author: Pratt, J.

text:
    CLARA PHILIPS, Resp’t, v. THE TOWN OF FISHKILL, App’lt.
    Municipal corporation—Liability for defective sidewalk—Contributory NEGLIGENCE.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      8. K. Phillips, for resp’t; Wolcott & Kent, for app’lt.
   Pratt, J.

This is an action to recover for injuries alleged to have been sustained by the plaintiff, by reason of the negligent act and omission of the defendant, in leaving an open ditch or drain contiguous to the sidewalk on a public street in the village of Matteawan, into which the plaintiff fell and sustained injuries. It appeared in evidence that the hole was about four feet long, two. feet wide and two feet nine inches deep, that it formed the entrance for the water from the gutters on the west side of the highway, and also the water which ran through the drain under the road from the east side into the drain running from the sidewalk; that the hole was without guards or covering of.' any sort, and had existed in this condition for more than a year prior to the-accident; that the night was dark and stormy, and that the plaintiff received, the injuries complained of, while she was returning from church along the-said sidewalk.

No question seems to have been made upon the trial as to the liability of the: town, or as to the duty of the town in the premises, and it is clear from the length of time that this defect had existed, it must be presumed that it could, have been discovered by the exercise of due care upon the part of the authoiities of the town.

It was a question of fact for the jury to determine whether or not this was. a dangerous hole. Goodfellow v. The Mayor, 100 N. Y., 15; and Bullock v. Same, 99 id., 654. It also appeared in evidence that the plaintiff was well acquainted with the locality and knew of the existence of the hole.

The principal question in the case is whether or not the plaintiff made out her affirmative allegation that when the injuries were received she was in the exercise of due care. Although the plaintiff knew of the excavation she might well have forgotten or miscalculated its exact location in the darkness and storm of the night in question, without being chargeable with negligence. In fact she may have forgotten its existence for the moment.

This question was properly submitted to the jury,- and the finding ought not to be disturbed. Weed v. Village of Ballston, 76 N. Y., 829; Plank v. N. Y. C. and H. R. R. Co., 60 id., 607; Thomas v. Mayor, 28 Hun, 110.

The damages are not excessive. Judgment affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    ANN BARNES et al., Resp’ts, v. ARTHUR O’LEARY, App’lt.
    Negligence—Damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      N. J. Wyeth, for resp’ts; A. Prentice, for app’lt.
   Pratt, J.

The law of the case was correctly laid down at circuit, and under the charge the jury must have found that the defendant carried on his work negligently. If that were so, the jury took a moderate and conservative view of the damages. Most of the witnesses estimated the damages at upwards of $1,500, while the verdict is for $300.

We cannot say there was no evidence of negligence on the part of defendant; nor that the verdict is so much against the weight of evidence as to require the interference of the court. While the jury might well have found in favor of defendant on the question of negligence, it is not within the province of the court to interfere with the verdict

. No exceptions require discussion, and the judgment should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    HUGH WEBSTER, App’lt, v. HUGO HIRSCH, Resp’t.
    Purchase from unauthorized person—Title to goods sold does not pass.
    Appeal from a judgment entered upon a verdict in favor of defendant.

      J. W. Ridgway, for app’lt; A, Barrett, for resp’t.
   Barnard, P. J.

Upon the undisputed facts the plaintiff never acquired a title to the goods which are the subject of this action. They originally belonged to the defendant. One, John Faye, had been in the habit of obtaining orders for goods, and the defendant had been in the habit of delivering the goods to Faye to be delivered under these orders. The orders were for Hirsch, and the contract was solely with Hirsch. Faye had never been empowered to sell the goods received from Hirsch, but only to deliver them according to the direction of Hirsch, and in such cases only when the defendant had ratified the credit of the purchasers and had accepted the order. Before Hirsch could be deprived of his goods he must have been bound in some way by Faye’s acts in selling the goods delivered to him for a specific purpose. Faye had no direct authority, and none can be inferred from the mere possession of the goods. The purchaser must take the risk of a purchaser from an unauthorized person. The goods were not delivered to Faye with an intent to transfer a title which has been obtained by fraud. In such cases the bona fide purchaser from a fraudulent vendor will get a good title. Faye had no title, and was to have none. He did, by false representation, obtain possession of the goods, but only rs goods of defendant, and the title could not be divested until the delivery was made to the person who ostensibly bought them.

The decision at the circuit was, therefore, proper, and the judgment should be affirmed, with costs,

Dykman, J., concurs; Pratt, J., not sitting.


text:
    IN THE MATTER OF THE PETITION OF GEORGE BRADISH.
    Assessments—Summary review.
   Barnard, P. J.

The statute in respect to the summary review of assessments by this court, is new, and its construction is of great practical importance to persons claiming the protection of this act, as well as to the assessors. The question is not free from doubt, and, therefore, the leave to go to the court of appeals should be granted.

Motion granted, without costs.


text:
    WILLIAM O. JACKSON, Resp’t, v. ALBERT DAGGETT, Sheriff etc., App’lt.
    Sheriff—Right to refuse to sell goods seized on levy.

      E. P. Wilder, for resp’t; M. Oatlin, for app’lt.
   Barnard, P. J.

There is no importance to be attached to the previous history of this case.

The first appeal did not decide, or attempt to decide, anything beyond the point that a tort like the one described in the complaint was assignable. The case was then tried, and this appeal brings up that trial only. Upon this trial it did appear that the defendants had parted with their title before the levy, and this was an assumed fact in the judge's charge.

The recovery was solely had on the fact that when a sheriff levies on property and there is a bond of indemnity given by the plaintiff to the sheriff, he is bound to sell at all hazards. The general term decision was based upon the right of a sheriff to refuse to sell, if he is willing to prove affirmatively that the judgment debtors had no title to sell.

Motion denied, with ten dollars costs.

Pratt, J., concurs.


text:
    J. A. McGILIVRAY, App’lt, v. THE STANDARD OIL COMPANY, Resp’t,
    Practice—Orders—Right op court to impose conditions in granting-
    Appeal from an order opening plaintiff’s default, on condition that he file security for costs.
   Pratt, J.

The plaintiff was in default in serving his case, and, as a condition of opening such default and permitting him to serve his case, he was required to give security for costs.

The alleged agreement upon the part of the defendant’s counsel to permit plaintiff to serve his case after the expiration of the time, was not in writing, and is denied, and the court at special term has held that no such agreement was made. It was competent for the court in granting an order that was asked for as a favor, to impose a reasonable condition, and we cannot say that requiring the plaintiff to give security was unreasonable.

Order affirmed, with ten dollars costs.


text:
    IN THE MATTER OF THE APPLICATION OF THE STATEN ISLAND RAPID TRANSIT R. R. TO ACQUIRE LANDS OF COCHRAN.
    Appraisal- of Commissioners—Award for damages when report will NOT BE SET ASIDE.

      John W. Gochrane, for app’lts; Stewart <6 Boardman, for resp’t.
   Barnard, P. J.

The papers show that the appellant Cochran is the owner of a small piece of upland in the county of Richmond, in the Kill Von Kull. The commission of the land office in 1869 granted the lands under water front of the same. There was erected on this land under water on piles a dock.

This dock was constructed a long time ago, and has gone to a complete wreck. The railroad company cross this dock about one hundred and sixty feet from the shore and takes a strip of thirty-eight feet, nearly at right angles to the dock. There is left about eighty feet of lands under water outside of the railroad. The dock substantially covers the whole front of the lands under water granted by the state. The reservation to the land owner in the commissioners’ report seems to be considerable, the same being to lay “ sewers, drains, gas and water pipes, upon, under and through the strips taken by the railroad. Also a crossing at all times at a place to be selected by the land owner, and the right to construct bridges, warehouses and other structures over the railroad-of such size and character, and for such uses, as the land owner chooses.” There is the usual discrepency as to value, ranging at such sums as would justify a report for a few hundred, or for some thousands of dollars. The large estimate is to be taken with the reasons given by the witnesses in support thereof.

It is manifest that the land outside of the railroad is not valueless unless for the reason which permitted the dock to rot down from disuse. Given a business justifying a dock it could be carried on over the railroad, '

This large damage in other cases is justified by the assumption of the witness. as to the bottom of the land under the water of which there is no satisfactory evidence.

When the view of the commissioners fills so large a part in harmonizing the evidence of the witnesses by actual knowledge of the surrounding facts, the present case does not call for the interferance of an appellate court.

The right is fully justified by the evidence itself. The best judgment to be derived from its consideration seems to point to the sum arrived at by the commission.

Order confirming report affirmed with costs and disbursements Pitatt, J., concurs. _


text:
    WILLIAM A. OWEN, Resp’t, v. ANTHONY KING, App’lt.
    Practice—When amendment allowed on trial.
    Appeal from a judgment entered on a verdicct directed in favor of the plaintiff.

