fundamental principles of law which attend the relation of master and servant upon which the master’s obligation to pay his servant damages for the injuries he may receive while in his service depend. The servant assumes all the risks of injury incident to, and occurring in the course of his employment, except such as are the result of the act of the master himself, or a breach by the master of some term, either express or implied, of the contract of service, or of the duty of the master to his servant, viz., to employ competent fellow-servants, safe and necessary machinery, etc. But for the mere negligence of one employe the master is not responsible to another engaged in the same general service. The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the injury. (Crispin v. Babbitt, 81 N. Y., 516.) The master does not undertake, unless it is so specifically agreed, that he will in person attend his servants and advise and superintend the business and labor to be performed, nor that he will send another to stand in his place so that whatever such person may do or order will be, as between himself and his servant, his own act.

In this ease it is not claimed but that all necessary machinery, tools and appliances were supplied, and that they were in good order and the men all sufficiently skilled and trained, and the number sufficient for the work in hand. The defendant, therefore, fully performed its part of the contract with the deceased, and no duty which it owed him was unperformed. Mr. Smith did in a sense represent the defendant, as did all the other persons engaged on that occasion, in attempting to replace the car on the track. It was deputed to Mr. Smith as a special duty by his superior officer to select the crew of men who were to accompany him to the place of operations and to prepare and select the tools and machinery which were necessary for that service. Before anything was done towards removing the wreck, the tools and machinery as well as the men were present. In this respect Smith did represent the defendant and acted for it in the performance of its part of the contract with the deceased. After that, and at the time the deceased was injured, he was engaged as an employe and was a fellow-servant with all the men engaged with him. It was not necessary that the defendant should be represented by an agent or representative at that place while the task was being performed. The kind of work then being done was a matter of frequent occurrence in running and operating the road, and the mode and manner of doing it did not affect third persons in any degree.

In most of the operations connected with running a railroad it is necessary that there should be the combined service of two or more men, and that one of the number should act in the capacity of giving orders and directions. And it would be altogether unreasonable to hold as a rule of law that the person thus selected stands towards the others as the representative of the company and that his acts be regarded as the special directions and orders of the company.

In Crispin v. Babbitt (supra) the plaintiff sued the defendant for injuries which he had sustained while in his employ. The defendant was the owner of iron-works situated in ’Whitesboro, Oneida county, and lived in the city of New York, visiting the works once a month and remaining for a day or two at a time. One John L. Babbitt was the general superintendent and manager, and was styled the business and financial agent. The plaintiff was a laborer at . the works, and it became necessary to put the pumps, which were worked by an engine, in operation.

While the plaintiff with other workmen was engaged in lifting the flywheel of the engine off its center, Babbitt, the general superintendent, carelessly let the steam on and started up the wheel suddenly, throwing the plaintiff on to the machinery and injuring him, and of this injury he complained. It .was held that Babbitt was the fellow-servant of the plaintiff, although an employe of a higher grade; that the defendant had discharged all the duties which he owed the plaintiff, having supplied the works with safe and sufficient machinery and employed competent fellow-servants to labor with the plaintiff. (Hofnagle v. The N. Y. C. and H. R. R. R. Co., 55 N. Y., 608; Albro v. Agawam Canal Co., 6 Cush., 75.) The cases of Corcoran v. Holbrook (59 N. Y., 517), and Flike v. The Boston and Albany Railroad Company (53 id., 549), have no just application in this instance, for those cases were determined against the master upon the ground that he had failed to supply a safe place for the servant and safe and sufficient machinery.

Judgment ordered for the defendant, with costs.

Present — Smith, P. J., Hardin and Barker, JJ.

New trial denied and judgment for defendant on the verdict.


text:
    JENNIE C. BELL, as Administratrix, etc., of CHARLES BELL, Deceased, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Street — duty of a railroad company not unnecessarily to impair its usefulness — 1850, chap. 140, sec. 28 — when questions of negligence should he left to the jury.

