author: Barnard, R. J. :

text:
    WILLIAM E. HALE, as Executor, &c., of BENJAMIN E. HALE, Appellant, v. WILLIAM H. H. ROGERS, Respondent.

      Order for fhe examination of a party — what allegations do not establish the existence of a cause of action — materiality of the testimony — how it must l)é al-leged — Buie 89.
    Upon an application for an order to compel the defendant to appear and be' examined before the trial, the existence of a cause of action is not established by allegations in the affidavit, stating simply that the “action is-brought to recover damages for certain breaches, on the part of defendant, of a contract in writing,”
    Although the affidavit may be made by the attorney the materiality of the testimony of the witness must be alleged, upon his own knowledge, or if it be made upon information, the sources thereof must be given.
    Appeal from an order made at a Special Term, denying am application for an order to- compel the defendant to appear, and ber examined.
    The affidavit, upon which alone the motion was made, was made by the plaintiffs attorney, and stated among other things “That this action was commenced by service of the summons, and complaint on the defendant herein, on November 11, 1879 that this action is brought to recover damages for certain breaches on the part of defendant, of a contract in writing, under the-hands and seals of the above-named Benjamin E. Hale and this-defendant, for the manufacture and sale, according to lists of prices-fixed or to be fixed by said Benjamin E. Hale, of printed wrapping paper; and judgment for a sum of money only is demanded by the-complaint herein; that the said defendant, Rogers, has duly appeared herein by his attorney, Albert Roberts, office-address, 140' Nassau street, New York city; that the said attorney, Roberts, has moved this court, at a Special Term thereof, for an order requiring the complaint herein to be made more definite and certain, by stating the times when, the persons to whom, and the prices at. which the said wrapping paper was sold in violation of the said, contract; . . . . that the testimony of William H. H. Rogers,, the defendant herein, is necessary and material to enable plaintiff to--frame the bill of particulars above referred to, and properly to maintain and prosecute this action, on the ground that the said Rogers has violated the terms of Said contract by selling the said wrapping paper to divers persons, at divers times and places to deponent unknown, at prices less than those fixed by the said Benjamin E. Iiale, in violation of the terms of the said contract; that the said sales were made by said Rogers, or his agents, in the course of defendant’s business, which business was carried on during a series of years and in different parts of the United States, and without any inspection or control, or any right of inspection or control, on the part of the plaintiff or his testator- herein; that the circumstances of time, place, and individuals to whom the said sales were made were not and are not within the knowledge of plaintiff or his testator; that plaintiff or his testator have had no means of discovering, nor have been guilty of :any negligence in ascertaining said circumstances; that said circumstances are exclusively within the personal knowledge of defendant ¡and his agents ; that the only manner in which plaintiff can ascertain the facts and circumstances which are necessary to frame said bill of particulars, and maintain and prosecute this action, is to examine the defendant herein in regard to his personal knowledge of the transactions referred to herein, and the memoranda and ■entries relating thereto, made in the books and notes of account kept by defendant in his business of manufacturing and selling the ■said wrapping paper; that it is the purpose and intention of plaintiff to examine the said defendant, Rogers, as a witness, and to use his examination as evidence on the trial in this action ; that no previous application for this order has been made to this court, or a judge thereof, by or on behalf of the plaintiff herein.

      Morris P. Ferris, for the appellant.

      Albert Roberts, for the respondent.
   Barnard, R. J. :

The order was properly denied. There is no proof of the materiality of the defendant to the prosecution of the action. There is really no proof that a cause of action exists against the defendant. The affidavit is made by the attorney, who asserts that “ this action is brought to recover damages for certain breaches on the part of defendant of a contract in writing . . . . i for the manufacture and sale.....of printed wrapping paper.” This is the only allegation. The existence of a cause of action is not established by an affidavit of what the action is brought for-The proof of materiality of the defendant is quite insuffieientThe attorney for plaintiff makes affidavit that the testimony. of "William H. H. Rogers, the defendant, is necessary and material to enable plaintiff to prove his bill of particulars above referred to, and properly to maintain and prosecute this action on the ground that the said Rogers has violated the terms of said contract by selling the said wrapping paper to divers persons at various times and. places to deponent unknown, at prices less than those fixed by the-said Benjamin E. Hale, in violation of the terms of said contract.” The affidavit may be made by the attorney, but it must show the-materiality of the witness either to the knowledge of the attorney,, or it must show, if made on information, the sources of information upon which the attorney bases the allegation of the materiality of the party. The affidavit does not comply with Rule 89; no fa^ or circumstances are stated which show the examination of the defendant to be material and necessary. The existence of an action, without proof that it rests on a real breach of contract, and an affidavit by the attorney that the defendant’s examination is necessary “ properly to maintain and prosecute ” it, is insufficient to justify the granting of the order asked for.

The order should be affirmed, with costs and disbursements.

"Pykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    ROBERT W. FIELDING, Respondent, v. JOHN LUCAS, Appellant, Impleaded, &c.

      Attachment against firm property — when the attaching creditor is not a proper party to an actionfor a dissolution of ihefirm.

    ‘The complaint in this action alleged that the plaintiff and the defendant Walter were copartners, and that the firm had become insolvent; that the .other defendants had, by collusion with the defendant Walter, commenced .actions against the firm in the Marine Court of the City of New York, in ■which attachments had been issued, under which property of the firm had «been seized; that such attachments were void, for the reason that the firm .¿had a place of business in the city of New York, though both of the .members thereof resided in Kings county. The relief sought was the dis.-.solution. of the firm, the appointing of a receiver, the vacating of the attachment, and also that the said defendants might be restrained from further prosecuting their actions in the Marine Court.

      Meld, that as to the attaching creditor, the complaint did not state facts sufficient to constitute a cause of action, and that it should be dismissed.
    Appeal by the defendant Lucas, from a judgment entered upon an order overruling a demurrer to the complaint.
    The complaint alleged, among other things, that tbe plaintiff and tbe defendant, Jobn F. Walter, Jr., were copartners by tbe firm-name of Walter & Fielding, under an agreement by which tbe period of its continuance was not determined ; that tbe copartnership bad become insolvent; that by collusion with tbe defendant, John F. Waiter, Jr., tbe other defendants bad commenced actions against tbe firm in tbe Marine Court of tbe city of New York; •.that warrants of attachment bad been issued in tbe said actions by justices of tbe Marine Court, one of them at tbe suit of the defendant, Incas, in an action on contract for tbe payment of money only; •that tbe action was commenced by tbe issuing of a summons returnable in six days, and that tbe warrant was issued upon tbe sole ground -that tbe members of tbe said firm of Walter & Fielding were not .■residents of tbe city and county of New York; that, in fact, both ■members thereof were residents of tbe county of Kings, and bad ibeir office and place of business in tbe city and county of New York at' tbe time said warrant was issued. Tbe complaint further ¡alleged that the sheriff had taken possession of the property of the ■firm under the said attachment, and that the said property would be sacrificed, to the great injury of the creditors of the firm, unless the .attachment was vacated. That the said justices of the Marine ■Court had no jurisdiction to issue a warrant of attachment against the said firm as non-residents, so long as the members thereof were residents of the State of New York, and had their office and place ■of business in the city of New York.
    The relief asked for was the dissolution of the copartnership, the appointment of a receiver of its property pendente lite, and ■finally, the distribution of the assets of the firm, and that the said ■warrant of attachment be declared void, and the firm property be released therefrom, and that the defendants be restrained from prosecuting the said actions in the Marine Court, and be required to. prove their claims in this action; and for other and general relief.
    The defendant, Lucas, demurred on the ground that the complaint does not state facts sufficient to constitute a cause of action.

      Drnid Or<mford, for the appellant.

      Joseph A. Shoudy, for the respondent.
   Barnard, P. J.:

The complaint states no legal cause of action against the defend.-ant, Lucas; he is a creditor of the firm of Walter & Fielding. He lives in Brooklyn, and commenced an action against the parties in the Marine Court of the city of New York, to recover his debt. 'The partnership had an office or place of business in the city of New York. The attachment was granted against the property of the firm by the judge of the Marine Court, based upon an affidavit -of the non-residence of the parties. The partnership goods were ¡seized under the attachment of Lucas and others. One of the partners commences an action against his copartner, to settle the partmership affairs, to terminate the partnership, and Lucas is made a party defendant, and relief is asked against him that the attachment, he decreed to be void, and that he prove his claim in this action, and, án the .meantime, pending the action, that he be enjoined from enforcing his attachment, and that a receiver be appointed. As toLncas and other attaching creditors, the remedy at law against their enforcing a void attachment is adequate. The parties can release th& attached property by a bond. They can move to vacate the attachment. They can defend upon the ground that the Marine Court has no jurisdiction of the action. If Lucas has sued in the wrong; court, it is not the province of a court of equity to bring him in as a party to answer an allegation to that effect, and to have his-suit arrested. It is no aid to the complaint to aver that Lucas had bad motives in enforcing his claims in the Marine Court. If he-has a good debt, and proves it in a competent court, no question, will be made whether his design was to harass the parties, or one of" them, or to get an advantage over other creditors.

The judgment should be reversed, with costs to defendant. Lucas.

Dykman, J., concurred; Gilbert, J., not sitting.

Judgment reversed, with costs to defendant Lucas.


text:
    BENJAMIN ANDREWS, Appellant, v. TIMOTHY LONG, Respondent.

      Oosts upon the dismissal of an appeal — must he taxed hy the cleric — cannot be-taxed hy a judge under section 311 of the Oode.

    Upon the dismissal of an appeal from a County Court to the Supreme Court, the costs must be adjusted by the clerk, upon notice, in the usual way, and they cannot be taxed by a judge of the court, under section 311 of the-Code.
    Appeal from an order granting to the respondent herein full-costs on an appeal to the General Term of the Supreme Court, and from an adjustment of the costs by the justice granting the-said order.
    The action was brought by the above-named appellant in one of' the justices’ courts of the city of Brooklyn, to recover of the defendant over $50, and upon the trial a judgment was rendered in favor of the defendant.
    An appeal from the said judgment to the County Court of Kings-county was dismissed, on the ground of the insufficiency of the notice of appeal. From this order an appeal was taken to the General Term of the Supreme Court, where it was affirmed. Ah appeal' was taken from the said . order of affirmance to the Court of Appeals, where a decision was rendered reversing the said order of the-General Term, without costs in the Court of Appeals, and remitting the case to the Supreme Court, that an order might be there entered dismissing the appeal to that court. On February 3,1880, an order was entered at a Special Term of the Supreme Court, making the judgment of the Court of Appeals the judgment of the Supreme Court, and dismissing the appeal from the County Court to the General Term. Thereupon the respondent served a full bill of costs, with notice of adjustment before a Special Term of the Supreme Court, and on February I,1880, an order was made adjusting the costs herein at $68.21, from which order this appeal was taken.