      D. F. & H. Qedney, for resp’t; Hams <6 Corwin, for app’lt
   Pratt, J.

The answer avers a contract wherein plaintiff agreed to sell to defendant for one year from April 1, 1885; all the milk produced by liis, plaintiff’s dairy; and that on the 12th of July, 1885, plaintiff refused, and has every since refused to perform said agreement, and avers special damages.

In reply defendant denies none of these allegations except the amount of damages.

No proof of the contract nor of the breach was necessary upon the trial.

It only remained for defendant to prove the damages sustained by the breach. This he did, and as the pleadings stood, should have had judgment ordered in his favor upon the counterclaim for the amount of damages proved, extinguishing the plaintiff’s claim, and for $1.34 and costs.

If the court considered that justice would thereby be promoted, a jury might have been withdrawn with liberty to plaintiff to move at special' term for leave to serve a new reply pleading the statute.

As such an amendment would introduce a new defense to defendant’s counterclaim, it could not properly be made upon the trial, and would not ordinarily be granted at special term, except upon payment of the costs tho‘ have accrued since the present reply was served.

It follows that the direction of a verdict for the plaintiff was erroneous.

Judgment reversed. New trial ordered, costs to abide event.

Dykman and Bartlett, JJ., concur.


text:
    MICHAEL S. SHANLEY, App’lt, v. THE VILLAGE OF PORT CHESTER, Resp’t.
    Sewerage—What sufficient evidence of carelessness to relieve TOWN AUTHORITIES'OF LIABILITY.
    Appeal from an order setting aside a verdict in favor of plaintiff in an action to recover for the ruin of plaintiff’s well by reason of the defendant not keeping a ditch or sewer in a certain street in repair.

      Charles H. Saxon, for app’lt; Daniel Haight, for resp’t.
   Pratt, J.

The uncemented drain into which plaintiff and his tenants, seven families in all, for years threw suds and waste, was but fifteen feet from the well.

Testimony was given, though scarcely needed, to show that the refuse would immediately sink into the ground, that it would not run ten feet.

Obviously it was only a question of time when the ground would become so saturated with the accumulated filth as to ruin the well.

Upon the testimony there is little, if any, doubt that the well was ruined by the waste from the occupants of plaintiff’s property.

The county judge correctly set aside the verdict.

Order affirmed with costs.

Barnard, P. J., and Dykman. J.. concur


author: Dykman, J.

text:
    JOSEPH UPPER and JAMES S. SMITH, App’lts, v. CALVIN SCRIPTURE, Resp’t.
    Accounting—Not ordered when accounts have been stated and settled.
    Appeai. from a judgment entered upon the report of a referee and from an order denying a motion to set aside said report.

      Alex, Thain, for app’lls; Porter & Waltz, for resp’t.
   Dykman, J.

This action was brought to obtain an accounting between the parties respecting a joint adventure as contractors.

It was the claim of the defendant that all the transactions and accounts respecting the contract and business referred to and specified in the complaint has been adjusted and settled between the parties, and that the accounts between them had been stated, and that payments had been made and accepted by all the parties in pursuance of such settlement.

The referee before whom the cause was tried found for the defendant, and found that there had been a full settlement of all the matters and things alleged in the complaint and a division between the parties according to such settlement.

The finding of the referee is fully sustained by the proof, and we find no error.

The judgment should be affirmed, with costs.

The plaintiffs made a motion to set aside the report which was denied, and they appealed from the order.

There is no merit in the appeal, and the order should be affirmed, with ten dollars costs and disbursements.

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


text:
    ALICE R. SYMONS v. WILLIAM SYMONS.
    Attachment—Sufficiency of affidavit.
    Appeal from an order denying a motion to vacate an attachment on the ground of the insufficiency of the affidavit upon which it was issued.
    The affidavit of the plaintiff alleges that she paid and delivered to thedefendant the sum of $2,500 to invest for her; that he received it for that purpose; that it bad been demanded from him; that he had appointed a time when he would return it, but had failed to refund, and that he had converted the money to his own use.

      Blandy & Hatch, for William E. Clark et al., subsequent attaching creditors, app’lts; John Z. Lott, forpl’ff.
   Dykman, J.

There was a warrant of attachment against the property of the defendant in this action, and subsequently another attachment was issued against him in favor of another creditor, and seizures of property were made under both warrants.

Then the plaintiff in the second attachment made a motion to vacate the first attachment on the ground of the insufficiency of the affidavit upon which it was issued, and the undertaking tendered upon its procurement.

The motion was denied, and from the order of denial this appeal is taken.

We find the affidavit and undertaking sufficient, and the order should be affirmed, with ten dollars costs and disbursements.

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


text:
    ELIZABETH J. OSBORNE, Resp’t, v. NEW YORK MUTUAL INS. COMPANY, App’lt.
    Practice—Bill of particulars—When not granted.
    Appeal from an order denying a motion for a bill of particulars.

      Jas. K. Hill, Winy <6 Shoudy, for resp’t; George A. Black, for app’lt.
   Pratt, J.

As pointed out in the opinion at special term, the application seeks for the details of plaintiff’s evidence and not for the items of plaintiff’s claim.

The claim of plaintiff is for a total loss, whereby the sum of $2,000 became payable.

if defendants seek to avail themselves of such knowledge as plaintiff may . have concerning the details of damage sustained, they must seek another method.

Order affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


text:
    EMMA. ALDRICH, App’lt, v. FREDERICK SCHRADER, Jr.,et al.,RESP’TS.
    Civil damage act—Damages—Measure of.
    Appeal from a judgment for costs entered in favor of defendent on a verdict in favor of plaintiff for the sum of twenty-five dollars.

      Lawlor & Swits, for app’lt; William J. Marshall, for resp'ts; Nelson H. Baker, counsel for resp’ts.
   Pratt, J.

It is difficult to decide what process of reasoning was adopted by the jury in order to reach such a verdict as was rendered in this case. A verdict for the defendants might well have been rendered, but having decided in favor of the plaintiff, it seems hardly plausible to find a verdict in so small an amount.

But the case involved pure questions of fact. That the defendant sold the plaintiff’s husband liquor, the jury has found; the next question is how much she had been injured in her means of support. The jury has determined the amount at twenty-five dollars; while the amount seems totally inadequate, yet this case falls within that class usually called “ hard actions,” in which the verdict of a jury is seldom disturbed, unless it is manifestly the result of partiality, passion or prejudice.

It is possible to harmonize this verdict with the evidence without ascribing improper motives to the jury. Considering the habits of the plaintiff’s husband, it may well be that the jury believed that all the plaintiff had suffered in her means of support was the twenty-five dollars stated in their verdict.

Considering the nature of the action and all the testimony given upon the trial, we do not think this is a case where a new trial ought to-be granted.

Judgment affirmed, with costs.


text:
    AUGUSTUS R. GRIFFIN, as Receiver of the SOUTHERN HEMPSTEAD BRANCH RAILROAD COMPANY, Resp’t, v. THE LONG ISLAND RAILROAD COMPANY, App’lt.
    Title to property—When question of fact—Verdict of jury will NOT BE DISTURBED.
    Appeal from a judgment entered upon a verdict in favor of plaintiff.

      Hinsdale & Sprague, for app’lt; Weller <6 Brisbane, for resp’t.
   Dykman, J.

This action is prosecuted for the recovery of two railway passenger cars, to which both parties claim title.

The plaintiff is the receiver of the Southern Hempstead Branch Railroad Company, and claims these cars as such receiver, while the defendant claims title through the Southern Railroad Company.

These rival claims were fully investigated upon the trial and submitted to the jury, and decided in favor of the plaintiff, who obtained the verdict.

The trial was conducted in accordance with the decision of the court of appeals, and both parties were allowed full liberty of proof.

Some objections were taken by the defendant to the introduction of testimony proposed and offered by the plaintiff, but they possess no merit, and were properly disposed of upon the trial.

Whether the statute of limitations was applicable to defeat the claim of the plaintiff depended upon two facts, which were fairly and fully explained, and submitted to the jury, and under the influence of the verdict it must be assumed that both questions were decided adversely to the defendant.

The record presents no error and the judgment should be affirmed, with costs.

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


author: Per Curiam.

text:
    FOURTH DEPARTMENT, GENERAL TERM.
    Filed January, 1887.
    ELLIS R. WILLIAMS, Resp’t, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, App’lt.
    Negligence—When the question as to the negligence of the master, in failing to provide for the safety of his employee, should be LEFT TO THE JURY—THE OMISSION OF THE MASTER MUST BE SHOWN TO BE THE APPROXIMATE CAUSE OF THE INJURY.
    Appeal from order denying new trial and from judgment on verdict.
    W. T. Dunmore, for pl’ff and resp’t; Brands Kernan, for def’t and app’lt.
   Per Curiam.