    The defendant laid its tracks and operated its road through Washington street,' between Market and Mulberry streets, in the city of Syracuse. The rails projected about four and a-half inches above the paved surface of the street, and the spaces between them were not planked or filled in except at the places where Washington street was crossed by the other streets. The north rail was about ten feet from the north curb of Washington street. The plaintiffs intestate turned into Washington street from Market street, driving eastwardly towards Mulberry street, to deliver ice at a hotel in the middle of the block. Both sides of the street were filled with buildings used for business purposes. While delivering the ice a train came from the east. When the engine came near to the horses they became frightened and the wagon was backed against the train whereby the deceased was killed.
    In this action brought to recover damages for his death the plaintiff was nonsuited.

      Held, error.
    That the defendant having failed to restore the street to such a state as not unnecessarily to impair its usefulness, as required by the statutes authorizing it to use the street, it was for the jury to say whether or not its failure so to do did not occasion the accident.

      That the failure of the defendant to comply with the terms of a city ordinance, prohibiting railroad companies from blowing oh: steam from their locomotives so as to annoy teams or foot passengers, should also have been submitted to the jury as tending to establish negligence.
    That the question as to whether or not the plaintiff was guilty of contributory negligence in failing to jump from the wagon upon the approach of the train, should, under the circumstances of the case, have also been submitted to the jury.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit, and from an order made at a Special Term denying a motion for a new trial.

      JB. D. Grosley, for the appellant.

      Brown & Garfield, for the respondent.
   Barker, J.:

Charles Bell, the plaintiff’s husband, was killed in the city of Syracuse in May, 1881, in consequence of a collision with a train of the defendant’s cars while the same was moving through Washington street.

This action is brought under the statute, the plaintiff claiming that the accident was caused by reason of the negligence of the defendant’s engineer in charge of the engine.

The facts and circumstances upon which the question of the defendant’s negligence is to be determined are in no real dispute, and are substantially as follows: Washington street, at tjie place where the collision occurred, is in a busy part of the city and is sixty-six feet wide between the face of the buildings located thereon and is devoted to trade and traffic. The defendant maintains two tracks along this street for the distance of more than a mile, and the north rail o.f the north track is ten feet from the cuib-stone, and the sidewalk on this side of the street is six feet in width.

Market street and Mulberry street cross Washington street at right angles and are 340 feet apart. At these crossings the tracks and the space between the tracks aré planked over so as to make a safe and easy crossing. The portion of the tracks between these two streets is not planked, and the rails are four and one-half inches above the common surface of the street. The space between the north rail and the curb-stone on the north side of Washington street, and between Market and Mulberry, is paved so as to make a smooth and even surface for wagons and carriages. The entire block on the north side of Washington street, between Market and Mulberry, is composed of business places, Miers’ hotel being near the center.

The deceased was engaged by one Rouse as the driver of a team attached to an ice wagon, and he a few minutes before the accident came into Washington street from Market and drove up in front of Miers’ hotel close by the curb-stone in view of delivering ice at that hotel. While he was there in his seat in charge of the team and another person engaged in delivering ice the train came along from the east, and when the engine came near to the horses they became frightened and unmanageable and the wagon was backed against the train, and the deceased receiving injuries from which he immediately died.

It was lawful for the defendant to lay down and maintain its tracks in Washington street and move its trains thereon. This privilege was conferred by statute. But the same statute imposed upon it the obligation of restoring the street to its former state, or to such condition of repair as not unnecessarily to impair its usefulness. Upon the facts there is reason for saying that this section of the street was out of repair, and that the defendant was guilty of negligence and the deceased came to his death in consequence of the condition of the street at the time and place of the accident.

The provisions of the general railroad act of 1850 are as follows: That every corporation formed under the same shall have power to construct its road across, along or upon any street, highway, plank-road or turnpike within this State which the route of the road shall intersect or touch. But the company shall restore the street or highway thus intersected to its former state, or to such state as not unnecessarily to have impaired its usefulness. (The Railroad Act, 1850, chap. 140, § 28.)

This statutory obligation is imperative and absolute, and until this requirement of the law is complied with the railroad company is guilty of a breach of duty which it owes to the public, and is liable to injured persons for all damages resulting from its negligence in this respect.

The nature and extent of the privilege conferred by this statute, and the duty of the railroad company to repair and restore the road, have been the subject of frequent adjudication, and its obligations thereunder are no longer a question of much doubt or uncertainty.

