author: Barker, J.:

text:
    THE ROCHESTER, HORNELLSVILLE AND LACKAWANNA RAILROAD COMPANY, Appellant, v THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY and FRANCIS G. BABCOCK, Respondents.

      Might of a raibroad company to locate its route — when its act in so doing is not subject to remew by the courts —1850, chap 140, secs. 18, 22 — a person or corporation attempting to hinder or delay it from constructing its road will be enjoined from so doing,

    When a corporation, organized in compliance with the provisions of the general railroad act (1850, chap 140), has made a map and profile of the route intended to be adopted by the company and has caused the same to be duly certified and filed as required by section 22 of the said act, it has acquired a vested and exclusive right to build, construct and operate a railroad on the line which it has adopted, subject to the right of other railroad companies to cross its route and lands in the way and manner and for the purposes provided by law.
    Although the legislature has required that the general termini and route must be stated in the articles of association, it has left to the company the right, to locate the route in other respects, including the precise termini and the intermediate points, after it has caused surveys to be made and has ascertained which is the most feasible Line to adopt. So long as the company acts, in good faith and within the limits of the powers conferred upon it hy the act, its exercise of the discretionary power conferred upon it by the act cannot be reviewed by the courts, except upon the application of an aggrieved person over whose land the route is located, made as provided in section 22 of the said aot.
    On June 9, 1886, the plaintiff was organized, under the general act of 1850, for the purpose of building and constructing a railroad, commencing in the village of Canisteo, in the county of Steuben, and terminating at a point on the line of the Lackawanna and Pittsburg Railroad Company, in the town of Burns, Alleghany county, via the village of Hornellsville. The plaintiff thereafter surveyed and located its route, filed a map duly certified as required by the act, caused notices to be served on the landowners over whose lands the road was located, acquired the right of way for the greater portion of its entire • line, and was in good faith proceeding with due diligence to complete and put its road in operation. In the village of Hornellsville the route adopted by the plaintiff passed for some distance along and beside the lands of the defendant corporation upon lands which were owned in fee by the defendant Babcock, to which the plaintiff had acquired no title nor had any proceeding been instituted to condemn the same. After the defendant corporation had been served with notice of the proposed route it took a lease from Babcock, for the period of three years, of a piece of land between its road and a brick-yard and laid a switch thereon. The plaintiff, having caused this track to be taken up, and having laid down a section of its own track, about ninety feet in length, and placed rails thereon, commenced this action to restrain the defendants from interfering with or placing obstructions upon its road-bed, and procured therein a temporary injunction which was upon the return day dissolved.

      Held, that as it appeared from the affidavits, and the history of the proceedings and the declarations of the agents and managers of the defendant corporation, that in taking the lease -and in constructing the switch it acted maliciously and in bad faith, and for the purpose of hindering, annoying and delaying the plaintiff in the construction and completion of its road, the plaintiff was entitled to a preliminary injunction against the defendant corporation, which should be continued during the action and thereafter made permanent if the facts above stated should be proved upon the trial.

      Osborn v. United, States Bank (9 Wheat., 740-841;: Oroton Turnpike Company v. Byder (1 Johns. Ch., 611): T. and P. C. Bailroad Company v. W■ and V. Bailroad Company (12 Phil. R., 642); Contracosta Bailroad Company v. Moss (23 Cal., 423) followed.
    That the injunction was properly dissolved as to the defendant Babcock, as he was the owner in fee and entitled until the plaintiff acquired the right, by purchase or otherwise, to construct its railroad upon his land, to remain in possession thereof, and occupy, or sell or lease the same, without any restraint arising from the location of the road over the premises.

      Appeal from an order of the 'Monroe Special Term, dissolving an injunction restraining the defendants from placing obstructions upon the line of the plaintiffs road as located.

      Franlc S. Smith, for the appellant.

      James U. Stevens, Jr., for the respondent.
   Barker, J.:

The Special Term, in dissolving the injunction, held that as the plaintiff had not acquired the right of way for the purpose of constructing its road over the loans in quo by purchase from the owner, or by having the same condemned by proceedings instituted for that purpose under the statute, it had no right, estate or interest of which a court of equity can take cognizance and, by injunction, restrain the defendant corporation from doing the act complained of. This ruling goes to the merits of the plaintiff’s case as set forth in the affidavits. This court must also, in reviewing the order appealed from, consider the legal proposition, which lies at the foundation of the controversy.