This case was before the court upon a former appeal, 39 Hun, 430, when all the questions now presented for our consideration were decided as appears by the opinion of Mr. Justice Martin. The new evidence presented upon the present trial in our opinion does not affect the principles of law applicable, or obviate in any respect the former decision of this court. It was then held that (under the evidence as then presented, and not now modified in any essential particular) it was a question of fact whether the defendant, was guilty of negligence in maintaining so low a bridge; that it was a question of fact whether plaintiff knew or ought to have known its position and danger; that it was a question of fact whether the plaintiff was guilty of contributory negligence, and finally that all these questions of fact were properly submitted to the jury. The law of the case had been adjudged in this court, and the defendant must resort to a higher court, for a further consideration of its exceptions.

The judgment and order appealed from must be affirmed, with costs, upon the opinion of Mr. Justice Martin, in 39 Hun, 430.

Follett, J., not sitting.


text:
    ELIZA CRUGER, App’lt, v. RICHARD WIGHAM, Resp’t.
    Appeal from an order directing relaxation of costs.

      W. Yeomans, for pl’ff; Isaac Maynard, for def’t.
   Order affirmed, with ten dollars costs and printing disbursements.

All concur.


text:
    SYLVANUS HOAG, App’lt, v. WILLIAM C. WILCOX, Resp’t.
    Appeal from judgmentof county court reversing the judgment of the justice.

      Ooodier & Wolcott, for pl’ff; S. M. Lindsley, for def’t.
   Judgment of county court reversed, and that of the justice affirmed, with costs.

All concur.


text:
    WILLIAM H. DANNATT et al., Resp’ts, v. NORMAN J. FULLER, App’lt.
    Appeal from judgment on report of referee.
    ' Bently <6 Jones, for pl’ff; U. J. Welch, for def’t.
   Judgment affirmed, with costs.

Follett, J., dissenting.


text:
    MICHAEL A. McOWEN, App’lt; v. MOSES BARNEY et al., Resp’ts.
    Appeal from judgment on decision of Churchill justice, dismissing the complaint.

      C. D. Adams, for pl’ff and app’lt; William Kernan, for def’t and resp’ts.
   Judgment affirmed, with costs.

Follett, J., concurs; Hardin, J., not voting.


text:
    HENNAN A. CANNER, as Receiver, etc., v. WM. J. MONTAGUE et al.

    Appeal from interlocutory judgment overruling separate demurrers of the defendants to the complaints.

      Pierce <6 Stone, for pl’ff; Montaige, Smith <§ Little, for deft.
   The interlocutory judgment should be affirmed with costs, upon the opinion ■of Merwin, J., at special term.

All concur.


text:
    THE VILLAGE OF CARTHAGE, Resp’t, v. CAILOS L. FREDERICK, App’lt.

      Laming & Sogers, for pl’ff; A. E. Kilby, for deft.
   The judgment of the county court affirming the judgment of the police justice should be affirmed with costs upon the opinion of Judge Walts, in the county court.

All concur.


author: Boardman, J. Follett, J.

text:
    FOURTH DEPARTMENT, GENERAL TERM.
    Filed April, 1887.
    ELTIS M. JENNINGS, Resp’t, v. ROXANA JENNINGS, App’lt.
    Title—Ejectment—Was the deed pounded on a valuable consideration OR WAS IT A QIPT.
    Appeal from judgment in favor of plaintiff in an action of ejectment and from an order denying a new trial.

      Lwnsing & Sogers, for pl’ff; John Laming, for deft.
   Boardman, J.

Judgment and order affirmed, with costs

Hardin, J., concurs; Follett, J., dissents.

Follett, J.

(dissenting).—The important question of fact litigated before the jury was, whether the deed was founded on a valuable consideration or whether it was a gift. The consideration recited was $3,000. Horatio S. Porter, who drafted the deed and took and certified the acknowledgment, was permitted to testify, over defendant’s objection and exception: “ A. I said like this: I understood the old gentleman owed Ellis for money that was put into this house, six to twelve hundred dollars, and the principal and interest would amount to the $3,000 at the time from the time the house was built.” The evident purpose of the plaintiff in introducing this evidence was to induce the jury to believe that the deed was executed on a consideration. It being evidence of a conversation had when the deed was drafted, and coming from the magistrate who drafted it and being received under the sanction of the court, it could hardly have failed to have influenced the jury upon the issue. The incompetency of the evidence does not seem to be debatable. “ This was not said in the presence of David Jennings; I could not say whether his wife was present or not.” “ I do not say that there was any one present at the time except the doctor, that is, of the family; Silas Jones was there; I do not know whether prior to the execution of the deed either the deceased or the defendant knew what the consideration expressed in the deed was.” This witness had previously testified that no money was passed, no talk had about buying the farm, and that the deed was not read to or by the grantors before execution, and there is no evidence that it was read after execution. The objection to this evidence was specific, and pointed out the precise reason why it was incompetent.

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


author: Boardman, J.

text:
    LUCY POMEROY, Resp’t, v. DELAWARE AND HUDSON CANAL CO., App’lt.
    Appeal from judgment on verdict and from order denying a new trial.

      C. L. Barber, for pl’ff; Edwin Young, for def’t.
   Boardman, J.

Judgment and order affirmed, with costs.

Hardin, P. J., and Follett, J., concur.


text:
    JOHN W. ALEXANDER, as Assignee of Samuel W Cable, v. JOHN and HENRY LUCKEY.
    Motion for new trial on exceptions.

      Faucher & Sewell, for pl’ffs; Alexander Neist, for deft. •
   Boardman, J.

The motion for a new trial denied, and judgment entered for the plaintiff on the verdict, with costs.

Hardin, P. J., and Follett, J,, concur.


text:
    WILLIAM W. TEAL, Resp’t, v. THE CITY OF SYRACUSE, App’lt.
    Appeal from judgment on decision of justice.
    Plaintiff in person; Louis Marshall, for def’t.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of Mr. Justice Merwin at, the circuit.


text:
    AUGUSTUS ROSS, as Executor, etc., et al., App’lts, v. DeWITT A. GLEASON et al., Resp’ts.
    Appeal from decree of the surrogate refusing probate to the second codicil to the will of Alexander Foster, deceased.

      J, S. Newton, for pl’ff; James W. Glover, for def’t.
   Boardman, J.

Decree of the surrogate, so far as appealed from, reversed, with costs to the appellants to be paid personally by the respondents. Proceedings remitted to surrogate’s court, with directions to admit second codicil to probate.

Hardin, P. J., and Follett, J., concur.


text:
    JAMES HODGE, App’lt, v. R. FULTON BROWN, Resp’t.
    Appeal from judgment of non-suit granted by the county court upon a retrial of an action originally brought in a justice’s court.

      Borwin & Brown, for pl’ff; O’Brien, Emerson & Ward, for deft.
   Boardman, J.

Judgment of the county court reversed and a new trial granted, costs to abide the event.

Hardin, P. J., and Follett, J , concur.


text:
    LOUISA V. S. DOXTATER v. SAMUEL WARDELL, Administrator, and Others.
    Appeal from judgment on decision at special term.

      Mr. Jenkins, for pl’ff; Wm. Neman, for def’t.
   Boardman, J.

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

Hardin, P. J., and Follett, J., concur.


text:
    THE ELMIRA IRON AND STEEL ROLLING MILLS COMPANY, App’lt, v. NATHANIEL C. HARRIS, Resp’t.
    Appeal from judgment on verdict and from order denying a new trial.

      F. Collin, for pl’ff; W. L. Smith, for def’t.
   Boardman, J.

The judgment and order should be affirmed, with costs, Hardin, P. J., and Follett, J., concur.


text:
    THURBER J. GILLETTE, Resp’t,v. CORA A. PHILLIPS, App’lt.
    Appeal from judgment on report of referee.

      E. 0. Wright, for pl’ff; O. E. Stephens, for def’t.
   Boardman, J.

The judgment must be affirmed, with costs. i

Hardin, J.—I concur. See Greene v. Roworth (3 N. Y. State Rep., 568), and Roosevelt v. Strohkoeffer (id., 578).

Follett, J., concurs. _


text:
    PHILIP C. MORRIS, Resp’t, v. WILLIAM DUFFUS, App’lt.
    Appeal from judgment of the county court and from order denying new trial.

      J. B. Gline, for pl’ff; W S. Gregord, for def’t.
   Boardman, J.

The judgment and order must be affirmed, with costs. Follett and Hardin, JJ., concur.


text:
    JOEL S. HOYT et al, App’lt, v. ROSELL H. MEAGLEY, Resp’t
    Appeal from judgment dismissing complaint.

      Homer Weston, for app’lt; Clark & Brown, for resp’t.
   Per Curiam.

The judgment is affirmed, with costs.


text:
    LYDIA A. VERNUM, Resp’t, v. ANDREW A. WHEELER, App’lt.
    Appeal from judgment on verdict.