The Auburn and Syracuse Railroad Company was constructed under an act of the legislature which gave it the power to cross and run along streets and highways, but imposed the duty upon the company to restore the same to its former state, or in a sufficient manner not to impair its usefulness. Fletcher v. The Auburn and Syracuse Railroad (25 Wend., 462) was based upon the provisions of this act, and the court decided that it was the duty of the defendants to restore the road so as not to impair its usefulness, and that it was made one of the conditions of the enjoyment to make such restoration, and if it omitted to do so the company was liable for all damages which might accrue to the public.

As to the duty of a railroad company to restore the road as, required by statute, and that it is negligence on the part of the defendant to omit this obligation, Wasmer v. Delaware, Lackawanna and Western Railroad Company (80 N. Y., 212) is a direct and controlling authority.

In that case the defendant’s railroad track was laid through the center óf a stteet in the city of Utica, the top of the rails being about four and one-half inches above the surface of the street. There was no planking or filling between the rails to facilitate the passage of vehicles across the track. The person injured was traveling upon that street and left his horse unfastened by the side of the tracks, he being engaged in peddling kindling wood in the neighborhood, and while a few steps away from his wagon a train came in sight and frightened his horse and it turned and started across the tracks and drew the wagon in part upon the rails. While the horse was upon the tracks the owner ran to the horse and seized some part of the harness, and while engaged in attempting to manage his horse and lead him off the tracks, he was struck by the engine and killed. It was held that the fact the rails were left so much above the common surface of the street that the company was guilty of a breach of duty which it owed to the public, and in commenting upon the statute Earl, J., remarked: that by the terms of the general railroad act “ authority was given to build railroads in streets, but the streets were to be restored to their former state, or to such state as not unnecessarily to impair their usefulness. Schuyler street was not restored, to its former state, and it was at least a question of fact for the jury whether its usefulness was not unnecessarily impaired. It is very probable that this accident would not have occurred if there had - been some filling inside of the rails so that the wheels of the wagon could readily have passed over them.”

The case of The People ex rel. Green v. The Dutchess and Columbia Railroad Company (58 N. Y., 153) related to the duty and obligation of railroad companies to restore highways intersected by them to their former usefulness. It was a proceeding by mamdamus to compel the defendant, a railroad company, to restore the highway to its former condition of usefulness which it was alleged by the relator it had omitted to do.

It was held that this obligation on the part of the company interested the public, and'it could be compelled by the courts to perform its duty in that respect and a peremptory writ of mamdamus would be ordered for that purpose. That while a discretion was given to the railroad company to determine the mode and manner of restoration, yet there must be in some form a restoration in fact so as not unnecessarily to impair the usefulness of the highway, and that the court will interfere and exact a full performance in this respect.

In Worster v. The Forty-second Street Railroad Company (50 N. Y., 203), which was an action for damages for injuries to a horse, received while crossing the defendant’s tracks, which the owner of the horse alleged to be out of repair; the court held that while the defendant had a lawful right to lay their tracks in the street where the injury occurred, that this right carried with it the obligation to lay the tracks in a proper manner and keep them in repair, and that if any injury occurred by reason of neglect in these respects the defendant was liable in damages. (See, also, Fash v. Third Ave. R. R. Co., 1 Daly, 148; Conroy v. Twenty-third Street R. R. Co., 52 How., 49; Gillett v. The Western R. R. Corporation, 8 Allen, 560.)

Streets and highways are opened and maintained at the cost of and for the convenience of the public to favor and facilitate travel and traffic. The law is vigilant to protect all persons lawfully in the highway against the obstructions and hindrances of others.

It is a maxim of the law whenever a private injury has been sustained from an unauthorized obstruction in the public thorough fare that the injured party ife entitled to compensation in damages from the wrong-doer. (1 Addison on Torts, 207.)

The omission of the defendant to plank over and fill in between the rails and tracks is one circumstance which may be pointed to, as causing the death of the deceased. The act of the defendant prevented his turning the team into the street and driving to a place of safety wfhile the train was passing.

On the approach of the train there was but one way for him to escape with the team from the predicament in which he found himself, and that was to drive forward and towards the approaching train with a view of turning into Mulberry street and leaving Washington. These facts and circumstances fairly tended to prove the defendant’s negligence.