This action is, on the equity side of the court, to restrain the defendant corporation from laying down its tracks upon or across the-route surveyed, located and adopted by the plaintiff, upon which to construct its road between the termini men tioned in its articles of incorporation. The preliminary injunctions, which the order appealed from vacated, was in terms co-extensive with the prayer for relief demanded in the complaint. The question presented is a very important one, which has not been much considered in the courts of this State, and involves the inquiry as to the nature and character of the franchises which are conferred upon railroad corporations organized under the general railroad act, and to the extent which courts of equity have jurisdiction to control the action of existing companies, when they purposely and designedly and in bad faith attempt to hinder and delay the construction of another road, which, when completed, becomes a ■competing line.

The plaintiff corporation was organized Jnne 9, 1886, for the purpose of building and constructing a railroad commencing in the village of Canisteo, in the county of Steuben, and terminating at a point in the line of the Lackawanna and Pittsburg Railroad Company, in the town of Burns in the county of Alleghany, met, the village of Hornellsville, which is also in the said county of Steuben. The plaintiff surveyed and located its route, made and filed a map of the same, duly certified by the proper officers of the company, as required by the twenty-second section of the said act. It then caused notices to be served on the land owners over whose lands the road was located, and the line so adopted has never been changed in any proceeding instituted for that purpose, and before this action was commenced the location was confirmed by virtue of the other provisions of the said section. In the village of Hornellsville the plaintiff’s route is, for some distance, along and beside the lands of the defendant corporation, upon which is located its tracks, and the locus m quo is upon lands of which the defendant Babcock is the owner in fee. The plaintiff has acquired the right of way for the greater portion of its entire line, and is in good faith and with due diligence proceeding to complete and put its road in operation. Adjacent to Babcock’s lands, on the side opposite from the defendant’s tracks, there is in operation a brickyard, the proprietors of which are accustomed to ship a portion of the bricks made by them on the defendant’s railroad at the station in Hornellsville. After the defendant was served with notice of the plaintiff’s proposed route, it took a lease from Babcock, for the period of three years, of a piece of land between its road and the brick-yard. The plaintiff’s road-bed, when constructed, will be on the same gráde as -the defendant’s tracks and road-bed to a point abreast Babcock’s fland.

On or about the' twentieth of August, the defendant constructed a switch from 'its tracks over Babcock’s premises and across the plaintiff’s line. During the night of the same day,.the plaintiff caused the track so far as it was laid upon its line, to be tom up and removed and laid down a section of track about ninety feet in length and placed rails thereon, which were not connected with any of the tracks then laid upon its road bed, and. procured and served an injunction restraining the defendant from interfering with or placing obstructions upon its road bed. It was disregarded, and on the same day the defendants’ agents and servants tore up and removed the section of track laid by the plaintiff. The plaintiff ¡had not purchased the right of way over Babcock’s land, nor had it instituted any proceedings under the statute for condemning the ¡same. This action was commenced August 21, 1886. It is not a question in dispute, but what it is the intention of the plaintiff in good faith and as soon as it is practicable to complete its road’ and put it in operation. •

We are also of the opinion that it is fairly established by the facts disclosed in the affidavits and the history of the proceedings ¡and the declarations of the defendant’s agents and managers that its ¡action in taking the lease from Babcock and in constructing the switch was malicious and in bad faith and for the puipose of hindering, ¡annoying ¡and delaying the plaintiff in the completion of its road. ■Of course this expression of our opinion as to the defendant’s motives is upon the ¡case as now presented and will be no guide for •the court when the case is tried upon the merits, and the facts must then be determined upon the evidence presented, if we are correct in our conclusions as to the facts which we considered faiily established by the affidavits, we think the plaintiff made a case for the .allowance of the preliminary injunction and that the same should be continued pende7de lite.