      J. G. McGartin, for pl’ff; Dennis OBrien, for def’t.
   Per Curiam.

The judgment is affirmed, with castes.


author: Dykmah, J.

text:
    Robert W. De Forest, App’lt, v. Samuel A. Walters et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    1. Beed—Mistake—Void.
    Where the president of a hoard of trustees of a town included in his deed, either by mistake or in excess-of his authority, land not purchased by the grantee, it is void as to the addition.
    3. Same—Limitation .
    In such case, where the grantee takes possession only of the parcel intended to be sold, and the town remains in possession of the residue, the statute of limitations does not run in favor of the grantee.
    Appeal from a judgment in favor of defendants.
    ■ Thomas Young, for app’lt; Ni 8 Ackerly ( Wilmot M. '8mith,' of counsel), for resp’ts.
   Dykmah, J.

This is an action of ejectment brought against the defendant Samuel A. Walters to recover the possession of a piece of land under the waters of Gold Spring harbor, in the town of Huntington, Suffolk county. The defendant Walters has possession of the premises by virtue of a written lease to him- executed by the board of trustees of the town of Huntington, dated October 2. 1892. ■ The plaintiff bases his title upon a deed executed by the board of trustees to Henry G. De Forest, dated November 19, Í870. The board of trustees, by their answer, interposed three defenses, as follows: First. That Elias Bay lis, president of the board ■ of trustees, by whom the deed was executed to Dé Forest, had no authority to ■ execute a conveyance of. any part of the land described in the complaint in this action. Second. That the hoard of trustees, at about the date of the deed, sold at pub-' lie auction to the.,plaintiff, De Forest, a tract of land under water in. Gold Spring harbor, the boundaries .of which were distinctly pointed out on . the day of ' sale; ■ that the said deed was intended to convey the ■ land so :sold, but by mutual mistake, was so worded-as' to make if appear, that it embraced other lands, including the lands described in the coin-, plaint. Third. That such description in that deed was made by mistake on the part of said Baylis, and, By fraud on the'part of the plaintiff,' sO, as .to maleé it appear to embrace lands :not sold, and--’ apt intended 'to be sold or conveyed, to the plaintiff., -Thebase" was tried at the Suffolk county circuit, before a jury, to which the question of the authority'of the president of the board of trustees to execute the deed was submitted, but the other questions were reserved for decision by the court. The jury found a verdict for the plaintiff on the question submitted. But the court subsequently filed' a decision setting aside the verdict of the jury, as against evidence, and finding that the board of trustees sold to the plaintiff a piece of land under water, in Cold Spring harbor, which did not include the premises in question; that the president of the board, Elias Baylis, and the plaintiff, both directed a lawyer by the name of Charles R. Street to draw a deed of the premises sold, and that such deed was drawn, executed, and delivered, and. accepted, but by mutual mistake the description embraced lands not so sold and purchased, and not intended to be, and that the description embraced the lands described in the complaint, and a large tract in addition thereto; that the plaintiff took possession of the lands actually sold, and his successors remained in possession thereof from that time; that the board of trustees of the town of Huntington remained in possession of the other lands embraced in such erroneous description, and were in possession thereof, either directly or by their lessees, at the time of the commencement of this action. Judgment was entered upon that decision dismissing the complaint of the plaintiff, and reforming the deed, so as to embrace only the land actually sold by the board of trustees to the plaintiff. From that judgment the plaintiff has appealed to this court. ' °

Our examination of the case leads us to the conclusion that the submission of the question to the jury was erroneous, and that the verdict was properly set aside, and that the testimony fully justifies the finding of the judge. If the boundaries in the deed to the plaintiff under which he claims title included the premises he claims, then it is void, because there is no authority for the execution of such a- conveyance. The testimony of Street, the lawyer who drew the conveyance, shows that both parties knew precisely what was sold, and. that the plaintiff knew that the president had' no authority to convey more than was sold. Hence, a verdict that the president had authority to convey more than was sold is directly against the evidence, and could not be permitted to stand, That portion of the deed which assumes to convey the premises in this case being void for want of power- in the officer of the corporation to execute it, the judgment, for that reason, should be affirmed. The property intended to be conveyed was plainly defined, and nothing more can pass by the sale and conveyance. The evidence of mistake is overwhelming, and justice is plainly worked out by this judgment.

In respect to the statute of limitations, it is to be said that both parties assumed, up to the time of the commencement of this action, that the deed to the plaintiff embraced only the land sold at auction. The plaintiff took possession only of the lands he bought, and the town remained in possession of the remaining land, as if the deed was drawn precisely in accordance with the facts; and reformation of the deed gives the town no more than it already has, and deprives the plaintiff of nothing he has ever had. So that, in substance and in effect, the relief asked for, and granted, is nothing but the removal of a cloud upon the title of the town. If the plaintiff, after he had received his deed, had entered into possession of all the premises which he now claims to be embraced therein from the town, claiming a title thereto by virtue of such deed, an action on the part of the town to reform the deed so as to embrace only the land sold at auction would be barred by the statute of limitations; but now the case is entirely different, as we have already stated, for the reason that the plaintiff did not take possession of the land which he now claims. Schoener v. Lissauer, 107 N. Y., 111; 11 St. Rep. 368; Miner v. Beekman, 50 N. Y., 337.

The exceptions disclose no error, and the appeal is destitute of merit.

The judgment should be affirmed, with costs. All concur.


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    Patrick Evers et al., App’lts, v. Long Island City, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Municipal corporations—Sewers.
    A city is liable, where a sewer, maintained by it, is so constructed that it causes water to flow back into cellars connected with it.
    Appeal from a judgment dismissing the complaint

      Lyman W. Redington, for app’lts; William jW. Stewart, for
   Dykman, J.

This is an action to recover damages for injuries sustained by the plaintiffs by reason of the negligence of the defendant in the construction and maintenance of a sewer in Long Island City. At the close of the plaintiffs’ case the complaint was dismissed, and from the judgment of dismissal the plaintiffs have appealed.

The plaintiffs are in possession of a house and lot on Flushing avenue, in Long Island City. There is an earthen sewer pipe, 15 or 18 inches in size, in Flushing avenue, and the plaintiffs connected their cellar with this sewer by permission at the time of the erection of their dwelling by a six-inch pipe, which is higher where it runs into the cellar, by two or three feet, than the main sewer pipe. The water-closet of the plaintiffs was in the cellar of the house. The cellar was dry, and the plaintiffs had a stove in it, and used it for a summer kitchen until they were driven out by the sewage coming into the cellar from ,the sewer. The Flushing avenue sewer runs from easterly of the plaintiffs’ house westerly to the East river, and carries off the sewage of a large and thickly-populated district, and receives sewage from premises above and beyond those of the plaintiffs. The testimony tended to show that the main sewer was built by commissioners some years ago, and that they had made a report in writing, and turned over their books and papers to Long Island City. Patrick Gleason, a witness for the plaintiffs, testified that he was mayor of Long Island.' City for six years, ending January 21st, 1893; that his attention was first called to the sewer in 1886, when an alderman of Long Island City; that, as mayor of Long Island City, he signed contracts for the maintenance and cleaning of these sewers on Flushing avenue; that the city itself cleaned them, and entered into contracts therefor, and the mayor and commissioner of public works signed the contracts; that there was a general complaint for four or five years that filth from the sewer came into the cellars of residents on the avenue; that he caused a map to he made by an engineer appointed by the board of health; that there was a pitch in this sewer both ways some 300 or 400 feet east of the plaintiffs’ premises; that the witness recommended the common council to appropriate money to reconstruct the sewer according to the map made recently by the engineer; that the reason filth from the sewer came into the-cellar was because the sewer was not properly constructed. Two witnesses testified that they were employed by Long Island City by resolution of the board of aldermen in May, 1893, to do work about this sewer in its reparation.. Another witness testified that he had the contract in writing from Lung Island City for cleaning this sewer, and cleaned it for the last time in May or June, 1893. It appeared from the testimony that there was for years an outlet in the main sewer .some 300 or 400 feet east of the house of the plaintiffs, where there was a connection made that let the excessive sewage run out upon certain waste land on the north side of Flushing avenue; that this outlet was a.break or opening in the sewer and the pipe both; that somebody had broken out the1 brickwork of the manhole at this point about three feet, from the bottom, - and had in sorted'an earthern pipe into this opening to let the water or sewage'out upon the waste land north of Flushing avenue, thereby relieving the strain on the main sewer. It further appeared that this outlet 'was 'closed up by order of the hoard of aldermen of Long Island City'in May, 1893, by two men employed by the city, who stopped it up with, brick and cement. The testimony'on the part of the plaintiff', also' showed that, before this outlet or break hole was closed up, they only .had trouble after very heavy storms, and then'.'only-clear water backed up through their connecting pipes into their cellar; but after the hole or outlet was closed -in May, 1893, a very little rain forced sewage matter, water-clbset deposits, papers, and filth' from the main sewer up through the' connecting pipe with a rush 'into the cellar, sometimes two feet in depth'. ' Since May, 18'p3,- this has 'occurred five or six times, áñcl 'it sends foul and noxionS'odórs through flic hoiise, so that the plaintiffs wore unable to use the • cellar, except to pass to 'the-water-closet and back,'although, previous' to-that time, they, had used it for a: summer kitchen.. It' appeared that measurements liad been taken of the. depth óf sewage'in different manholes, commencing afthe premises of .the plaintiffs and going east - with the following result:' -eight inches, ten- inches, 'nine' inches, and twelve 'inches.- These measurements included the portion where' the witriess Grleaspn testified'the sewer .pitched hottr ways, and. was not properly constructed. One witness- examined-' the sewer afc the locality in question, and went down into it, and found a stump of a broom and chips in it, and the sewage stationary, being about ten or twelve inches in depth. It appeared that the plaintiff Patrick Evers had notified the mayor, aldermen, health commissioners, citjr inspector, and commissioner of public works of Long Island City several times of the trouble with the sewer, and- requested relief, but nothing was done. The plaintiffs suffered loss from the sewer through damage to personal property, sickness in their family, and through damage to the household through annoyance and inconvenience.