At the time of this occurrence there was an ordinance in force in the city of Syracuse prohibiting railroad companies occupying the public streets from blowing off steam from locomotives to the annoyance of teams or foot passengers, and imposing a penalty for a violation of the same. The evidence, in our opinion, tended to prove that this ordinance was violated by the defendant on this occasion, and the escape of steam from the locomotive attached to the train had the effect to frighten the team and for that reason it became unmanageable. This ordinance did not aim to prevent the escape of steam from a locomotive engine while passing through the streets, for such a provision would be altogether unreasonable.

The purpose of the by-law was to require the engineer in charge of the engine when passing within the limits of the city to be upon the look out and not to suffer the steam to escape in such quantities and in an irregular manner which, if permitted, would have the effect to frighten horses and to alarm' persons upon the street.

In operating its road and running its trains through the thickly settled and business parts of the city a railroad company is required to exercise great care and caution It must so run its trains and use and occupy its railroad in the enjoyment of the right of way which it has in common with the ordinary traveler as not to injure others in the exercise of their right of way, provided the latter are guilty of no want of care on their part. (Webber v. N. Y. C. and H. R. R. R. Co., 58 N. Y., 459; Smedis v. Brooklyn and Rockawary Beach R. R. Co., 88 id., 20.)

A fair question was presented for the consideration of the jury, whether the discharge of steam under the circumstances was unnecessary and in violation of the ordinance; and if they should be of that opinion, then the act was one of negligence on the part of the defendant.

On the question of the negligence of the deceased we are of the opinion that it should have been submitted to the jury. If his negligence was made to depend solely on the question whether he saw the train or not in time to leap from his seat and save his life there would be but little difficulty, if any, in holding that his own carelessness contributed to his injuries and death.

As bearing on this issue, however, there are many other facts and circumstances which should be taken into consideration. He had a right to rely on an observance of the ordinance by the engineer; and also that the team were more or less accustomed to the noise and appearance of moving trains,.and that they did not become altogether unmanageable on such occasions. He owed a duty to his employer to make every reasonable effort to protect the property in his care without needlessly exposing himself to danger.

It cannot be said as a matter of law that the deceased failed to exercise ordinary care and prudence, and his action was not such as a cautious and prudent person would have adopted on a like occasion. When the circumstances under which the party acts are complicated, and the general knowledge and experience of men do not at once condemn his conduct as careless, it is plainly to be submitted to the jury. What is ordinary care in such cases, even though the facts are undisputed, is peculiarly a question of fact to be determined by the jury under proper instructions. It is the judgment and experience of the jury and not of the judge which is to be appealed to.

The judgment and order appealed from are reversed and a new trial granted, with costs to abide the event.

Present — Smith, P. J., Hardin and Barker, JJ.

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


text:
    FRANCIS X. MEYERS, Sheriff, etc., Respondent, v. JAMES A. BECKER, Appellant.

      Interlocutory a/nd final judgments — right to issue process for the wrest of the defendant — when the invalidity of the process may he set up in an action for an escape.

    In an action brought by a judgment-creditor against the debtors aid their assignee to set aside a general assignment as fraudulent, a judgment was entered on October 17, 1878, declaring the assignment to be void as to creditors, directing it to be set aside and requiring the assignee to account for the value of the property received by him and pay the same over to a receiver to be appointed, who was directed to apply the moneys so to be received as was in said judgment directed. Thereafter and on January 31, 1879, an order was made confirming the report of a referee stating the account of the assignee, and requiring the assignee to pay over certain sums of money specified in the order to the receiver and other persons therein designated. On March fourteen an order purporting to be made upon the motion of the receiver was entered. It did not recite that notice had been given to the assignee, but stated that after demand made he had neglected and refused to pay the moneys mentioned in the order. It directed that a precept issue to commit him to the county jail until he paid the amounts named.