      John Andrews, for the appellant.

      Thomas Vernon, for the respondent.
   Barnard, P. J.:

The dismissal of an appeal from the County Court to the Supreme Court does not make a case of interlocutory or special proceedings which authorizes a judge of this court to tax costs under section 311, Code. When the appeal was dismissed it was the end of the controversy, and if either party was entitled to cost» they were to be adjusted before the clerk, upon notice in the usual way. The rule invoked by the defendant, that where the papers do-not show any specific or other objection to the costs before the taxing officer the taxation will be upheld, has no application to this appeal. It is only when the proper officer taxes the costs that any objection is called for.

The ground of this appeal is that the order establishing any bill by -a .judge of this court was unauthorized. In such a case the order must be reversed, because of the want of power to determine the questions of costs by the judge who made the order.

The order should be reversed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.

Motion to dismiss appeal denied, without costs, and order reversed, with costs and disbursements.


author: Hajrnaed, P. J.:

text:
    PATRICK DEVINE, Appellant, v. THE TARRYTOWN & IRVINGTON UNION GASLIGHT COMPANY, Respondent.

      Master and, servant — when, a .superintendent is to be regarded as the.alter ego of a corporation — what shows him to be an unsleillful and improper person to be so employed.

    'One Hogan, who acted as the superintendent of the defendant, a gas company, .caused a trench to be dug in a street to expose a gas-pipe therein, in order that it might be examined and repaired. The trench having, by mistake, been dug about two and a half feet south of the pipe, Hogan, in order to avoid opening a new trench, ordered the men to undermine the ■earth north from the trench to-the pipe, and to throw the dirt removed upon the top of the earth which covered the excavation over the pipe. The overhanging bank having fallen in and injured the plaintiff, an employee of the defendant, while he was engaged in examining the pipe, he brought this action to recover the damages occasioned thereby.

      Meld, that the questions whether or not Hogan was, as to the act in question, to be regarded as the alter ego of the company, and whether or not the evidence showed him to be an unskillful and improper person to be employed as a superintendent, should have been left to the jury, and that it was error to direct a nonsuit.
    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at- the General Term, after a nonsuit ■ordered at the Circuit.
    Upon the trial evidence was given tending to show that in June, 1877, the gas-pipes of the defendant being in bad condition .all along the line, they employed about a dozen men to oj>en a trench down to the main pipe, for the purpose of exposing the ••same to view and examination. This gang of men were under the control, supervision, and direction, in doing this work, of one John Hogan, who was the foreman or superintendent of the defendant in this work. He hired the men, and directed and controlled them, hut the defendant paid them.
    It was the plaintiff’s duty, as directed by Hogan, to follow in the trench, examine the pipe, and stop the leaks. The superintendent, Hogan, designated the spot or line for the men to dig ■over the pipe. On that day he made a mistake and missed the pipe at a point in the village of Dobbs’ Ferry, Westchester county; he then directed the men to undermine the side of the trench under the road until they should reach the pipe, which was done in his presence and under his direction, to the extent of nearly three feet, leaving a crust or shell over the pipe, upon which was thrown the dirt from the trench and excavation. The plaintiff, who was nearly all the while in a stooping position examining the pipe, had come to the point in the’ trench w’here it was undermined, and was stooping over the pipe with his leg in the excavation when the crust gave way, and the whole mass of earth was precipitated upon him, and broke his leg. The trench was about four feet deep, and two .and a half feet in width, exclusive of the ■undermining, which extended nearly three feet under the side or bank of the trench proper.

      Brown <& Byhmcm, for the appellant.

      G. Frost, for the respondent.
   Hajrnaed, P. J.:

Plaintiff sought by his proof to establish a liability against the company, defendant, upon two grounds.

First, because Hogan was the company itself in respect to the act out of which the action resulted; and, second, because Hogan was unskillful, and not a proper overseer.

As the case stood at the close of the plaintiff’s evidence, when a nonsuit was ordered, the plaintiff was entitled to go to the jury upon both grounds. It was proven that the work was done under' Hogan’s direction; that he was superintendent of defendant; that he dug a trench so as to expose a gas-pipe; that he missed the pip& and went some two and a half feet south of it; that to avoid opening a breach directly over the pipe Hogan directed the men to excavate north from the trench to the pipe, so as to expose it, and to-throw the dirt upon the top o'f the bank over the pipe. The overhanging bank was weakened of its support from below and was loaded with the weight of the dirt taken out. In this state-the plaintiff, whose business it was to examine the pipes, was, while under this overhanging board making such examination, overwhelmed by the falling bank and greatly injured. Under this-proof Hogan was the defendant. (Corcoran v. Holbrook, 59 N. Y., 517.)

It was for the jury to say if the work was negligently done. It. seems plain that it was. It was for the jury to say if Hogan was a. skillful overseer. All evidence tending to show want of skill wasexeluded, except the fact of the manner of digging the trench. The jury might have found on that alone that Hogan was wanting in skill. It was not a matter of law, that plaintiff knew of the danger. The jury might have so found; but they might have found him justified in trusting to the skill of the overseer.

Judgment reversed and new trial granted, costs to abide event.

Gilbert, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment reversed and new trial granted, costs to abide event.


author: Barnard, P. J.: Dykman, J.:

text:
    ALVAN T. PAYNE, Receiver of the property of LOUISA BECKER, a Judgment Debtor, Appellant, v. LOUISA BECKER, Respondent, Impleaded with others.

      Dower — until it is admeasured, the interest of the widow is unassignable — such-interest will not pass to a receiver in supplementary proceedings.

    Before her dower has been assigned to her, a widow has no assignable estate or interest in the lands of her deceased husband, nor has she any estate w interest, therein which will pass to a receiver (appointed in proceedings supplementary to an'execution, issued upon a judgment recovered against her) by a conveyance made by her to him in pursuance of an order of the court by which the receiver was appointed.
    Appeal from a judgment in favor of th'e defendant, entered upon an order sustaining a demurrer to the complaint.
    The complaint alleged that the plaintiff had been duly appointed a receiver in proceedings supplementary to execution issued upon a judgment, recovered against the defendant, Louisa Becker, ■and that she had, in pursuance of an order of the county judge, executed an assignment of all her property to him; that the said defendant was formerly the wife of one George Naumann, who died seized of certain real property at College Point, Queens county, ■consisting of a house and a lot of land; that the other defendants were the heirs-at-law of the said George Naumann, deceased; and ■that the dower of the .defendant, Louisa Becker, in the said real property, had never been assigned to her, or released by her, except to this plaintiff, as receiver, and that a partition or sale was necessary in order to enable the receiver to reach and apply the right of ■dower upon the aforesaid judgment; that an order had been made, granting the said receiver leave to bring this action. The plaintiff then demanded judgment: 1st. Por the admeasurement of the dower ■of Louisa Becker in the said premises; 2d. Por a partition; or, if actual partition cannot be had, then for a sale thereof; and that a gross sum, in lieu of dower, be set off to the plaintiff, as the share of the said Louisa Becker. •
    The defendant demurred to the complaint on the following grounds: 1st. That it did not state facts sufficient to constitute a •cause of action; 2d. That two causes of action were improperly united, one for an admeasurement of dower, and the other for a partition; 3d. That plaintiff was not one of the persons authorized by law to have the defendant’s dower admeasured; 4th. That plaintiff was not authorized to maintain an action for the partition of the said real property; and, 5th. That this plaintiff was not a proper party plaintiff.

      Hoswell W. Keene, for the appellant.
    A widow’s right of dower before it is admeasured, is a thing in action and cannot be sold on execution at law, but in this State it may be reached hy process-in chancery for the benefit of creditors. (TonypJ&ins v. Fonda, é Paige Oh., 448Stewart v. McMartin, 5 Barb. 438; 4 Kent Comm. [8 ed.], 61, in the opinion, stated as the law in 33 Barb., 448. See-3 R. S., 6 ed., 190, § 56 [39], and cases there cited.)