It appears from this recitation 'of facts that the sewer in question, though constructed originally by commissioners under a special act, was turned over to the city many years ago, and the commission has ceased to exist. The sewer lias been owned and controlled by the city ever since. The expense of the sewer was paid primarily by the issuance of certificates, but ultimately by the assessments upon the property benefited. By the charter of the city, power is bestowed upon the common council to regulate the building and reparation of sewers. Laws 1871, p. 905. Under such circumstances, the duty devolved upon the defendant to keep the sewer in repair so far -as the property connected with it by private drains is concerned, and is liable for negligence to such persons if they sustain injury which would have been averted if the sewer liad been maintained in order. McCarthy v. City of Syracuse, 46 N. Y. 196. As the sewer was constructed and accepted by the city, the negligence in its maintenance created a liability against the city to the injured party. Barton v. City of Syracuse, 36 N. Y. 58. If the sewer is negligently permitted to become obstructed or filled up, so that it causes the water to flow back into cellars connected with it, there is a liability therefor on the part of the municipal corporation for the control of it, and which is bound to preserve and keep in repair the erections it has constructed, so that they shall not become a source of annoyance to others. Dill. Mun. Corp. § 802. Although the duty resting upon the corporation to make streets, sidewalks, and sewers is judicial in its nature, yet, after they are constructed, the duty of keeping them in repair is ministerial, and an omission in its performance imposes liability to the party injured. Hines v. City of Lockport, 50 N. Y. 236. In the case of Smith v. Mayor, etc., 66 N. Y. 295, the sewer was sufficient, but was temporarily obstructed. It was there held that the city was liable for negligence alone, and, as there was no proof of notice, the action failed. In this case the proof of notice was ample. The liability of municipal corporations for injuries to property resulting from defective sewers has been maintained by the courts in cases analogous to this, based upon the duty of such corporations to exercise the powers conferred upon them by their charters to construct sewers and make their improvements for the benefit of property owners. Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur.


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    William J. Foley, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Negligence — Child—Non stri juris.
    Where a child, non sui juris, is injured, the negligence of the parents must concur with the negligence of the child, to constitute contributory negligence.
    Appeal from a judgment of nonsuit.

      John M. Gardner, for app’lfc; Ashbel Green (A. S. Cassedy, of counsel), for resp’t
   Dykman, J.

This is an action for the recovery of damages for causing the deáth of the plaintiff’s intestate, who was his own son, about four years and four months old. The accident occurred on the West Shore Eailroad, near New Windsor, and the facts' are substantially as follows : The plaintiff resided at New Windsor, on the west side of a public road leading from the city of Newburg to Cornwall, and about six or seven hundred feet from the place where the accident occurred. He had a wife and two children residing with him,—his son John, the deceased, four years and four months old, and a daughter, Mamie, aged seven years. The children were playing near the house with Anna McCull ough. The mother saw them all playing about 140 feet from the house at half past 2 o’clock in the afternoon. The father saw them playing within about 50 feet of the house an hour before the accident. That is the last that either father or mother saw of the children until after the occurrence. The • mother had seen Anna McCullough playing with her children on one or two occasions previous to this. On the afternoon of November 13,1892, which was Sunday, Anna McCullough started with the other two children down the highway, and after passing some brickyards, they started and walked up the track of the West Shore road towards Newburgh. They passed over one culvert or trestle above the Gillies’ yard, and passed the Walsh yard, and were walking over the second culvert or trestle opposite the Christie yard. When upon the culvert,' they heard the locomotive whistle blow, looked back, and saw the cars coming. John, the deoeased child, then tripped and fell upon the trestle, and was s'till down when the engine reached him. ' After the train passed, the boy was found under the culvert, about the fourth tie from the north end, dead. Across the culvert or trestle were square ties or timbers about eight or ten inches apart, upon which the track, was laid, the stringers-running at the side of the track about six inches in height. The boy was struck by the Newburg local, which was running north. There were no highways crossing the tracks of the railroad between Cornwall and the city of Newburg—a distance of about four miles—and the accident occurred within those limits south of the city. The track is.straight for three-quarters of a mile or more south of the culvert. The train consisted of three coaches, and a combined car, locomotive, and tender, The air brakes and appliances were in good order. When about 1,000 or 2,000 feet away, the engineer, looking through the cab window, saw something upon the track, and immediately blew the whistle. He then saw they were two girls. Both left the track, and then one turned and came back. He blew the whistle twice. When lie saw one girl go back, he applied the air brakes with one hand, and reversed the engine with the other, and, when he was within about 200 feet of the trestle, for the first time he saw this boy. He was down on the trestle, and he only saw him from his body up. He could not see his .arms, and the boy was lying with his face flat down. When the girl started back, the engineer saw something which he thought was a dog, hut which he immediately discovered was something else, and proved to be the deceased boy. At the time of the accident the train was running at a speed of from 40 to 45 miles an hour, which is not an unusual rate at that place, or at other points on the road between ■stations where the track is clear. To stop such a train, running at that rate of speed, would require a distance of about 1,000 feet At the close of all the testimony upon the trial, the defendant moved for a nonsuit on the ground of contributory negligence of the plaintiff, who was the father of the deceased, and also of the deceased, and that no negligence was shown on the part of the defendant, and the motion was granted. The plaintiff then appealed from the judgment which was entered in the action, to the general term.

The nonsuit was based upon the failure of the proof to establish negligence against the defendant, but the question of the contributory negligence of the deceased is also presented upon this appeal, and both questions are, therefore, to be examined. While the deceased child was non siri juris, and was incapable of forfeiting his legal rights by his own negligence, yet, if his parents were negligent, their carelessness may be imputed to him. They were his keepers, to whose exclusive care and custody he is confided, in contemplation of law. If, therefore, they allow him to be ¡heedlessly instrumental in his own injury, they cannot recover damages therefor. Such a rule would permit them to recover for injury resulting from their own misconduct. While the rule, however will not excuse a voluntary injury or a grossly negligent apt, it has full application to a case like the present, where neither is proven. Walking upon the track of the railroad would he regarded as negligent in an adult, and so it must be deemed negligent in the deceased child. If the rule now is as it seems to be, Kunz v. City of Troy, 104 N. Y. 351; 5 St. Rep. 642,—that the negligence of parents must concur with the negligence of the child to constitute contributory negligence,—we think both are manifested by the testimony in this case. The child was unlawfully upon the railroad track with two other children, one nine, and the other seven years of age. They had been away from their parents over one hour. They were near a railroad which was in full operation, and therefore palpably a place of danger. The father and mother were both at home, and knew their children were out on the street, near a place of great danger. They must be deemed to have possessed knowledge, that such children were prone to wander into ■by and forbidden places. We think it was negligence per se to ■have allowed those children to wander away as they did. In relation to the negligence of the defendant, it is to he said that there are no highway crossings for several miles below,the city of Hew-burg, and therefore there was no reason why the train should have diminished its speed. There is no proof that the track or any of the appliances of the train were in disorder. The engineer was on his guard, and his testimony is all we have to prove what ho saw. He did see the children, and sounded the alarm, but he was not then .bound to stop his train; as it was light, and there was no noise to dro>vn the blast of the whistle, he had a right to assume that the children would hear the alarm and leave the track, as there was no difficulty in their so doing. They had only to step aside a few feet, upon the other track, and he could not assume that either of them would-fall. .“All the engineer was bound to do after the discovery of the peril wa§ 'to use reasonable diligence, and care to avoid it.” Chrystal v. Troy & B. Railroad Co., 105 N. Y. 164; 6 St. Rep. 833; Id., 124 N. Y. 519; 36 St. Rep. 699. We find the evidence insufficient'to sustain a finding that he did not use reasonable care or was guilty of negligence.

Upon the trial, the testimony to show that the people about Hew Windsor were in the habit of going up and down the railroad track at the point in question was excluded, and that exclusion is now assigned as error. Such testimony would only show that many people committed trespass upon the railroad, and it was properly excluded. Our conclusion is that the judgment, should be affirmed, with costs.