      Reid, that under the circumstances of the case the court had no power to issue process against the assignee’s person until an execution had first been issued against his property, and that the invalidity of the process might be set up, by one who signed the bail bond with the assignee, in an action brought upon the bond for„the latter’s escape.
    That the provisions of section 4 of 2d Revised Statutes, 535, to the effect that “when any rule or order of the court shall have been made for the payment of costs or any other sum of money, and proof by affidavit shall be made'of the personal demand of such sum of money and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison,” apply only to orders strictly interlocutory.
    That the order of January 13, 1879, was not an interlocutory order.
    Appeal from a judgment in favor of the plaintiff, entered upon a decision made at Special Term in Onondaga county, in an action upon a bail bond executed by the defendant as bail to secure the jail liberties to one Alpheus 0. Beckwith, a person imprisoned under a precept issued in pursuance of a special order of this court for noncompliance with'an order to pay over money.
    Prior to the 3d day of May, 1878, Pierce & Haggerty made an assignment of their property to one Alpheus C. Beckwith, as assignee, in trust for the benefit of their creditors.
    George T. Hawley and others, judgment-creditors of the said ■Pierce és Haggerty, in May, 1878, commenced an action in this court against Pierce & Haggerty, and Beckwith, the assignee, to have the assignment declared void as against creditors and compel Beckwith, as assignee, to account for the property and moneys in his hands, and to have the same applied in payment of his judgment. The defendants appeared by an attorney and sought to uphold the assignment as valid. •
    The action was referred to a referee to hear, try and determine. Upon his report an interlocutory judgment was entered declaring the assignment void as to creditors, and that the same be set aside as fraudulent; that Beckwith, the assignee, should account for the value of the property which came to his hands, and finding the value to be $3,000 that he be enjoined from selling and disposing of any of said property received by him under the assignment, or paying out any of the proceeds derived from a sale of the property, and that a receiver be appointed of the effects of the said Pierce & Haggerty, which should be in their hands or the hands of said Beckwith, and that from the proceeds of such property and effects he was directed to pay the costs and disbursements of the action, which were taxed and adjusted at $107 to pay the plaintiffs their judgment of $178.35, and interest thereon from January 5, 1878, and bring the balance of the proceeds into court subject to its further order and direction.
    This judgment was entered and docketed in Onondaga county clerk’s office, the place of trial, October 17, 1878. Thereafter and on the 29th day of October, 1878, by an order made at Special Term a receiver was appointed, as provided for in the interlocutory judgment, and a referee was appointed to take and state the account of the said Beckwith, and to determine what costs, expenses, charges and disbursements, if any, were properly allowable to him, and to be deducted from the sum which he was by the decree to account for and pay over to the receiver These orders were duly entered in Onondaga county clerk’s office. The referee made a report dated January 20, 1879, which was filed but is not printed in the case.
    By an order of the court made at Special Term on the 31st day of January, 1879, on motion of the plaintiff’s attorney, the referee’s report was confirmed and the defendant’s attorney appeared and was heard upon the motion.
    It was for non-compliance with the terms of this order that the precept was issued to arrest and imprison Beckwith. The decretal part of the order is here copied m hac verba: “ That the report of O. D. Prescott, Esq., the referee herein, bearing date January 17, 1879, be and the same is hereby in all respects confirmed; also ordered, that the defendant Alpheus C. Beckwith, as assignee, pay over forthwith to John E. Brandigee, Esq., the receiver herein duly appointed and qualified, the sum of three thousand dollars, less the sum of three hundred and fifty dollars, and the further sum of forty dollars, which by the report of said referee said defendant Beckwith as such assignee was allowed from the three thousand dollars which he was directed to pay over to said John E. Brandigee as such receiver; that said Beckwith pay to Messrs. Risley & Stoddard, attorneys, the above named sum of three hundred and fifty dollars which was allowed to him by said referee for the purpose of paying and discharging the indebtedness of said Risley & Stoddard, against him as such assignee, for defending him as assignee in the actions brought against him; and that he also pay William A. Matteson, Esq., the above sum of forty dollars which was allowed to him by said referee for the purpose of paying and discharging the indebtedness of said Matteson, against him as such assignee, for conducting the defense in this action; that the amount which the defendant Alpheus C. Beckwith is hereby decreed to pay over forthwith to said John E. Brandigee, receiver therein, is the sum of two thousand six hundred and ten dollars. Further ordered, that the said John E. Brandigee, as such receiver, pay out of the funds so delivered to and held by him, besides and in addition to the amounts heretofore allowed and ordered, pay out of said fund the fees of the referee for said last mentioned reference fixed at ten dollars, and the further sum of ten dollars as and for the costs of this motion to the said plaintiffs herein.”
    The form of this order was approved by the judge who presided, and certified by the clerk and directed to be entered in the Onondaga county clerk’s office, and the same was received in the latter clerk’s office and entered on the first day of February. 1879.