      Samuel B. Caldwell, for the respondent.
    To maintain partition, of lands the plaintiff must have actual or constructive possession of the same, in common with the defendants, and must also show a legal title to the land in the plaintiff and his alleged co-tenants-(Florence v. Hojpleins, 46 N. Y., .182; Howell v. Mills, 7 Bans.,. 193; affirmed, 56 N. Y., 226; Stryleer v. lynch, 11 N. Y. Leg. Obs., 116 ; Sultd/van v. Sulldvan, 66 N. Y., 37-41; Dubois y. Gassidy, 75 N. Y., 299; affirming S. G, 5 N. Y. Weekly Dig., 210.)» No .parties other than the widow, an heir or owner, or the guardian of an heir or owner, have authority to apply for admeasurement, of dower. (2 R. S., 1123, § 26; 3 R. S., 776, § 1, et seg. / &■ Wait Pr., 161, et seg., and cases cited; Wiles v. Peale, 26 N. Y.,. 42, 45; Jacleson v. Aspell, 20 Johns., 411; Ritchie v. Putnam, 13 Wend., 524; Greene y. Putnam, 1 Barb., 500.) Right to dower is a personal right that will not descend to the personal representatives, and which cannot be aliened so as to be enforced by an assignee or vendee. (Gerard Titles, 168, note, and cases cited;. Wiles y. Peale, 26 N. Y., 42, 45 ; Mallory v. Horan, 49 Id., 112 Oox v. Jaggar, 2 Cow., 638; Zahrisleie v. Smith, 13 N. Y.,, 322; McKee v. Judd, 12 Id., 622; Hyslop v. Randall, 11 How. Pr., 97; Di/rvrwny v. Fay, 38 Barb., 18.) No authority exists for the joinder in one complaint of a cause of action for the admeasurement of dower, and one for the partition of real property. (Code Civ. Pro., §§ 484-488; Tanner v. Niles, 1 Barb.,. 560; Wood v. GVwte, 1 Sandf. Ch., 199; Goles v. Goles, 15 Johns.,. 319.) The plaintiff here is not one of the persons authorized by law or entitled to sue or institute proceedings for the admeasurement of the dower of the defendant. [Lawrence v. Miller, 2 N. Y., 252; 5Wait Pr., 161, and cases there cited; Siglar v. Van-Rigger, 10 Wend., 414; Maloney y. Horan, 36 How. Pr., 260, 267 ;.
      Soott v. Howard, 3 Barb., 319 ; 2 Hilliard Am. Law, 13; Gox v. Jaggam, 2 Cow., 638; Yam, Home v. Yam, Name, 23 How. Pr., 217; Moore v. Mayor, <&c., 8 N. Y., 110, 113. Wiles v. Peek, 26 Id., 12-15; Rutherford v. Graham, 1 Hun, 796.) A receiver in supplementary proceedings cannot bring an action for the partition of lands in which the judgment debtor has only an interest. {Scott v. Elmo're, 10 Hun, 68; Dubois v. Gassidy, 5 N. Y. Weekly-Dig., 210; S. G., affirmed, 75 N. Y., 299.) A dowress cannot file a bill for partition, or be sole defendant. {Goles v. Goles, 15 Johns., 80; Woody. GTmte, 1 Sandf. Ch., 199 ; Bradshaw v. Gallagha/n, 5 Johns., 80.) Bight to dower is a mere license, is personal to the licensee, and is neither salable or transferable. {Mendenhall y. KUnck, 51 N. Y., 216; Lawrence v. Miller, 2 Id., 252 j Moore v. Mayor, 8 Id., 110; Mamvim, v. Smith, 16 Id., 575.) The plaintiff acquired no title to or in the real estate by the conveyance from the defendant, made in obedience to the order of the county judge. {Scott v. Elmore, 10 Hun, 68; Ghata/agua Go. Bank v. Risley, 19 N. Y., 375; Moak v. Goates, 33 Barb., 198.)
   Barnard, P. J.:

I think the plaintiff cannot maintain this action. He is a receiver appointed in proceedings supplementary to execution. The' judgment debtor, Louisa Becker, is entitled to dower in her late husband’s lands. Her dower has never been assigned. The plaintiff, as receiver, took no interest in the land. The unassigned dower right is not the subject of sale under execution or of a conveyance. The plaintiff invokes the authority of the case of Tompkins v. Fonda (4 Paige, 118). That ease was a creditor’s bill. • In the action the Chancellor appointed a receiver, with directions for him to apply for an admeasurement of the wife’s dower in her name. The plaintiff in this case rests his claim upon his legal title derived from a conveyance to him as- receiver- of an unassigned dower interest. In legal effect he claims to have derived the right by it to admeasure the dower and to sell the land if no admeasurement can be made, the same as she could do if no receiver was appointed.

In Dubois v. Cassidy (75 N. Y., 299) it is strongly intimated that .a receiver appointed under supplementary proceedings does not obtain such a title as entitles him to ask partition upon it. This doubt is expressed in a case where the judgment debtor had an assignable estate. In the case under consideration the interest was personal in the widow, and the assignee could not dispossess the heir at law.

The judgment should be affirmed, with costs.

Dykman, J.:

It is provided hy our Revised Statutes that a widow shall he endowed of the third-part of all the lands whereof her husband was .seized of an estate of inheritance at any time during the marriage. (1 R. S., 740.) The statutory provision is but a confirmation of the common law, and under it the widow has a right, resting in action merely. She has no estate in the land, and, after her quarantine, has no right even to possession, for the obvious reason that, until assignment had, it cannot be known what she will have. As it is a right, she may release, but cannot convey or'assign it, nor give to another the right to maintain an action for its recovery, because, until its assignment, she has no estate in the land. She is not a tenant in common with the heirs, and cannot maintain partition. (Green v. Putnam, 1 Barb., 506; Siglar v. Van Riper, 10 Wend., 414; Yates v. Paddock, 10 Wend., 533; Ritchie v. Putnam, 13 Wend., 526.) These .plain principles dispose of this case adversely to the plaintiff’s action, for our statute only authorizes a partition where several persons hold and are in possession of lands as joint -tenants, or as tenants in common only. (2 R. S., 317, § 1.) The plaintiff claims to maintain this action as the assignee of the right -of dower of a widow before admeasurement; and when, as we have seen, she could not be in possession, neither was she a joint tenant, or a tenant in common with the heirs. As she was not herself in a situation to institute partition, she could not clothe the plaintiff with greater rights than she herself had, as the dower of the widow rested in mere right until admeasurement. She could only release it, and could not assign it, and the plaintiff took nothing by her assignment to him. It matters not that such assignment was made under an order of the court. Such order could give no ■vitality to tbat wliicb. without it had no. existence. The widow had no estate in the laud and could therefore give none to the plaintiff, eveu under the order of the court.

There are very grave doubts whether a receiver in supplemeut.ary proceedings obtains auy title to real estate that will enable him to maintain au action for partition. (Dubois v. Cassidy, 75 N. Y., 299.) We do not decide the question in this case, as our decision rests satisfactorily upon the ground first stated.

The order appealed from must be affirmed, with costs and disbursements.

Present — Barnard, P. J., and Dtkman, J.; Gilbert, J., not Bitting.

Judgment affirmed, with costs.


author:
Gilbert, J.:
      Barnard, P. J.,

text:
    JOHN LOFTUS, Administrator, &c., Respondent, v. THE UNION FERRY COMPANY OF BROOKLYN, Appellant.

      Ferry company — duty of, as to guarding against accidents to its passengers.

    'Ferry companies are not insurers of the absolute safety of their passengers, either while they are coming upon or are leaving the boat; nor are they bound to guard against possible accidents, which could not reasonably be foreseen.
    'The defendant., a ferry company, landed its passengers by means of a float or bridge, which served to connect the boat with the shore. Between this float and the piers on each side of it was a space of from eight to fourteen inches, to admit of its rise and fall with the tide, and of the lateral swaying caused by its being struck by the boat. Upon the sides, near the piers, where the passengers came on and off the boat, a square beam eight inches in height ran along the flooring, upon which rested a circular beam, starting from the floor at each end of the bridge, and rising at the center, to a height •of about five feet; about twenty-two inches from the floor beam, a light rail ran horizontally from one part of the circular beam to the other. The plaintiff’s intestate, a boy of between five and six years of age, while leaving the ferry-boat in company with his mother, fell through an opening in. the guards upon the side of the bridge, and was drowned. There was nothing unusual in the construction of the bridge, and it had been used for a long time for the purpose of landing passengers, without any accident such as that which happened to the intestate having occurred.

      Held, that the evidence failed to show any negligence on the part of the defendant which would justify a recovery by the plaintiff. (Barnard, P. J.r dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict, 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 for the negligent killing of the plaintiff’s intestate (his son), James M. Loftus, a boy aged six years and four months.
    On the evening of July 3, 1878, the deceased, accompanied by his mother, who was carrying an infant in her arms, and also by Mrs. Ann Madden and her four children, whose ages ranged from fourteen years down, took passage upon defendant’s ferry boat at Hamilton avenue, Brooklyn. The boat arrived at New York at. twenty minutes to nine o’clock, and Mrs. Loftus and her party,, having waited until the boat was securely fastened to the bridge and the chains were let down, passed from the boat to the bridge-The testimony is conflicting as to the order in which they landed — - Mrs. Madden saying that Mrs. Loftus was in advance, the children next, and'that she brought up the rear; while Mrs. Loftus says the children were in advance and both ladies were in the rear. Evidence was given by the plaintiff tending to show that as the party were proceeding up the bridge two boys, not of tiffs party, came-running rapidly off the boat, yelling loudly; that the little boy, Loftus, hearing the noise of rapid running and the yelling behind him, dodged to the right to avoid it, and in so doing lost dis-balance and fell off the side of the bridge into the water, and was-drowned. The defendants had provided a floating bridge upon which to land their passengers. This bridge was about thirty-five-feet in length. It was set in between two stationary piers, and was fastened at one end to the dock. The bridge did not fill the entire space between the docks, and there was an opening on each side, beginning at the land end and growing wider towards the water end of tire bridge. About half way up the bridge, where the deceased fell in, this opening was about fourteen inches in width. This opening at tbe side was to allow tbe bridge to sway when struck by an incoming boat, to lessen the shock and the wear and tear, upon the boat and landing, and to allow it to rise and fall with the tide. The bridge had a team way in the center and a way for foot passengers at each side. The guards at each side of the bridge were constructed as follows: a square beam eight inches in height ran along the floor; a circular beam, commencing at the floor at one end of the bridge and rising to about five feet in the center and dropping again to the floor at the other end, pressed this beam on the floor. About twenty-two inches above the top of the floor beam there was a light rail running horizontally from one part of the circular-beam to the other. The circular beam was supported by upright, beams six feet apart.

      Benjamin D. Silliman, for the appellant.