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    Bennett F. Hines, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Master and servant—Risk.
    A trrakeman lias the right to rely upon the performance by the company of the duty to maintain a telltale as required by law for his protection.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      F. Loomis (Robert F. Wilkinson, of counsel), for app’lt; A. M. <& G. Card, for resp’t.
   Dykman, J.

This is an appeal from a judgment and order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of damages for injuries sustained by the. plaintiff while in the employ of the defendant upon tne Harlem branch of its road in the capacity of a brakeman. There is a public highway which crosses the railroad a short distance above Dover Furnace upon an ordinary wooden bridge of sufficient height to admit the safe passage of a brakeman when sitting down, but not when standing. The company had caused the usual warning telltale to be constructed on the north side of the bridge, and the plaintiff had knowledge of the existence of both. The telltale was constructed in the usual manner, so that the suspended ropes could strike a hrakeman on thé top of a car passing under the same, but on the day of the accident two of the midmost wires were bent, and the ropes which hung from them twisted around the others, go as to leave an opening sufficiently wide to permit the passage of. the body of a man without contact. On the day of the accident, in January, 1893, the plaintiff was operating the brakes upon a freight train of six cars, including a caboose. As the train approached Dover Furnace from the north, the plaintiff crossed on the top of the first car in front of the caboose, facing towards the south, and applied the brake on the north end of the second car from the caboose, then crossed the second ear, and applied the brake on the north end of the third car. All this time the car was in sight of the bridge. After applying those brakes the plaintiff remained on the top of the third car, facing the north. At a signal given for that purpose, the plaintiff let off the brake on the third car, and was walking on the top of the second car, when he was struck by the bridge, and knocked down on the top of the car, and received the serious injury for which this action is brought The cause was tried at the circuit, and the jury rendered a verdict in favor of the plaintiff for $2,900. At the close of the plaintiff’s case upon the trial the counsel for the defendant moved to dismiss the complaint on the ground of the absence of proof of negligence on the part of the defendant, and of the freedom of the plaintiff from negligence. Also that it was proven that the negligence- of the plaintiff did contribute to the injury. That motion was denied, and the defendant now assigns that denial as error. At that stage of the case there was evidence from which the jury might find in favor of the plaintiff upon ,all the questions involved. At the time of the accident the plaintiff was engaged in the discharge of his duties, and at the place where he was required to be for that purpose; and, while he assumed all the risk incident to a dangerous employment by the acceptance of the service, he yet had the right to expect that the defendant would use the care required by law for his protection.

The charge of the trial judge to the jury was favorable to the defendant, and imposed upon the plaintiff's case a burden which was heavy and severe. The jury was told that: “IE the company erected a good telltale and the telltale was in order, it is immaterial to the defendant whether the man was notified by it or not. They were not bound except by the law, and if they obeyed the law they were not liable.” Again, the jury was told: “ The plaintiff must prove that - he did his duty. A brakeman upon a train is bound to be vigilant and alert, to look out for danger, to inform himself constantly as to the effect of any act which he does upon the railroad; and if, in the exercise of vigilance, he knew, or should have seen, that this telltale was out of order, he cannot recover, even though the company did wrong.” This charge fails to instruct the jury that the plaintiff had the right to rely upon the performance by the defendant of the duty to maintain the telltale in order, but, as the case successfully sustained the burdens imposed upon it by the charge, the point ceases to be material further than to show that the jury must have found the evidence amply sufficient upon the questions involved to sustain the action.

There was no exception to the charge, and the judgment and order should be affirmed, with costs.

All concur.


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    Bertram A. McDowell, App’lt, v. Homer Ramsdell Transportation Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed, May 14, 1894.)

    Master and servant—Relation.
    Where the charterers hire the boat and crew, it constitutes the crew their servants.
    Appeal from a judgment of nonsuit.

      Albert II. F. Seeger (Wood & Morschauser, of counsel), for app’lt; M. H. Hirschberg, for resp’t
   Dykman, J.

If the plaintiff prevails in this action, it must be upon the successful invocation of the principle of respondeat superior, because the individual who perpetrated the cruel wrong upon him is not sued; the claim of the plaintiff being that he was the servant of the defendant, who was, therefore, responsible for his wrongful act. The rule of law that what a man does by another he does by himself, is so well established that it has passed into a legal maxim. And upon that rule is built up another legal principle, equally well established, under the name of respondeat superior, which belongs to the relation of principal and agent, master and servant, puperior and subordinate, and is co-extensive with those relations. The rule itself is free from obscurity, and easily understood, but its applicability to a given case is oftentimes very uncertain, arising from the difficulty of determining whose servant the person is who perpetrated the wrong which caused the injury, The basis of the rule is the power of the superior to prevent the injury by controlling the subordinate, and, where such power does not exist, the rule has no application. It will be of paramount importance, therefore, to ascertain whether the individual who injured the plaintiff was the servant of the defendant at the time of the commission of the act, and therefore a recitation of the facts will not be inappropriate.

On the 3d day of August, 1892, the defendant was the owner of the steamboat James T. Brett, which was in commission, and supplied with the complement of officers and men employed by the defendant for the successful navigation of the vessel. On that day the boat was chartered to Mink and Burnett for an excursion from Highland, in Ulster county, to Coney Island and back. The charterers advertised the excursion in their own name, and assumed the control of the boat and crew, and received the proceeds of the venture. The excursion was made without accident until the return of the boat to the dock at Fishkill landing in the evening. When the boat was leaving the dock, the plaintiff requested and received permission from Burnett to go on board the boat At that time the gang-plank had been hauled in, the rail put up, and the paddle wheels started. The plaintiff jumped upon the guard of the boat outside the rail, and was shoved off luto the water by one of the crew. The boat was stopped, and the plaintiff was rescued, but be was placed in imminent peril of his life. At the close of the trial at the circuit the plaintiff was nonsuited, and he has appealed from the judgment.

In the examination of the case we will assume that the plaintiE had the right to go upon the boat as he undertook to do, and that his expulsion was wrongful. While it might be a presumption of law arising from the ownership of the boat that it was in use for its benefit, that presumption is overcome in this case by the proof that the ownership was separate from the possession, which was not in subordination to the title, but to the charter party. An excursion may be concluded without danger or harm to any one. K it could not, then the defendant might be liable, because it chartered the boat for that very service, and could not escape liability by interposing the contract to do the thing that caused the injury, It is to be observed also that the injury of the plaintiff did not result from any defect in the boat or its machinery or appliances, nor from any fault in the navigation or management of the boat, but from the wrongful conduct of one of the crew. The owner surrendered all control of the boat, and all her employes, and had no immediate interest in her earnings during the existence of the charter party. There was, therefore, an actual demise of the vessel, which stripped the owner not only of the possession of the boat, but also of all authority and control over her. When the charterers hired the boat and crew, that was an adoption and selection of the men, and constituted them their servants, and the men were under their full control. They could remove any o£ the deck hands for disobedience or misconduct, and that power brought them within the rule laid down in Quarman v. Burnett, hereafter noticed. These facts appear to be sufficient to bring the case within the decision of the court of appeals, in the case of Scarff v. Metcalf, 107 N. Y. 211; 11 St. Rep. 396. They create the relation of master and servant between the crew and charterers. As there cannot be two superiors at the same time, the defendant is relieved from the position if our decision is correct. In the case of Blake v. Ferris, 5 N. Y. 48, the doctrine of respondeat superior received the fullest exposition, and the teaching of the case is adverse to the plaintiff here. It was there decided that the immediate employer of the servant, through whose negligence an injury occurred, was personally responsible therefor, and that rule is in accordance with reason and justice when applied to this case. The defendant surrendered the boat and crew to Mink and Barnett, and during the continuance of the charter party they exercised absolute authority over both. So far as the crew was concerned, they were subject to the orders of Mink and Burnett. B was therefore their duty to prevent the molestation of the passengers by the crew, and there was none other who could. The defendant had no superintendent or other person on board to exercise any supervision or care, and, as they were destitute of power, they should be held free from responsibility. The appellant has referred to an English case where the lessee of a ferry hired from the defendants a boat and creW for one day to carry passengers across. He received the fares and paid the defendants for the boat. They sent the crew and paid them. The plaintiff, who was a passenger, went on board for the purpose of crossing, and was injured while there by the breaking of some of the tackle by the negligence of the crew, and the court permitted a recovery. It appeared in that case, however, that the crew was controlled by the defendants, and, besides that, the cause of the injury was the breaking of the tackle belonging to the boat. The case is not sufficiently analagous to this to render it authoritative. There are several English cases much like this. In the case of Milligan v. Wedge, 12 Adol. & E. 737, the defendant, who-was abutoher, employed a drover to drive an ox to his slaughterhouse. The drover employed a boy to drive the ox, and he permitted it to run into the show room of the plaintiff, where it caused damage. The defendant had the verdict, which was sustained on appeal. In Quarman v. Burnett, 6 Mees. & W. 499, the defendants owned a carriage, and hired a pair of horses and driver to draw it for a short time, during which the horse and chaise of the plaintiff were injured by the carelessness of the driver, and a suit was brought against the defendants. The plaintiff obtained the verdict, and the judge reserved the right to move for a non-suit, and upon that motion the decision was that the defendants were not liable, and a verdict was entered in their favor. The opinion in that case contains the following language: “ That person is undoubtedly liable who stands in the relation of master to the wrongdoer, and who selected him as his servant from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey. But the Iiablity by virtue of the relation of master and servant must cease when the relation itself ceases to exist, and another person than the master of such servant cannot be liable on the simple ground that the servant is the servant of another, and his act the act of another. In the cases of Rapson v. Cubitt, 9 Mees. & W. 709, and Allen v. Hayward, 7 Adol. & E. (N. S.) 960, the facts were similar to the others, and the decisions were the same way. In the case of Laugher v. Pointer, 5 Barn. & C. 547, which was similar, the judges were divided upon the question. The only English case which supports the contention of the plaintiff is Bush v. Steinman, 1 Bos. & P. 404, but that case has been overruled and repudiated both in England and in this country, and is no longer entitled to any respect. Blake v. Ferris, 5 N. Y., 62; Hilliard v. Richardson, 3 Gray, 349. This last case is very instructive, and the facts were these: The defendant, who was the owner of a building by the roadside, entered into a written contract with one Shaw to alter the building into a dwelling house, and to furnish all materials necessary therefor. Shaw procured some boards, and sent them by a teamster, who acted under his direction, to the place for use there, and the teamster piled them up by the side of the road. In a short time thereafter the plaintiff was riding along the road, when his horse became frightened by the boards, and bolted from his course, and the plaintiff was thrown from his wagon, and injured. The plaintiff obtained a verdict, which was set°aside in an elaborate opinion, which held the defendant free from liability, and concluded with these words: “Viewing this as a question not of authority, but to be determined by the application to these facts of the settled principles of law, upon what principle can the defendant be held responsible for this inj ury? He did not himself do the act which caused the injury to the plaintiff. It was not done by one acting by his command or request. It was not done by one whom he had the right to command, over whose conduct he had the financial control, whose operations he might direct, whose negligence he might restrain. It was not an act done for the benefit of the defendant, and from the doing of which an implied obligation for compensation would arise. It was not an act done in the occupation of land by the defendant, or upon land to which, upon the facts, he had any "title.”