      On the 14th day of March, 1879, an order was entered at Special Term purporting to be upon the motion of the receiver, and without reciting that any notice was given to Beckwith, but stating that a demand had been made of him to pay the moneys mentioned in the last named order, and that he had neglected and refused to do the same, and directing that a precept issue to commit him to the county jail until he paid the sum of $2,610 as required by such order. The precept was issued to the sheriff of Oneida county.
    Beckwith was arrested by the sheriff, and he, with the defendant herein, gave the bail bond sued upon.

      JRisley <& Stoddard, for the appellant.

      G. D. Adams, for the respondent.
   Barker, J.:

The judgment entered upon the report of the referee was not final, although it did determine all the most disputed questions at issue between the parties to the record.

The real purpose of the suit was to set aside the assignment made by the judgment debtors, and to reach the property and assets in the hands of their assignee, and to appropriate the same to the payment of the judgment which the plaintiff had procured against the assignors.

The value of the assets which came to the hands of the assignee was fixed and determined by the interlocutory judgment, and the only questions which remained to be investigated and determined were the allowances which 'he was entitled to have deducted from the gross sum which he had received.

The order entered upon the report of the referee, to whom it was referred, to take and state the account of the assignee, did dispose of all the remaining questions necessary to be determined and inserted in the final judgment.

After the entry of this order nothing remained to be litigated in the action. Upon the payment of the sums therein directed, nothing more could be demanded of Beckwith. Upon the entry of this order in Onondaga county clerk’s office, where the interlocutory judgment was filed', as between the parties to the record, it was, in substance and effect, a final judgment, although there was not an enrollment as required by tbe course and practice of tbe court. Without any further order from the court, the clerk, at the request of the plaintiff’s attorney, or without it, could have attached to the interlocutory judgment all the subsequent orders, which would have been an enrollment of the decree, such as is usually and customarily made in such cases.

The practice pursued in this case seems to be in substantial compliance with the provisions of sections 1212 to 1223, inclusive, of the Code of Civil Procedure. The provisions of these sections are similar in effect to the rules and practice of the old Court of Chancery. Mr. Barbour, in his'work on Practice, says: “A decree does not, strictly speaking, become a record of the court until it has been enrolled ; and although the court itself, after it has been duly settled and entered, treats it as a foundation for ulterior proceedings, it is not considered of a sufficiently permanent nature to entitle it, in other courts, to the same attention that is paid by one court of record to the records of other courts of the same nature.” (1 Barb. Oh. Pr. [2d. ed.], 341.)

Since the adoption of the Code, final judgments in suits in equity may be docketed and enforced in the same manner as actions at law, and many of the provisions of the Revised Statutes, relating to the enforcement of decrees in equity, are superseded and have become inoperative.

In Geery v. Geery (63 N. Y., 252), it was held that where money judgments are rendered in equitable actions, such as actions for the foreclosure of liens, for the partition of real estate, for specific performance, and for aoaoimtmg, such judgments are required to be entered, docketed and enforced in all respects like judgments rendered in actions at law. In the same case it was further held that whei’e the judgment required money to be paid to a receiver, who was not a party to the suit, the court could order the judgment for the sum directed to be paid, to be docketed in his favor and enforced by execution.

In Miller v. Miller (7 Hun, 208) it was also held that all judgments for the payment of moneys in actions of an equitable nature could be enforced by execution.

There is no doubt but what Beckwith may be imprisoned for nonpayment of the moneys which he was directed to pay over to the receiver, in view of the nature and character of the debt established against him, but, by the provisions of the Code, an execution against'his property must, in the first instance, be issued and returned unsatisfied.