      Barrett & Patterson, for the respondent.
    The defendants were bound to exercise the utmost care and skill, which human ingenuity could suggest, to preserve their passengers from harm. {Hegemon v. Western JR. R., 13 N. Y., 9 ; Brown v. Central R. R., 31 Id., 101; Brown v. Central R. R., 18 Id., 108 ; Maverick v. Eighth Avernas R. R., 36 Id., 378; Angelí on Carriers, § 537, a.) It was their duty to provide a safe • landing. . (Weston v. Hew York Elevated R. R., 73 N. Y., 595; Hoffman■ v. New York Central <& Hudson Ri/ver R. R., 75 Id., 606; Halbert v. New York Central R. R., 10 Id., 115.) There being at the* side of the passage-way for foot passengers upon this bridge an opening through which passengers might fall into the water and be-drowned, it was the duty of defendant to sufficiently protect such opening by a safeguard or fence. {¡Shearman and Redf. on Neg.„ §•508; Beck v. Carter, 68 N. Y.,283; Rudway v. Briggs, 37 Id.„ 256; Pickard v. Smith, 100 E. C. L., 470 [10 Com. B., N. S.] * Chapman v. Rothwell, 96 E. C. L., 168 [EL, Bl. and El.]; Barnes■ v. Ward, 67 E. C. L., 392 [9 Man., Gr. & Scott] ; Clerk v. Union. Ferry Co., 35 N. Y., 485 ; Wykoff v. Queens County E'erry Co.,, 25 Id., 32; Chicago v. Major, 18 III., 338; Johnson v. Bmmer, 61 Penn. St., 58 ; Indermauer v. Dames, L. R., 1 C. P., 271; S. 6L. affirmed, L. R., 2 C. P., 311; Galdwell v. New Jersey S. S. Co., 48 N. Y., 282; Mulla/ney v. Spence, 15 Abb. Pr. N. S., 318; Hoffman v. New York Central B. B., 65 N. Y., 605; Brown v. Mohawk B. B., Iiow. App. Oases, 52; HuTbert v. New York Central B. B., 40 N. Y., 145; Simson v. Imd. G. 0. Go., 8 L. R., C. P., 390; Lcvx y. Darlington, L. R., 5 Exch., 28; Stratton y. Staples, 59 Me., 94; Broclmap y. Lascalla, 1 Edm., 138; leishman y. L. B. &S. 0. Bailway, 23 L. T., N. S., 712; cited in Fisher’s Digest, 1871, p. 242; Ernst y. Hudson Bi/oer B. B. Go, 35 N. Y., 9.) The question here is not whether the guard was sufficient as to an adult, but whether it was adequate protection to a little child between two and three feet in height, and of corresponding weakness. (Sheridan v. B. <& N. B. B., 37 N. Y., 39; 2 Wait Ac. •& Def., 96, and cases; Smith y. Wilson, 31 How. Pr., 272.) 'The defendants are liable absolutely for all injtiries to any person resulting from the maintenance of the dangerous opening adjacent' to the traveled way. A person making an excavation upon his own land contiguous or adjacent to a public highway, is absolutely liable to all persons injured, thereby, irrespective of negligence, on the ground that such an excavation is a nuisance. ' (Temperance HJll y. Giles, 33 N. J. Law, 260; Barnes v. Ward, 6 Man., Gr. & Scott, 9 Com. B., 67 E. O. L., 418; S. 0., 14 Jur., 334; Copland v. Hardi/ngha/m, 3 Camp., 398; Jarvis v. Dean, 3 Bingh. [11 E. C. L.], 447; S. O. affirmed, 11 J. B. Moore, 354. See Beck v. ■Garter, 16 N. Y., 283 ; Sexton v. Zett, 44 Id., 430; Greed v. Hartmann, 29 Id., 591.) A ferry is a public highway, subject only to the payment of the toll. (Thompson on Highways, and cases cited, P-14-)
   Gilbert, J.:

We are of opinion that no proof of negligence on the part of the defendant was given. Ferry conqaanies are not insurers of the absolute safety of passengers, either while coming on board the ferryboats, or while going ashore therefrom, nor are they bound to guard against possible accidents which could not reasonably be foreseen. Their duty is to furnish accommodations, for the receiving and landing of passengers which are reasonably sufficient for that purpose, and for the protection of persons using the means provided, in a reasonable way. (Blackman v. London, &c., R. Co., 17 W. B., 769; Rigg v. Manchester, &c., R. Co., 12 Jur. N. S., 525; Cornman v. Eastern Counties R. Co., 4 H. & N., 781; Crafter v. Metropolitan R. Co., L. R., 1 C. P., 300; Dougan v. Champlain Tr. C., 56 N. Y., 1; Crocheron v. North Shore, &c. Ferry Co., Id., 656, reversing 1 N. Y. Sup’m Ct. [T. & C.] 446; Cleveland v. New Jersey Steamboat Co., 68 N. Y., 306.) It is not enough, to make out a case of negligence, to suggest that additional precautions would have prevented the accident. It is always quite easy to do that after an accident lias happened. But the question is, whether a prudent person, under all the circumstances involved, might reasonably be expected to foresee that the accident, which happened might occur. We have no hesitation in giving a negative answer to that question in this case. Such an accident as-that by which the deceased lost his life was quite beyond the scope-of probability.

The deceased, a boy seven years old, in some way which is not' satisfactorily explained, got through a space of from twenty to twenty-two inches wide in the railing of the landing float or bridge, fell into the water and was drowned. There was nothing ruiusual in the construction of the bridge or float. Such a bridge or float had been used for the purpose of landing passengers for a very long period, and had hitherto proved adequate and safe. No> accident like that which happened to the deceased had ever occurred, although the number of passengers landed from the defendant’s boats in some years exceeded forty millions. Surely the mere occurrence of an accident, such as had not before been known to the defendant, and which happened in such an extraordinary manner, is not evidence of negligence. As the cases cited show, the defendant was not bound to foresee and provide against such a¡ casualty. We have examined the authorities to which we hav& been referred by the learned counsel for the plaintiff, but none-of them conflict with the principles above stated.

Without considering the question of contributory negligence, we think the judgment and order denying a new trial should be rerversed, and a new trial granted, with costs to abide the event.

Barnard, P. J.,

dissenting :

It was part of the defendant’s duty as a common carrier of passengers to provide a safe landing-place for them. In the case under consideration the defendant provided a bridge which rose and fell with the tide. Between the bridge and the stationary dock was a space sufficiently large to permit a child to get through, and the opening between the bridge and stationary dock was sufficiently large to permit a child to fall in the river. The protection along the Bridge was insufficient. It was simply an outline. The plaintiff’s ¡son, a small boy of six and a half years of age, coming off from the Boat, is jostled or shoved or escaped through the openings and was •drowned. The bridge was not built to protect children of that age. .In view of the crowd of passengers traveling by defendant’s boats, .including children of all ages, and of the rush from the boat, it ¡should have been -anticipated that an opening, in the sides of the Bridge was dangerous. The motion for a nonsuit was properly denied. There is nothing in the evidence calling for a decision that as matter of law the deceased boy was guilty of contributory negligence. It was a question for the jury. The age of the boy was proven, and his attendants and companions; how the accident occurred, and where, in reference to the bridge, and what was its cause. I do not see any omission of duty, either upon the part of' the boy <or his mother, in whose charge he was.

The judgment should be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


author: Hilbert, J.:

text:
    JOHN SWENARTON and another, Appellants, v. MARY HANCOCK and others, Respondents.

      Will — when all witnesses to it, they being non-residents, need, not be examined— 1837, ch. 460, §§ 10, 17.
    Upon an application for the admission to probate of a will and three codicils thereto, it appeared that both of the attesting witnesses to the first codicil resided in the State of New Jersey, and that the codicil was there executed. One of the witnesses was called and testified to the formal execution of such codicil. While the other witness thereto, who was present in court, was being examined as to other matters, the counsel for the contestants, none of whom were infants, admitted the formal execution of the said codicil, and that the signature of the witness thereto was in his handwriting and was made by him.

      Held, that the statutory requirement that all the witnesses to a will must be examined, is subject to the qualification that they are all residents of this State, and that under the circumstances of this case the proof of the due execution of the codicil by the witness who testified to its execution was sufficient to require it to be admitted to probate.
    iProbate of two codicils to a will refused, on the ground that they were not the free or voluntary act of the testator, but were procured by fraudulent misrepresentations.
    Appeal from a decree of the Surrogate of Rockland county admitting to probate tbe will of John Hancock, deceased, and rejecting three alleged codicils thereto.
    The first codicil was rejected on the ground that the proof of its •execution was insufficient; the other two on the ground that they were procured through fraud and undue influence.
    Both the witnesses to the first codicil resided in New Jersey. •One of them was called and testified to its formal execution, while -the other witness thereto was present in court, being examined as to other matters. Tlie counsel for the contestants; none of whom ■were infants, admitted the formal execution of the codicil, that the ^signature of the witness thereto was in his handwriting and was .made by bim.

      Will. Mwrm, for the appellants.

      Ed/wi/n G. Ea/ois, for the respondent, A. S. Walsh.

      W. H. Taggwrd, for the respondent, John B. Locke, executor..

      Amos G. Hull, for the respondent, James M. Allen.
   Hilbert, J.:

The proof of the due execution of the will admitted to probate, rand of tlie competency of the testator to do tlie act at tlie timo the will was executed, was sufficient. Indeed, no contest respecting tbe validity of that will lias been made before us, unless the effort to •■show that the testator was non compos mentis should be so regarded.

Only one witness to tlie first codicil was examined, but we think any defect in the proof thereof was cured by the admission of the-due execution thereof made by the contestants, and adopted by the-proponents and the Surrogate on the hearing before the latter. The attesting witnesses to. this codicil resided in New Jersey, and the codicil was executed in that State. The witness to-this codicil, who was not examined, was before the Surrogate, and testified as to other matters, but his examination as a subscribing witness appears to have been waived by the proponents, and contestants, and an admission of the due execution of the codicil to have been taken in lieu of such examination. There being-no infants in the case, I see no objection to giving that effect to the admission of the parties. Tiro statutory requirement that all the-witnesses to a will must be examined seems to be subject to the qualification that they are residents of this State. (L. 1837, ch. 460, §§ 10, 17.) The sections cited must be read together. Onecontaius a direction, the other a prohibition. The former directs, the examination of two at least of the witnesses, if so many are-living in this State. The latter prohibits the admission of a will to probate until the witnesses to the same residing within this State, &c., &c., shall have been examined, &e., as hereinbefore prescribed.

The substitute provided for the examination of non-resident witnesses is an inquiry by the Surrogate into the facts and circumstances, connected with the execution of the will. Under the circumstgncesof this case, we think the proof of the due execution of the first codicil was sufficient. (Rediield L. & F., 96, el seq., and cases cited.)