These words apply with equal force, to this case and are decisive of this appeal.

The judgment should be affirmed, with costs.


author: Merwin, J.

text:
    Emma F. M. Ayres, Resp’t, v. Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Supreme Court, General Term,, Fourth Department,

      Filed May 18, 1894.)

    Carriers—Negligence—Postal clerk.
    The mere act of a postal clerk in throwing ófí a mail bag upon the passenger platform, without the previous knowledge of the railroad company ■ of his intention to do so, is not negligence on the part of the company.
    -. Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes. ' ' i
    i William Kepnan, for app’lt; Adelbert K Carroll,’ for resp’t.
   Merwin, J.

1This action is brought to recover damages sustained, as the plaintiff claims, by reason of. the negligence of the defendant. On the 24th day of October, 1891, the plaintiff was at the station of defendant at North Brookfield for the purpose of taking the train to Htica that was due at North Brookfield from the south at 33 minutes past 5 in the afternoon. The train was about half an.hour late. After purchasing a ticket', she remained in the waiting room until the arrival of the train; and it was then, as the plaintiff claims, quite dark. As the train stopped, the plaintiff, in order to reach the passenger car, passed from the door •of the waiting room southerly along the platform, and while doing so 'Stumbled and fell over a mail bag that had ■ been thrown, on to the platform- by. the postal clerk in the- mail car as the train'came along, and before it stopped. The mail bag'-was about thirty feet southerly from the waiting-room door, - The 'plaintiff is a physician, and in the fall she received.injuries which, as tile evidence upon-her part tends to show, were of a very serious character. She claims that the fall and the consequent injury were attributable to the negligence of the defendant, in that the platform was not sufficiently lighted, and that the defendant should have prevented the throwing of the mail bag on to the platform in the way of passengers who were about getting on to the train. There was evidence upon the part of the plaintiff tending to show that upon some prior occasions the mail bag had been thrown in about the same locality, and the court charged that, if the conductor of the train knew of such prior deposit, then the defendant was liable for the act of the mail clerk on the case in question. The question whether the platform was sufficiently lighted to enable the plaintiff, in the exercise of reasonable care, to have seen and avoided the obstacle, was sharply litigated, and upon the evidence it was a question of fact for the jury. The court, in effect, charged the jury that, if the defendant was negligent in this regard, the plaintiff was entitled to recover, unless there was contributory negligence on her part.

The counsel for the defendant asked the court to charge that, if the jury believed that the platform was lighted sufficiently for the purposes oijthe passengers getting on and off the cars with safety if the mail bag had not been thrown there, and that this was the first time the mail bag had been thrown off there, the defendant is not liable. The court refused to so-charge, and the defendant duly excepted. It is now claimed that this exception is a good one., In Carpenter v. B. & A. R. R. Co., 97 N. Y. 494, it was sought to charge the defendant with the consequences of the act of a postal clerk in throwing a mail bag from the postal carón to the platform, and it was held that scienter was the gist of the action; that the injury must be one which, in view of all the circumstances, might?have been reasonably anticipated. It was said that the mere act of the postal clerk in throwing off the mail bag at that place without the previous knowledge of the defendant of his intention to do so was not negligence on the part of the defendant. A similar view was taken in Muster v. Railway Co., 61 Wis. 325. See, also, Snow v. Railroad Co., 136 Mass. 552. Under the rule of the Carpenter case, the request was proper, and should have been charged, provided the evidence warranted it, and it was material. The plaintiff claims that the uncontradicted evidence shows that the mail bag had been thrown there previous to the accident. The usual course of passengers in getting onto the train was south from the station door to the passenger car, and the point was whether the mail bag was ever thrown off south of the station door. Two witnesses testified upon this subject on the part of the plaintiff. One testified that he had been at that train nearly every week for two years; had seen the mail bag thrown off south of the entrance prior to the night in question, and within two years quite often; “ not every time I have been along there, but more or less it has been thrown off there; probably thrown off there twenty times within the two years at least calculation; it was thrown off from twelve to fifteen feet south of the waiting room, on the platform— maybe twenty feet sometimes ; it varied according to where the train stopped ; ” that he took no pains to keep track in his mind of the number of times it went off at any particular place. The other witness for the plaintiff testified that before the date in question he had seen the mail bag thrown out onto the platform at different places ; had seen it thrown out as far south as thirty feet from the waiting-room door; could not state how frequently he had seen it thrown off south of that door ; had seen it thrown off there a great many times; could not fix any particular occasion or date. On the part of the defendant there was evidence that the train always stopped far enough north to place the door of the mail car north of the waiting-room door. The conductor of the train testified that the mail bag was never, to his knowledge, before this occasion, thrown off south of the station waiting-room. He also said that, as a general thing, he never paid any attention to where the mail bag was thrown off. One of the trainmen gave similar evidence, and also testified that the trainmen have nothing to do with the mail compartment or the mail. The station agent testified that he never saw the mail bag thrown off south of the waiting-room door on any occasion when the train stopped at that station. Mr. Bryant, whose business it had been for two years and upwards before this accident to carry the mail to and from the station, testified that during this time he had delivered the mail at the mail car, and received mail from it; that prior to this night he received the mail off the car standing north of the entrance to the station; that prior to this night he never saw the bag thrown off this train at a point south of the waiting-room, and that this was the first occasion he knew of its being thrown there. It was the business of Mr. Bryant to be at the station, and look after the mail bag, and he had the means of knowing whether it was left south of the station door. In view of his evidence, it should not be said .that, upon the uncontradicted evidence, the mail bag had been previously thrown off in the way of passengers. It was a question of fact for the jury to pass upon. The request was material, for the court had, in substance, previously charged that the jury might predicate actionable negligence upon the failure of defendant to sufficiently light the depot to enable the plaintiff to avoid the obstacle, without reference to the circumstance whether or not an obstacle of that kind had ever been there before. The request was material in order to obtain the benefit of the doctrine laid down in the Carpenter Case. Upon the evidence it was a question of fact whether the mail bag had ever been, thrown before in the way of passengers, and, if so, whether the defendant, through its proper agents, knew it, or in the exercise of reasonable care ought to have known it If so, the duty arose to use reasonable caution to prevent damage from the danger. Carpenter Case, 97 N. Y. 501. In that event the question might then arise whether the platform was sufficiently lighted to enable the plaintiff, in the exercise of reasonable care, to see and avoid the danger. We are of the opinion that the request of the defendant should have been yielded to, and that it went so far towards the merits of the case, as it was finally submitted to the jury, that we have no right to disregard the error. Many other questions are presented on behalf of the defendant, but it is not important now to consider them. In subsequent stages of the case, if they appear at all, they may appear in different light.