The provisions of the Revised Statutes relating to the enforcement of decrees in equity, being superseded by the Code, are not a justification for issuing a body execution in the first instance. Under these statutes the court could enforce performance of any decree by execution against the body of the party against whom the decree was entered, or by execution against his goods and chattels. (2 R. S., 183, § 10é.) The party entitled to the process could, at his option, in the first instance, issue an execution against the body of the party directed to perform the decree. The Matter of Watson v. Nelson (69 N. Y., 536) is not an authority for holding that these provisions of the Revised Statutes are now in force and can be resorted to for the enforcement of judgments in equity actions. That ease pertained to the mode and manner of enforcing decrees for the payment of moneys entered in a Surrogate’s court, and it was held that that court had the same powers as formerly existed in the Court of Chancery, and these provisions of the statute were in force so far as to compel a resort to the same, to enforce the orders and decrees of a Surrogate’s Court.

If, however, we are mistaken in the views which we have presented, that the order confirming the referee’s report and fixing the sum which Beckwith was required to pay to the receiver was not in effect a final judgment, so far as the parties to that suit were concerned, we are still of the opinion that the precept which was issued thereon was wholly unauthorized, for the reason that the order was not interlocutory in any proper sense of the term, but was a determination of the court, in the form of a decretal order, upon which interested parties could take stejis for the entry of final judgment, and was intended for that purpose and none other.

The chief object and purpose of the action was to reach the moneys in the hands of the assignee derived from the assignment; and this order determines the amount and directed him to pay the same over to an officer of the court. All the other issues and questions had been determined against the parties to the assignment and were embraced in tbe interlocutory decree, and this was the sole and single inquiry remaining for determination.

Upon this order and the interlocutory judgment final judgment could have been entered without any .further directions from the court. Interlocutory orders are made to secure some end and purpose necessary and essential to the progress of the suit, a,nd generally collateral to the issues'formed by the pleadings and not connected with the final judgment. Every direction of a court made in an action is an order, unless it is contained in a judgment. (Code of Civil Pro., § 767.) This corresponds in all respects with section 100 of the preceding Code. The distinction between an order and a judgment seems to be this, that an order is a decision of a motion and a judgment is a decision of a trial. Where an order is entered sustaining or overruling a demurrer to an, entire pleading, without any leave to amend, it is substantially a judgment for the reason that the successful party is entitled to judgment thereon, and it is a final determination of the rights of the parties. Hoffman v. Barry, 2 Hun, 52.) These views are in harmony with section 1200 of the Code of Civil Procedure defining a judgment to be either interlocutory- or a final determination of the. rights of the parties.

The plaintiff relies upon the provisions of section 4, chapter 8, part 3, title 13 of the Revised Statutes (2 R. S., 535), as authority for issuing the precept directing the arrest and imprisonment of Beckwith. This section reads as follows : “ When any rule or order of the court shall have been made for the payment of costs or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison until such sum and the costs and expenses of the proceeding be paid.” •

It is conceded that this section was in force at the time the precept in this case was issued, and it was so held by this court in Strobridge v. Strobridge (21 Hun, 288), in all instances where the provisions of the section are applicable. This section of the statute only applies to the enforcement of' orders which are strictly interlocutory. And such is the tenor of all the authorities.

We have examined all the cases to which the learned counsel for the plaintiff refers, and we find they pertain to interlocutory orders only, and do not involve questions embraced within the issues, and determined on the trial and embraced in a final decree. (Van Wezel v. Van Wezel, 3 Paige, 38; The People ex rel. Hawley v. Bennett, 4 id., 282; The People ex rel. Backus v. Spalding, 10 id., 287; Strobridge v. Strobridge, 21 Hun, 288; In the Matter of Watson, 69 N. Y., 536.)

In the latter case, referring to the same fourth section, the court say “ that provision is there made for the enforcement of interlocutory orders for the payment of money.”

I have been unable to find any case where the courts have directed or upheld a precept under the provisions of the fourth section — where the order was not purely interlocutory in its nature and character, and intended to be such.

The process upon which Beckwith was arrested and committed was unauthorized and void.

For an escape the plaintiffs in the other suit could not have maintained an action against the sheriff, for he could have pleaded the want of authority in issuing the precept upon which he arrested Beckwith, as a full and complete defense.

Judgment is reversed and judgment ordered for defendant, with costs of trial and of this appeal.

Present — Smith, P. J., Hardin and Barker, JJ.

Judgment reversed and judgment ordered for defendant, with costs.