Witli respect to the second and third codicils, the testimony warrants the conclusion at which the Surrogate arrived, namely : that they were not the spontaneous or free or voluntary acts of the testator, But that, on the contrary, they were procured by misrepresentation and deception, persistently practiced from time to time by the proponent and by members of his family. The will was made on. January 2,1874. Its conformity with the intentions of the testator, repeatedly declared both before and after it was made, was satisfactoiv ily proved. The first codicil was executed on January 30,1874. Ey the will the testator made generous bequests to his nephew Walsh, to-his friend Allen, to 'Mrs. Thatcher, with whom he had boarded dur^ing a long period, and to her daughter. Towards these persons the testator had always manifested an affectionate regard. He made Walsh and Allen executors of his will. The only changes wrought-by the first codicil were gifts of legacies of $5,000 to his nephew,. Augustus Swenarton, a son of the proponent, and the testator’s sister Maria. At this time the testator was about seventy-four years of age. He was afflicted with diabetes, and had been smitten with one or' more strokes of apoplexy. In February, 1814, he was stricken by paralysis. In April following he became an inmate of the house.; of the proponent, who is the husband of a sister of the testator.. It is quite apparent that at this time the testator was very feeble,, and shortly afterwards his condition became, and thenceforward until his death continued to be, that of a person who was rapidly sinking under the weight of years and disease into helpless decrepitude and decay. We are inclined to the opinion that the attack made upon the testamentary capacity of the testator was unjust, and that it was a failure. The testimony has impressed us with, the belief that he retained sufficient testamentary capacity until a. few days before his death. We do not deem it necessary to make; a positive decision upon that subject. It is certain, however, that-his enfeebled condition exposed him to artifice and deception, and rendered him credulous and dependent, while, at the same time, it incapacitated him from making the requisite effort to detect falsehood' and fraud. He remained in the family of the proponent-until his death in September, 1814. The evidence tends very strongly to prove that the testator’s stay there was opposed to-his wishes, and that it was the result of compulsion on the part, of the proponent and members of his family. The second' codicil was executed on April 14, and the third one on July 1, 1814. The history of those codicils, as presented by the--evidence, reveals a course of misrepresentation and deception, on the part of the proponent and others, who, from time to-time, surrounded the testator, whereby a belief was instilled into-his mind that his will was not a legal instrument, and that his former friends, Walsh, Allen and Mrs. Thatcher, instead of being-worthy of his regard, were hypocrites and rogues. Statements off facts strongly prejudicial to the characters of those persons were; made to him, some of wliicli were untrue, and others of which, though not false, were perverted so as to become means of deceiving the testator as much as if they had been untrue. I refer now to the charge brought against Mr. Walsh of exacting bonuses from borrowers .upon the extension of loans made to them by the testator. All that Walsh did in this respect was done at the testator’s request, for his benefit, and, as he testified, in accordance with the •testator’s practice while in health. As to the practice of the testator there is corroborative evidence. And yet the acts of Walsh, in ■exacting or demanding bonuses in two or three instances, were so used by the proponent as to infuse into the testator’s mind a distrust of Walsh’s integrity, and, in connection with other statements which were untrue, to reverse the testator’s feelings towards him. That the principal changes of the will, wrought by the second and third codicils, were produced by the misconduct of the proponent and others, to which allusion has been made, is evident ■as well from the attendant circumstances as from declarations made by the testator to the draftsman of those codicils and to other persons. The evidence leaves little room for doubt that the acts of the proponent and his confederates in respect to the second and third codicils were fraudulent, and originated in motives of personal benefit to themselves. They instigated the making of those ■codicils; they participated in the acts which led to the preparation, and formal execution of them. Most of the changes, made by 'those codicils in the will, were suggested by them. They detained the testator at the dwelling of the proponent, under circumstances which excluded his accustomed intercourse with those whom he had before regarded as his friends, and upon whom he had bestowed his confidence and affection, and while in that situation they plied him with the false and deceptive statements referred to. The ■codicils themselves speak upon this subject — res ipsa loquitur— .and if further evidence respecting the motive which actuated the proponent were wanting, it would be found in his conduct whereby he supplanted Walsh as the confidential agent of the testator, :and obtained possession of the papers and- valuables of the testator, and of powers of attorney by which a large part of the testator’s property was committed to his control and disposition. The evidence in behalf of the proponent does not afford a satisfactory-explanation of the misconduct thus imputed to him and others associated with him. In the absence of such countervailing evidence the inference that the second and third codicils were procured by fraud and. undue influence on their part, is a logical necessity. Direct or positive proof on such a subject is not essential in order to invalidate testamentary dispositions. The effect of the testimony given by the contestants, was to shift the burden of proof upon the proponent, and to require him to satisfy the Surrogate that the second and third codicils were the free and spontaneous acts of the testator. As already stated, the evidence on the part of the proponent, we think, was insufficient for that purpose. A review of the adjudged cases on this subject is unnecessary. It will be sufficient to refer to two or three of them. (Boyse v. Bossborough, 6 H. L. Ca., 2, 47; Shailer v. Bumstead, 99 Mass. 112; Tyler v. Gardiner, 35 N. Y., 594.)

The decree of the Surrogate respecting the first codicil must be reversed, and the proceedings must be remitted to him, with a direction to admit that codicil to probate. In all other respects the decree is affirmed without costs, except that the disbursements of the executors on this appeal must be paid out of the estate.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Ordered accordingly.


author: Gilbert, J.:

text:
    JOHN SWENARTON and JOHN W. HUTTON, Appellants, v. MARY HANCOCK, CHARLES M. CARPENTER and others, Respondents.

      Power of the Supreme Court to direct money to le paid to cm executor, to defray the expenses of an appeal from a decree admitting the will to prolate.

    Where a contest lias arisen as to tlio validity of a will and an appeal has been taken from a decree of the surrogate, admitting the will to probate, but rejecting the codicils thereto, pending which the funds of the estate have, by the consent of the parties, been deposited with him, the Supreme Court has no power to make an order directing the surrogate to pay over to the-executors or their counsel a specified sum of money to be used and expended by them, in the prosecution of the suits relating to the estate.
    Appeal from an order made at Special Term, directing the Surrogate of Rockland county to pay to the executors of John Hancock, deceased, the sum of $3,000, to be used to prosecute suits relating to the estate.
    The petition of James M. Allen and A. Stewart Walsh, two of the executors, upon which the order was granted stated, among other things : “ That on the twelfth day of September, 1874, the said John Hancock died, at the Town of Olarkstown, leaving a last will, bearing date the second day of January, 1874, which will has been duly admitted to probate by the Surrogate of the county of Rockland. Said Hancock left an estate of over one hundred and thirty thousand dollars, consisting of personal property, composed of cash, bonds and mortgages, and dividend-paying stocks. That subsequent to the making of said will, in January, 1874, it was alleged that certain codicils were made to said will, materially changing the disposition of his property.
    “ That your petitioners were named as executors and legatees in said will, and as such executors deemed it their duty to contest the validity of such codicils, and did, in conjunction with others affected by the same, contest such codicils, on the ground of fraud and undue influence; whereupon the persons alleged to have fraudulently procured the making of the codicils and interested in sustaining the same commenced litigation, and protracted the same from the Fall of 1874 until the Fall of 1879......

      “ That letters testamentary, under chapter 603 of the Laws of 1871, have been duly issued to your petitioners by the Surrogate of the county of Rockland, to which we beg leave to refer, and make a part of this petition. That your petitioners are advised and believe that during the said times or shortly after the making of the last alleged‘codicils, and while the mind of John Hancock, the decedent, was being operated upon by the frauds and undue influence which the said Surrogate has deemed and decreed to be sufficient, to invalidate said codicils, the said decedent was induced by fraud and circumvention to deliver over into the hands of the persons having him iu charge over $40,000 of personal property, which property the then custodians now claim to be gifts, which alleged gifts your petitioners are advised, are invalid, and the property claimed thereunder actually and in good faith belongs to the estate of the decedent.
    “ That wliile said contest was going on, and before letters testamentary were issued to your petitioners, some of the heirs at law .and next of kin of the decedent commenced an action in the Supreme Court to set aside such alleged gifts, and to recover said property into the estate for final distribution under said will, and have sought in their complaint to have the executors of the estate named in the will substituted for said next of kin as plaintiffs therein, as soon as letters should issue to such executors. That since the issuing of said letters, they are now taking steps to perfect such substitution. That while such contest respecting such gifts was pending, the funds and.property belonging to the estate were paid over to the Surrogate, and retained in his custody until the final termination of this controversy, subject to such claims for expenses and just allowances as the courts might decree. That there are now in the hands of said Surrogate, belonging to the said estate, as your petitioners are informed and believe, the sum of more than $75,000. That an appeal has been taken from the decree of the Surrogate by John Swenarton and John ~W. Hutton, who claim to be legatees under the aforesaid invalid codicils.
    “ That your petitioners have appeared and answered the petition ■of appeal by their aforesaid counsel. That to pay the expense of protecting this estate and employing counsel therefor, is a burden which your petitioners cannot well afford to pay from their individual means. They are advised and believe that such expenses are a proper charge upon the estate.
    “ Therefore your petitioners pray this honorable court that an ■order may be entered directing a moderate and temporary allowance from the funds of the estate now in the hands of the Surrogate, to be drawn therefrom by your petitioners with which to pay ■expenses and counsel fees, leaving the question of final and full allo-wances to be adjusted and fixed upon the final determination of the appeal heroin.”
    The order directed the Surrogate to “pay out of any funds in his hands belonging to the estate of the said decedent, the sum of three thousand dollars to Alexander Stewart Walsh, James M. Allen and John Bell Locke, executors, or to Amos G. Hull, Edwin G-Davis and William IT. Taggard, the proctors and counsel of said executors, that sum being fixed as the amount that the said executors may spend and use from the estate of said John Hancock, deceased, to prosecute suits mentioned in the petition as necessity may require.”

      Mem <& Pa/rsons, Andrew Fallon, and Walter H Simpe, for the, appellants.

      Amos G. Hull, Edwin G. Da/ois, and William H Taggczrd, for the respondents.
   Gilbert, J.:

We have not been able to find any precedent for the order appealed from, and we are clearly of the opinion that it is void for lack of power in the court to make it. This court certainly had no^ power to make an allowance by way of costs of the proceedings in the Surrogate’s Court. After the appeal this court acquired jurisdiction to make an extra allowance of costs only after judgment. Assuming that it was the duty of the executors to resist the appeal from the surrogate’s decree, they were bound to defray the expenses incident to the proceedings, and to rely for reimbursement upon the settlement of their accounts as executors. Upon such settlement the' beneficiaries under the will are entitled to be heard. If the executors cannot administer thq trust devolved upon them, either because they have not means sufficient to defray the expenses thereof, or for any other cause, they should renounce the office. Neither the surrogate nor this court has power to make an appropriation from the property left by the deceased in anticipation of the expenses of administering the same. Such property belongs to the beneficiaries under his-will, and they cannot be deprived of any part of it, except by due process of law. The disposition of such property belongs to the. executors, under their official liability. ' For such disposition they are liable to account. The law has provided the manner of such accounting. It must-be done after, and not before, they have expended’ moneys, and after the beneficiaries have been duly cited to attend upon the settlement of their accounts. The effect of the order appealed from, if sustained, would be to reverse this order of proceeding, and to give legal sanction to items of expenditure by" the executors without affording their cestuis que trust an opportunity to be heard respecting the same. That cannot be lawfully done.