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

All concur.


author: MerwijST, J.

text:
    Vietta Brown an Infant, by her Guardian ad litem, etc., Resp’t, v. City of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    Negligence—Contbibdtoby—Child.
    In passing upon the question of contributory negligence in case of an infant, its age, with all the other circumstances in the case, is to be considered by the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Charles E. Ide, for app’lt; M. E. Driscoll, for resp’t.
   MerwijST, J.

This action is based upon negligence. The plaintiff, on the 28th November, 1891, fell upon the sidewalk at the intersection of Oak and Henderson'streets in’ the city of Syracuse, and the recovery in the case is for the damages sustained from the fall. Henderson street, at that- locality, is comparatively level, and runs east and west. Oak street runs north and south, and as one comes north there is a steep up grade. The accident was at the south-east corner: The occupant of the corner lot had, in the month' of- October previous to the accident, built a new sidewalk on Henderson street, upon, a grade fixed by the city engineer of the defendant. This sidewalk, at the point where it stopped near the margin of the sidewalk of Oak street, was about a foot higher than the walk on Oak street, and the two were, connected by a ^lant of earth about sixteen inches long. The plaintiff was then between eight and nine years old. She came up on the cast side of Oak street, drawing a small sled. When she arrived at the' corner of Henderson street, she turned, and in the effort to step onto the new sidewalk there she-slipped and fell, and was injured. This was in the forenoon. It had been snowing some, and there is evidence tending to show that the snow melted, so that it was muddy at the corner. There is evidence tending to show that the sidewalk at the corner, or the connection between the two, was in a defective or dangerous condition, and had been so for a sufficient length of time to charge the defendant with notice, and that such defective condition caused or contributed to the injury. The main contention of the defendant is that the evidence was not sufficient to justify the submission to the jury of the question cjf contributory negligence. The plaintiff had been over the walk before, and could see the step as she carne 'to it. She is not able to' describe particularly how she came to fall, except that she tried to step up onto the new sidewalk, and her foot slipped,- and she fell. The step, as she says, was quite a big one,and there is other evidence to that effect. There was at the side a slope that she might have taken, but there is evidence that that was muddy. In Bullock v. City of New York, 99 N. Y. 654, it is said that a passenger upon a street has a right to use its sidewalk, although knowing it is in as^j unsafe condition, and, if injured, it is a question for the jury whether he was guilty of any carelessness which contributed to the injury. There, as here, the party made a misstep, and fell. The degree of care required by a person approaching a known dangerous situation is, as a general rule, to be determined by the jury. Palmer v. Dearing, 93 N. Y. 10. An infant, to avoid the imputation of negligence, is bound only to exercise that degree of care which can reasonably be expected of one of its age; and in passing upon thé question of contributory negligence the age of the infant, with all the other circumstances in the case, is to be considered by the jury. Dowling v. N. Y. C. & H. R. Railroad Co., 90 N. Y. 670. What, in case of adults, might, as matter of law, be contributory negligence, may, in case of infants of the age of the plaintiff, present a question of fact for the jury. Baird v. Richardson, 4 St. Rep. 648; Mc Govern v. N. Y. C. & H. R. Railroad Co., 67 N. Y. 417, 422. We think that the question of contributory negligence was properly given to the jury. The degree of intelligence of the plaintiff was an element. She was a witness before the jury, and they therefore, on that subject, had special means of knowledge. They had a right to consider the conduct of the plaintiff at the time of the accident as testified to by her, and the surrounding circumstances.

The defendant further claims that the court erred in refusing to charge that, if the condition of the walk was the result of an error of judgment in determining the plan of construction, then the plaintiff could not recover. It is very evident that the city did not design that the step between the walks should be a permanent matter. The grade upon Oak street was designed to be raised to correspond to that on Henderson street. The question was, as the court charged the jury, whether the connection between the higher and lower grade was unsafe as it was in fact left, and had remained for a month. The court properly held that the rule as to the plan of construction did not apply. Ro sufficient reason is shown for reversing the judgment, and it should be affirmed.

Judgment and order affirmed, with costs.

All concur.


text:
    Head’s Iron Foundry, Resp’t, v. Smith Sanders, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    Justice oe the peace — Jurisdiction.
    Subdivision 5 of § 2869 of the Code does not affect the right, given by subdivision 3, to a resident of a city to sue a non-resident of the county in a town adjoining the city.
    Appeal from a judgment affirming a judgment of the justice’s court in favor of the plaintiff.

      Frank B. Towman, for app’lt; L, M Southworth, for resp’t
   Merwin, J.

The controversy upon this appeal is over the construction of § 2869 of the Code of Civil Procedure, as amended by chapter 74 of the Laws of 1893. That section is as follows: “Sec. 2869. An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: (1) Where the defendant has absconded from his residence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. (2) Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, where all are non-residents thereof, it may be brought before a justice of the town or city, in which the plaintiff, or either of the plaintiffs, or his attorney, is át the time of the commencement of the action. (3) Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. (4) Where it is specially prescribed by law, that a particular action may be brought before a justice of the town, city, county, or district, where an offense was committed, or where property is found. A defendant designated in section two thousand eight hundred and seventy-nine, section two thousand eight hundred and eighty, or section two thousand eight hundred and eighty-one of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. (5) In any town adjoining an incorporated city, no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town.”

The amendment of 1893 consisted in the addition of subdivision 5. Before that was added, the justice, in a case like the present, had jurisdiction under subdivision 3. The question is whether subdivision 5 operates to limit the effect of subdivisions. The defendant claims that it does, while the plaintiff claims that it only operates to limit the first clause, or body, of the section and leaves unimpaired the other- four subdivisions, as granting additional jurisdiction in certain special cases. The first four subdivisions operate to enlarge the jurisdiction of the justice. Bennett v. Weaver, 50 Hun, 111 ; 19 St. Rep. 41. They are not dependent upon the limitations stated in the first or main clause. They relate to special cases. On the other hand, subdivision 5 operates to diminish the jurisdiction of the justice as given in the main clause. It is, in form at least, only applicable as an exception to the cases covered by the main clause. Reading them together, as they should be, it is provided that an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except that in any town adjoining an incorporated city no justice of such town shall have jurisdiction of any action brought by or against a resident of such adjoining city, unless at least one of the parties to the action is a resident of such town. Read in this way, subdivision 5 does not affect or limit the positive, independent, additional powers given in the other subdivisions. It may be said that, if the legislature had intended that subdivision 5 should control the other subdivisions, it would have been so stated. It stands now only as an exception to the main clause, and not as an exception to the other exceptions. The object, apparently, of the amendment of 1893 was to prevent the oppressive exercise of the jurisdiction of justices of adjoining towns as against or in favor of residents of cities. In such cases there might, perhaps, exist improper practices, but that reason for the act would hardly be applicable to the matters covered by the other subdivisions. In fact its application to those subdivisions would lead to results somewhat absurd. By subdivision 2, a nonresident plaintiff could, before the amendment, bring his action anywhere in the county of defendant’s residence. Bird v. Crane, 26 Hun, 531. There is no reason for saying that he cannot bring it against a resident of a city in any town adjoining the city, and still the right be given him to bring his action iir any other place in the county, whether near or distant. So, if the defendant is a nonresident, there is no reason for saying that he cannot be sued before any justice of an adjoining town, and still the right be given to sue him anywhere else in the county.. So of an absconding defendant under subdivision 1. Subdivision 4 refers to special cases under other provisions of law. It cannot be assumed that these were designed to be interfered with. The intent of the legislature is the main thing. Peck v. Baldwin, 58 Hun, 310; 34 St. Rep. 511, and cases cited. A construction that leads to a reasonable and consistent result is to be preferred. In Potter’s Dwarris on Statutes, 208, it is said that, “ when the meaning is ambiguous, where the clauses are confused and contradictory, and the words such as admit of two senses, the court will adopt that construction which will best carry the just and reasonable intention of the legislature into effect.” It is not to be presumed that an absurdity or contradiction was intended. People ex rel. W. F. Ins. Co. v. Davenport, 91 N. Y. 585; Smith, St. Const. § 518. The probable object in a change of the law is to be considered. By the first clause of the section under consideration a general rule is laid down as to the jurisdiction of a justice. Other cases beyond the scope of this general rule are provided for or referred to in the first four additional clauses. In the fifth clause or subdivision there is a limitation or exception to the general rule, and the more natural meaning of the whole section, constructed as it is, is that this exception applies only to the cases covered by the general rule, or to the cases that otherwise would be included in the general rule. This would accomplish the probable object of the amendment, and would not lead to absurdities or inconsistencies, but would leave in full force the positive provisions of the other subdivisions. It should, therefore, I think, be said that the amendment of 1893 did not impair the force of subdivision 3. These views lead to the conclusion that the justice had jurisdiction, and that the judgment should therefore be affirmed.

Judgment affirmed, with costs.

Martin, J., concurs; Hardin, P. J., not voting.