The order must be reversed, with $10 costs and disbursements,, and restitution should be awarded.

Present — Barnard, P. J., G-ilbert and Dykman, JJ.

Ordered accordingly,


author:
Barnard, P. J.:
      .Dykman, J. :

text:
    JACOB CARPENTER, Appellant, v. THE MANHATTAN LIFE INSURANCE COMPANY, Respondent.

      Damages — in an action for the conversion of property are not affected Try an unaccepted tender made before the commencement of the action.

    In an action for the conversion of personal property, the right of the plaintiff to recover the full value of the property is not affected by proof of an unaccepted tender of the property made by the defendant after the conversion, and before the commencement of the action. (Gilbert, J., dissenting.)
    Appeal from a judgment in favor of the chifendan^f entered upon the verdict of a jury, and from an order denying a motion for a. new trial, made upon tbe minutes of the justice before whom the action was tried.
    On June 16, 1879, under a decree in foreclosure in its favor, the defendant purchased the real estate mentioned in the pleadings, and on which were the plants and flower-pots described in the complaint in this action. At the time of the sale the plaintiff was the owner and in possession of the said premises, and of the plants and pots referred to. It was agreed that the plants should be allowed to remain in the green-house until the weather became mild and it was-convenient to remove them. On March 8, 1879, Mr. H. B. Stokes,, the assistant secretary of the company, wrote, to the plaintiff, requiring him to take the plants away. The plaintiff replied by letter that he refused to take them away, and would hold the company responsible for any damage resulting from their removal, claiming ■that there was an agreement that they should remain until warm weather. They remained on the company’s premises until Saturday, May 17, 1879, when the plaintiff, without uotice to the company that he desired them, went with a man, and demanded them from the gar•■dener in charge of the jjlaoe, wtho, acting under the orders of the company, refused to deliver them to him. On the Monday following, having received instructions to that effect from the company, the gardener went to the plaintiff, and told him to come and get the plants. He refused to take them, and immediately brought this .action for the conversion of the plants.

      Miles SWood, for the appellant.

      Marrim, J Keogh, for the respondent.
   Barnard, P. J.:

This is a hard action. The plaintiff was the owner of some hothouse plants which remained upon defendant’s premises by its assent, and to accommodate the plaintiff. The plaintiff was notified to remove them, and he delayed doing so for a considerable time but when he did endeavor to get them, the defendant refused to •deliver them to the plaintiff. This was on Saturday, May 17,1879. On Monday following, the defendant told the plaintiff he might have the plants,, ' -On Tuesday, May 20, 1879, this suit was commenced. The-'court.chaa'ged the jury that the plaintiff was entitled so recover the difference between the market value of the property on Saturday and on Monday, when they were tendered back. "W e think in this charge the court erred. The conversion was made out by a refusal to deliver the property on Saturday. The plaintiff’s right of action was then complete, and could not be destroyed without his consent. If, after a conversion, the goods are received back, •either before or after suit brought, it goes to mitigate the damages, iS$5?*Eo further. A party whose goods are converted, cannot be forced to receive them back. (Livermore v. Northrup, 44 N. Y., 107; Reynolds v. Shuler, 5 Cow., 323.) The judgment should therefore be reversed and a new trial granted, costs to abide event.

.Dykman, J. :

I concur with, reluctance.

Gilbert, J., dissented.

Judgment and order denying new trial reversed and new trial ¡granted; costs to abide event.


author: Gilbert, J. :

text:
    JACOB CARPENTER, Respondent, v. THE MANHATTAN LIFE INSURANCE COMPANY, Appellant.

      «Counter-claim — what may be pleaded as such, as being ‘ ‘ connected with the subject of the action ” — Gode of Oivil Procedure, § 501- — -as to whether a reply to a counter-claim admits it to. be allotoable as such.

    Tn an action by tbe plaintiff, to recover damages for an alleged conversion of certain wood by the defendant, the latter alleged, as a counter-claim, that the wood in controversy was the product of trees grown upon certain lands upon which it had a mortgage ; that the plaintiff, being a junior, mortgagee, in possession, and knowing that the lands were an insufficient security for the payment of the defendant’s mortgage, and that the mortgagor was insolvent, wrongfully and fraudulently, and with intent to ■cheat and defraud the defendant, and to impair the security of its mortgage, committed waste on the said premises, by cutting the said wood, to the defendant’s damage of $500.

      Meld, that the cause of action set up in the counter-claim was “connected with the subject of the action,” and that it might be pleaded as a counterclaim, though the action was for a tort.

      'Quwre, as to whether or not a plaintiff, by replying to a counter-claim, waives his right to insist that the matters therein set up are not the proper subject of a counter-claim.
    Appeal from a judgment in favor of tbe plaintiff, entered upon ■tbe trial of tbis action by tbe court without a jury.
    Tbe action was brought to recover damages for an alleged conversion by tbe defendant of certain wood belonging to tbe plaintiff. 'The defendant, after denying tbe plaintiff’s ownership, set up the following counter-claim:
    “ First. — That on tbe 28th day of September, 1811, one George ~W. Markham, then tbe owner in fee of the premises mentioned in the complaint, executed and delivered to the defendant a bond, and with Emily, his wife, a mortgage on the said premises to secure the-payment to the defendant of the sum of $45,000, with interest, which mortgage was recorded in Westchester County Register’s-office, in Liber 551 of Mortgages, page 361; that thereafter in default of payment of the said sum of $45,000, with interest as a-fore-said, the defendant foreclosed the said mortgage, and that the said premises were sold under judgment and decree in foreclosure in. favor of the defendant in this action on the 16th day of January,, 1879, by a referee duly appointed by the 'court for that purpose, and that at such sale this defendant became the purchaser of said premises, and obtained on said day from said referee a deed of' conveyance of the same, and was on the 23d day of January, 1879,. in lawful possession of the same as the owner thereof; that over and above the price paid for the said premises on such sale by the-defendant there was a deficiency, accrued interest and costs of foreclosure of said mortgage, amounting to the sum of $17,128.65, for-which sum judgment was entered and docketed against the said George W. Markham, one of the defendants in the action of foreclosure, which remains unpaid.

      “ Second. — And this defendant further answering alleges on information and belief, that the said George W. Markham is now, was at the time of said foreclosure and sale, and had been for three-years prior thereto, wholly insolvent, and that the plaintiff in this action knew him to be so, and that the said premises were an insufficient security for this defendant’s claim aforesaid against the-said George W. Markham, which the plaintiff also knew; that knowing that the said premises were insufficient security for the defendant’s claim as afpresaid, the plaintiff being a second mortgagee of the said premises, and in possession of the same, between the 7th day of November, 1877, and the 23d of January, 1879,, wrongfully, fraudently and with the intent to cheat and defraud this defendant, and with the intent to reduce the defendant’s-security for its claim against the said Mai’kham aforesaid, and to deprive it of such security cut, or caused to be cut, from the said premises the wood mentioned in the said complaint, thereby wasting the said premises, and lessening and reducing the security of this defendant for its claim aforesaid, to this defendant’s damage-in the sum of five hundred dollars.”
    The plaintiff served a reply to the counter-claim denying all the-allegations thereof, and setting up new matter by way of avoidance.
    Upon the trial the court refused to receive evidence in support of the counter-claim, on the ground that the cause of action therein set forth was not allowable as a counter-claim in this action.

      Martin J. Keogh, for the appellant.
    The plaintiff, by replying, accepted the counter-claim and elected to adjudicate the issues-thereby raised in this action. {Ayers v. O Farrell, 10 Bosw., 117; Hammond v. Terry, 3 Bans., 188,189.) Though as a general rule a counter-claim cannot be set up by a defendant in an action in. tort, the tendency of recent decisions, and especially under the Code, has been to relax the rule as far as possible, and afford the defendant an opportunity of. litigating, without a separate action, any claim which he may have against the plaintiff which is within the spirit or meaning of section 501. (Tompson v. Kessel, 30 N. Y., 389 ; Fett/reeh v. McKay, 17 Id., 127; Isham v. Bavidson, 51 Id., 210.)

      Miles c& Wood, for the respondent.
    Although the facts relied upon by the defendant, as a counter-claim, would constitute a cause of action, yet they would not impair" the plaintiff’s title to the severed wood, or in any manner give the-defendants any title to or lien upon it. (Wilson v. Mdliby, 59 N. Y., 129; Peterson v. Glorie, 15 Johns., 201; Yam, Pelt-v. McGrow, 1 N. Y., 112.) Nor do they, in this action for the conversion of the wood, constitute a valid counter-claim. {Smith v. Hcdl, 67 N. Y., 51; Bissell v. Pea/rse, 21 How. Pr., Ill; Huelet v. Reyns, 1 Abb. Pr. N. S., 27, 29, 30 ; Ghamboret v. Gagney, 2 Sweeney, 378, 385; Anderson-v. Hill, 55 Barb., 238, 216 ; Lehmair v. Griswold, 10 N. Y. Super. [J. & S.] 101.) Counter-claims are not" admissible in actions for a conversion. {Smith v. Hall, 67 N. Y., 51; Lehmair v. Gris-wold, 10 N. Y. Super. [J. & S.] 100; Piser v. Stearns, 1 Hilt., 86, 88; Chambers v. Lewis, 2 Id., 591; Huelet v. Reyns, 1 Abb. Pr. N. S., 27, 29, 30. See also Murden v. Priment, 1 Hilt.., 75.) The same point is indirectly held in Harris v. Cvrret, 9 Abb. Pr., N. S., 200, 203. Even in actions on contract, for rent, the tenant cannot counter-claim a trespass committed upon the leased premises by the landlord during the term. (Edgerton v. Page, 20 N. Y., 285 ; Drake v. Gookroft, 4 E. D. Smith, 39 ; Gram v. Dresser, 2 Sandf., 125, 126 ; Mayor, <&e. v. Parker Vein Steamship Go., 21 How. Pr., 292 ; Xenia Bank v. lee, 2 Bosw., 694.)
   Gilbert, J. :

In Hammond v. Terry (3 Lans., 188), this court held, adopting the decision in Ayres v. O'Farrell (10 Bosw., 147), that a reply to a counter-claim operated as a waiver of an objection, that the same was not allowable. But the Court of Appeals have since expressed a contrary opinion, without, however, referring to these cases. (Smith v. Hall, 67 N. Y., 51.)

Assuming that the plaintiff’s reply was not a waiver, the question remains whether the facts alleged constituted a proper subject •of a counter-claim. The action is one to recover damages for the conversion of sixty-ñve cords of wood. The defendant alleged, as a counter-claim, that it held a mortgage on certain lands, that the wood in controversy was the product of trees grown upon the said lands, and that the plaintiff, being a junior mortgagee in possession, knowing that the said lands were an insufficient ¡security for the payment of the defendant’s mortgage, and that the mortgagor was insolvent, wrongfully, fraudulently and with intent to cheat the defendant, and to impair the security of the said mortgage, committed waste on the said premises, by cutting the wood in controversy therefrom, to the defendant’s damage of $500. It is not disputed that such facts are a good cause of action against the plaintiff. (Gardner v. Heartt, 3 Den., 232; Van Pelt v. McGraw, 4 N. Y., 110.) But in an action brought to recover damages for a tort, a tort committed by the plaintiff cannot ordinarily be pleaded as a counter-claim. It must be “ connected with the subject of the action.” (Code Civ. Pro., § 501.)

We think the defendant’s cause of action is so connected. The subject of the action is the wood converted. Assuming that the plaintiff .acquired title to- the wood, he did so by acts which rendered him liable to the defendant for the damages • occasioned by such acts. In other words, the plaintiff’s property in the wood was the result of the waste committed by him. If he had not committed the waste, the trees would have remained and formed a part of the mortgaged premises. Thus the waste is, we think, inseparably connected with the conversion of the wood, which is the subject 'of the action. (G. & H. Manuf. Co. v. Hall, 61 N. Y., 236.) It is not easy to define what was intended by such a general phrase as connected with the subject of the action.” Such language does, however, plainly indicate a design to enlarge the scope of the old rule relating to set-off and recoupment', and to authorize an application of the equitable principle, that cross claims growing out of ■ the same matter or controversy should be determined in one action, and that the balance, only, found to be due* should be recovered. To that end the provision cited should receive a liberal interpretation. (See Thompson v. Kessel, 30 N. Y., 389; Fettretch v. McKay, 47 Id., 427; Isham v. Davidson, 52 Id., 240.)

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

Present — Barnard, P. J., Gilbert and Dykman, JJ.

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


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    DANIEL McCARTY and MATTHEW McNAMEE, Respondents, v. THOMAS HOLMAN, LAUNCELOT NICHOLS and WILLIAM NICHOLS, Appellants.

      Oyster-heds — right of the one who stalces them, out. to the oysters planted and, their offspring.

    Although the right of fishing in the navigable waters of the State is common-to all of its citizens, yet where one has staked out a bed, where no oyster» .are then growing, planted oysters therein, and taken measures to save and protect the young oysters, or “spat,” such oysters and their offspring belong to him, and he may maintain an action against one who takes them away and converts them to his own use.

      Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jui-y, 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 for the conversion of certain oysters which were claimed to belong to the plaintiffs.
    Upon the trial, the plaintiffs gave evidence tending to show that,in the month of July, 1876, the plaintiffs entered into a copartnership for the purpose of planting and raising oysters, and selected the ground described in the complaint, to plant their oysters on. That on dredging over the ground, to ascertain whether there were any natural oysters growing there, and whether it was a natural oyster-ground, they found none. They then staked out the ground distinctly, and purchased and planted 2,300 bushels of scallop shells, .■and a quantity of seed oysters. The shells were put down for the purpose of catching the oyster spat floating in the water, which would not set on the mud. The plaintiffs tended and watched the young oysters as they grew, and kept them clear of seá-stars for more than two years, until the Fall of 1878, when the young oysters had begun to be marketable, when the defendants went on the grounds and took up and carried away about $300 worth of the oysters, and sold them, and refused to return them, or account for them to the plaintiffs. The defendants claimed that the spot selected by the plaintiffs was a natural oyster bed, and that they were entitled to take the oysters therefrom.
    Upon the trial, one Chapman was examined as a witness, and testified that he had taken oysters from the bed in the fail of 1878. He was then asked whether he ever got oysters prior to that time <on that ground. . The plaintiff objected to this question, and the objection was sustained.

      ArtJmr T. Hoffonam, and John, II. Olapp, for the appellants.

      Martin, J. Keogh, for the respondents.
   Gilbert, J.:

No doubt the right of fishery in the navigable waters of the State is common to all its citizens. Equally clear, however, is the right of any citizen to acquire an exclusive property in oysters which he has planted upon beds, distinctly designated by stakes,where no oysters were growing at the time. (Fleet v. Hegeman, 14 Wend., 47; Decker v. Fisher, 4 Barb., 595; Lowndes v. Dickerson, 34 Id., 589.) The right of property in such oysters rests upon the same principle as that which governs that in animals JercB naturae, which have been caught and reclaimed. Indeed, it is a misdemeanor to take and carry away' oysters so planted. (L. 1866, ch. 753.) We are of opinion also, that the same right of property extends to, and embraces the offspring of parent oysters ¡so planted, which remain within the bed so designated, and is not restricted to the identical oysters planted. .Young oysters, when expelled, are about of an inch in length, and about two millions are capable of being closely packed in a cubic inch. (Chamb. Enc.) Fishermen call them spat. They are wafted away by currents, and would be lost unless they found an object to which they could adhere. The plaintiffs provided means within the- bed, which they planted, to save the spat of oysters, and we are of •opinion that their property in the oysters grown from the spat so preserved is quite as good as that in the parent oysters, whether the spat proceeded from oysters which they planted, or from other oysters. Upon the questions of fact involved the verdict of the jury rests upon sufficient evidence, and it must bé held to be conclusive.

• The question put to the witness, Chapman, was properly excluded, because it was not limited to a period prior to the planting of the plaintiff’s oysters. We have already answered the first •exception to the charge of the judge. The second one is not ,-specific enough to raise the question as to the effect of planting •oysters upon a bed of natural oysters.

The judgment and order denying a new trial must be affirmed with costs.

Present — Barnard, P. J., and Gilbert, J.; Dykman, J., not • ¡sitting.

Judgment and order denying new trial affirmed with costs.


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    WILLIAM G. POWELL, Administrator, &c., of JAMES POWELL, deceased, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.

      Contributory negligence — when a failure to loolc out for an approaching train does-not constitute it.

    Tile plaintiff’s intestate, a bright boy of nine years of age, waited on the westerly side of the defendant’s road, at a public crossing, until a long freight, train, wliich was going in a southerly direction, had passed, and then immediately attempted to run across the tack, without looking along it, to see-whether another train was approaching; after having run aboutthiity or forty feet he was struck by the locomotive of a passenger train, going north, at a speed of about thirty or thirty-five miles an hour; there was a curve-just south of the crossing, which hid the tracks beyond it, and only about twenty-five seconds elapsed from the time the locomotive passed it until it struck the boy.

      Held, that the court properly refused to nonsuit the plaintiff on the ground, that the deceased had been guilty of contributory negligence
    Appeal from a judgment in favor of the plaintiff, entered upon, the verdict of a jury, and from an order denying a motion for a. new. trial, made upon the minutes of the justice before whom the action was tried.
    James Powell, a bright boy about nine years old, was killed on. June 19, 1878, by being struck by an express train on defendant’s road,- while attempting to cross their track at Eishkill Landing. The railroad at the point of the accident runs north and south. As he approached the track to return home a long oil train was passing-south on the west track; he waited until this train had passed, then started across the track, was struck by the express train running north at the rate of thirty or thirty-five miles an hour on the east track, and killed. Owing to a curve in the railroad at the point of' the accident, the adjacent buildings and the passing, oil train, the-deceased could see but a short distance, in the direction, from which the express train came. The fireman on the engine of the express-train, who was keeping a look-out oil the side from which the boy-approached, did not see him until the' engine was upon him.

      Evidence was given tending to show that at the place whei’e the> accident occurred, people were in the habit of crossing afoot and with teams, and had been for over fifty years, and that at the time of the accident, a sign board was standing at the crossing on which were the words : “ Railroad Crossing — Look out for the Oars.”
    This action was brought under the statute by the plaintiff, (who-was the father of the deceased,) as his personal representative to recover damages from the defendants for negligently causing the-decedent’s death. The defendant moved at .the close of the trial for a nonsuit on the ground that no negligence was shown on the part of the defendant, and that it did appear that the plaintiff’s-negligence contributed to the accident.

      Frank Loomis, for the appellant.

      Benjamin M. Fowler, for the respondent.
   Gilbert, J.:

Excluding the motion for a nonsuit, we think that none of the exceptions taken upon the trial deserve much comment. The objection to the question put to the witness, Robinson, was properly overruled. His position was described, and whether it actually disabled him from hearing the signals of the approaching train or not,, was a question of fact and not one of law. There was abundant-evidence to go to the jury on the question whether there was a public highway or crossing at or near the place of the accident, and whether the deceased was killed at or upon that crossing. It was proved that the crossing had been used as such for more than twenty-years, and the defendant had recognized and proclaimed the existence thereof by the erection and maintenance of the signboard required by the general railroad act to be put up at railroad crossings. (L. 1850, ch. 140, § 40; 2 R. S., 6 ed., 164, § 163; Devenpeck v. Lambert, 44 Barb., 596; People v. Kingman, 24 N. Y., 559.) The space upon the railroad which.' the public had been accustomed to use as a crossing did not distinctly appear, nor did the evidence afford any means of defining precisely the limits thereof. Taking the reservation in the conveyance from Schenck to the defendant as a standard upon this subject, and assuming that the pub-'lie use had been co-extensive with the reservation, there could be -no question that the accident hapjaened upon the crossing. But the crossing had no doubt been practically located within narrower limits, and its limits measurably defined by long-continued use by the public with the assent and acquiescence of the defendant, and it was for the jury to determine upon all the evidence whether the ■deceased was struck by the engine within the limits of the crossing ns thus established. If he was so struck without fault on his part, the defendant was liable to the plaintiff for any negligence on its -part which caused the death of the deceased. There was sufficient •evidence upon both sides of the question whether the deceased was killed at the crossing to require the submission of it to the jury. 'The negligence imputed to the defendant was an omission, 1st, to ring the bell, or to blow the whistle on approaching the crossing, and, 2d, -of an omission of proper precautions against accidents when trains proceeding in opposite directions were passing the crossing. With respect to the first particular, there was a conflict of evidence ac-cording to all the cases; for the.testimony of two at least of the witnesses for the plaintiff was of a positive character although negative in form, and not at all compatible with the testimony on behalf of the defendant, that the bell was rung, or that the whistle was blown, as required by law. (Culhane v. New York Central & Hudson River R. R. Co., 60 N. Y., 133; Grippin v. New York Central & Hudson River R. R. Co., 40 Id., 34; Salter v. Black River R. Co., 59 Id., 631.) We think, also, that the •omission of all precautions, such as abatement of speed, special warning by a flagman or otherwise, or shutting off ingress to the crossing, under the circumstances proved in this case, was evidence of negligence on the part of the defendant, whether the statutory signals .■of the approach of the train to the crossing were given or not. The charge of the judge on this subject was fully warranted by the •cases next cited. (Weber v. New York Central, &c., R. Co., 58 N. Y., 451; Cordell v. New York Central, &c., R. Co., 70 Id., 119; Dyer v. Erie R. Co., 11 Id., 228.)

The only remaining question is whether the evidence warrants the inference that the deceased was free from negligence ? lie was a boy nine years old. Being on the westerly side of the railroad track while a freight train was passing in a southerly direction, he waited until that train had passed, and then immediately attempted to cross the railroad at a running pace. Having run thirty or forty feet only he was struck by the locomotive of a passenger train going north upon the easterly track, at a speed of thirty or thirty-five miles an.hour. It was proved that the boy did not look along the track before he started to cross, or while in the act of crossing, and this fact is relied upon and is the only one suggested as evidence of negligence on his part. Evidence was given that the freight train which was passing at the time obstructed the view of the track south of the crossing. Indeed, that fact is conclusively proved by the evidence of the fireman- of the locomotive attached to the passenger train. He testified that he was looking ahead of the locomotive; that he saw the boy-only-at the instant the locomotive struck him, and that twenty-five seconds only elapsed from the time when the locomotive emerged from a curve in the railroad track which hid the track south of .the crossing till the boy was killed. While the crossing of a railroad without looking to see whether a train is approaching or not is ordinarily evidence, and in some cases is conclusive evidence, of negligence, yet that rule is not an inflexible one, applicable' in - all cases. Regard must be had to the age of the person killed or injured. The same degree of circumspection is not required ,qf an infant, even though he be sui juris, as of an adult. Here, also, the accident happened under circumstances which were calculated to mislead and confuse the deceased. Even if the requisite signals of the approach of the passenger train were given the noise of the out-going freight train may have prevented the hearing of them, by the deceased, or he may have supposed that they proceeded from the locomotive attached to the latter train, for it appeals that only the latter locomotive could have been seen by the boy. when he began to cross the track. It would be revolting to our sense of justice to impute negligence to the boy under such circumstances, and we think that the law does not require us to do so. (McGovern v. New York Central, &c., R. Co., 67 N. Y., 417.)

There being no error, therefore, in the refusal to nonsuit, or in the charge of the judge, the judgment must be affirmed, with costs.

Present — Gilbert and Dykman, JJ.; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, witli costs.


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    ELIZA WENZLER, Respondent, v. SAMUEL G. McCOTTER, Appellant.

      Nuisance — ice on sidewalk — lessor liable for the damages occasioned by its existence during the time of the demise.

    The defendant was the owner of a house in the city of Brooklyn; between it and the adjoining house was a leader, which ran through the defendant’s' stoop and emptied upon the sidewalk in front of his house. This leader had originally been used to carry off the water from both houses, but at the time of the accident only the water from the adjoining premises passed through it. On December 27, 1876, water had run through the leader out upon the sidewalk, and there formed a mound of ice, upon which the plaintiff, while passing along the sidewalk at between nine and ten o’clock in the evening, slipped and fell.
    In an action by her to recover damages for tbe injuries thus sustained,

      Held, that the leader running from the defendant’s house and discharging the water upon the sidewalk, under such circumstances, was a nuisance for which the owner of the house-was liable, even though such house was, at the time of the accident, rented and in the possession of a tenant whose duty it was to remove the ice from the street.
    Appeal from a judgment in favor of the plaintiff entered npon the verdict of a jury, 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 appellant is the owner of a house and premises, known as No. -18 Fourth street, in the City of Brooklyn. It was built in connection with house No. 20, and had a leader connected with the roof of both houses at the top, running down through the center of a column, between and partly upon each house, until it reached the stoop, it then turned entirely on to the defendant’s premises and came through a hole in the baseboard of his stoop, and extended out on to the sidewalk in front of his house. This leader had been there for twenty years, and had originally been used to carry off the •water from both houses, but at the time of the accident hereinafter mentioned only the water from No. 20 passed through it. The defendant, at the time of the 'accident, was not in possession of the premises, having leased them to a. tenant. On the 21th day of December, 1816, at between 9 and 10 o’clock in the evening, the plaintiff, while passing along Fourth, street, and when in front of No. 18, stepped on a mound of ice, formed from water discharged from the mouth of this pipe on to the sidewalk, and slipping, fell and broke her ankle, and for the injury thus occasioned this action •was brought. The case was tried in the Kings County Circuit, .and resulted in a verdict for the plaintiff for $2,000.

      John A. Taylor, for the appellant..

      A. H. Dailey, for the respondent.
   Gilbert, J.:

An owner of real property is liable for an injury caused by a nuisance thereon, although the premises were in the possession of an occupying tenant when the injury happened, if the nuisance existed at the time of the demise. That principle is well settled. The question then is, was the leader running from the defendant’s house a nuisance ? It was constructed for the purpose of discharging water upon a sidewalk in Fourth street, in the city of Brooklyn, which originally flowed into it from the defendant’s and the adjoining premises, but which afterwards received only the flow from the latter. In December, 1816, a quantity of water so discharged congealed into a mound of ice upon the sidewalk, and •so rendered it unsafe. The plaintiff, while passing along the sidewalk, suddenly and without fault on her part, slipped upon that mound of ice and fell backward, breaking her leg by the fall. It is also a familiar rule that any act or thing which detracts from the. safety of travelers upon a highway or street is a nuisance. It may continue for a long period without causing any injury. Nevertheless it is a nuisance on account of its capability to cause an injury. The accumulation of water in reservoirs — the storage of explosive substances — the keeping of savage or vicious animals upon one’s premises, are examples of such nuisances. Those who create or maintain them, may be liable to indictment therefor, before any actual damage ensues, but an action lies only for a private injury occasioned thereby. Nor will the utmost care to prevent injury protect the author of a nuisance against such liability. Indeed, no-question of negligence is involved in such a case. One who has been injured by the wrongful act of another, is entitled to compensation for such injury, although the wrong-doer did not intend to-do an injurious act, and was careful to avoid doing one. (Congreve v. Smith, 18 N. Y., 82; Swords v. Edgar, 59 Id., 34; Roswell v. Prior, 12 Mod., 639; Thompson v. Gibson, 7 M. & W., 458.)

It is urged that the proximate cause of the accident to the plaintiff was the omission of the tenant to perform his duty of removing the ice from the sidewalk. The answer is that the ice was the immediate cause of the injury, and that the ice was upon the sidewalk, in consequence of the wrongful act of the defendant. The negligence of the tenant in not destroying the consequences of the nuisance, cannot excuse the wrongful act of the defendant-in creating it. Both may justly be held liable. The fact that-the water flowed from the roof of the adjoining premises, cannot relieve the defendant from liability. His liability springs, from his wrongful interference with the sidewalk, by constructing or maintaining a pipe. which discharged water thereon when the weather was cold enough to freeze it. It can make no-difference to the person injured, whether the water discharged flowed from the defendant’s roof or that of his neighbor. The mischief was produced by the discharge from, not the flow into, the pipe.

If the foregoing views are correct, the cause was properly disposed of at the Circuit, and the judgment and order denying a new trial should be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dxkman, JJ.

Judgment and order denying new trial affirmed, with costs.


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    ELLEN E. PECK, Appellant, v. JOSEPH R. LOMBARD, Respondent.

      Order of wrest — when it should not he nacated on conflicting affidmits.

    When the facts on whicli an order of arrest is granted are not extrinsic to the-cause of action, but the nature of the action alone furnishes the authority for granting it, it should not be vacated upon evidence tending to disprove-the existence of the cause of action; the merits of the controversy should not-be determined upon affidavits, but should be allowed to await the trial of the action.
    Appeal from an order made at Special Term, vacating an order of arrest issued in the above-entitled action.
    The action was brought to recover from the defendant a penalty for selling lottery tickets to the plaintiff. The order of arrest was-granted on an'affidavit setting forth the facts of the sale, and the motion to vacate was made on an affidavit, by the defendant, denying-the allegation contained in the complaint and in the plaintiff’s affidavit, and alleging that he purchased the tickets as her agent. The plaintiff replied by an affidavit controverting all the allegations of’ the defendant’s affidavit.

      Horace Graves, for the appellant.

      Paul Fuller, for the respondent.
   Gilbert, J.:

This being an action to recover a penalty, the order of arrest was properly granted. The affidavit of the plaintiff showed that a sufficient cause of action existed against the defendant. That only was prerequisite to the right to obtain the order (Code Civ. Pro., §§ 549-556, 557.)

The defendant, upon his affidavit controverting the existence of the cause of action, obtained an order vacating such order of' arrest. We think that the latter order was improperly granted. Where the facts on which the order of arrest is granted are not extrinsic to the cause of action, but the nature of the action alone constitutes the authority for granting it, it should not be vacated upon, evidence tending to disprove the canse of action. The merits •of the controversy should not be determined upon affidavits, but .should be allowed to await the trial of the action. (Welch v. Winterburn, 14 Hun, 518.)

Order appealed from reversed, with $10 costs, and disbursements.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order vacating order of arrest reversed, with costs and disbursements.