Under the general railroad act when a corporation has been organized in compliance with th conditions of the statute and has •made a map and profile of the route intended to be adopted by the company, duly certified and filed as ¡required by the twenty-second ¡section it has acquired a vested and exclusive right to build, ■construct and operate a railroad on the line which it has adopted, ¡subject to the right of other railroad companies to cross its route and lands in the way and manner and for the purposes provided by law. The general termini and route must be stated in the articles ■of association, but the location in other respects including the precise termini-the intermediate., points, the legislature has left ■to the election of the companyafter it has surveyed and ascertained which is the most feasible line-; the exercise of its discretion when it acts in good faith and withi-m the limits of the powers ■conferred upon it, cannot be reviewed .by the courts only on- the ¡application of an aggrieved person, over whose lands the road is located as provided in the said section- twenty-two. In this case Babcock petitioned lor a change of the- -route buc his application was defeated. The plaintiff has a franchise conferred upon it by the legislature to construct its road over the established line.

The first and important inquiry is, has the defendant invaded this franchise secured to the plaintiff, in such a manner and to such an extent, as to confer upon a court of equity jurisdiction of the subject matter and justify the granting of a preliminary injunction restraining the defendant from carrying into execution during the pendency of the suit, its declared purpose to hinder and delay the plaintiff in the construction of its road and the enjoyment of its franchises. The general rule is established by the decisions of courts of equity jurisdiction that an injunction will be granted, securing to persons and corporations the enjoyment of a statutory privilege of which the complaining party is in the actual possession, unless the right is doubtful; if the right plainly exists and has been invaded, the proper and specific remedy, that which will prevent a continuance of the invasion, is by injunction, and this can be decreed only in equity.

We think the plaintiff has made a case against the defendant corporation which comes within this rule, the facts are not left in doubt, nor are they complicated. The plaintiff’s rights depend upon the construction of the statute under which it was organized , that the plaintiff’s franchise is exclusive so far as the right to construct a railroad on the line which it has adopted must be conceded, as another road cannot be constructed and operated on the same location, although the statute has not declared in express terms that the privilege is an exclusive one, it would lead to endless contention and disastrous disturbance to hold otherwise and give the statute a different construction. In Osborn v. United States Bank (9 Wheat., 740-841), the court, in speaking of the powers of a court of equity in this class of cases, remarked: The interference of the court in this class of cases, has most frequently been to restrain a person from violating an exclusive privilege by participating in it. But if, instead of a continued participation of the privilege, the attempt be to disable a party from using it, is not the reason for the interference of the court rather strengthened than w'eakened %

In Croton Turnpike Company v. Rider (1 Johns Ch, 611), the chancellor, after stating that the defendant’s action was a material and mischievious disturbance of the plaintiff’s franchise. granted to it by the Legislature for public purposes, declared the jurisdiction of the court over the ease to be complete, and added : It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statute privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. * * * The equity jurisdiction in such a case is extremely benign and salutary. Without it the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion.”

Most of the writers on the subject of equity jurisprudence assert jurisdiction in this class of cases. (Story Eq., § 927; Livingston v. Van Ingen, 9 Johns., 507; Tyack v. Brumley, 1 Barb. Ch., 519; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co., 2 Gray 1; High on Injunction, chap. 15, § 897; Plank-road v. Douglas, 12 Barb., 553; Livingston v. Ogden, 4 Johns. Ch. 48.)

A franchise is a branch of the sovereign power of the State, subsisting in a person or a corporation by a grant from the State. So long as the privilege bestowed on the grantee continues to exist, all other persons and corporations are, under the most solemn obligation as a duty which they owe the public, to observe the franchise and forbear from interfering with its enjoyment. All franchises are supposed to be for the public good. If the State was engaged in constructing a railroad on the route in question, in pursuance of a legislative enactment, no one would doubt but that the State could invoke the protection of the courts by restraining all persons from interfering with its purpose. We think the plain tiff, in its charter and the provisions of the statute authorizing its creation, may invoke the same degree of protection from this court. In some of the other States the question now before us has been considered and passed upon, and the decisions of these courts may be cited in support of the opinion which we entertained. In T. and P. C. Railroad Company v. W. and V. Railroad Company (12 Phil. R., 642) application was made by the plaintiff for a preliminary injunction restraining the -defendant from constructing its -oad upon and along the line which the plaintiff had previously adopted or from interfering with such located line. The injunction wan granted, the court being of the opinion that the plaintiff’s line was first located in the manner required by the statnte of that State, and that the defendant’s action was an invasion and interference with the plaintiff’s franchise. The remai’ks of the court as to the plaintiff’s privileges are so pertinent to the case before us that we quote them in this connection: Clearly, when a railroad company has ascertained and located where its road shall be, it is not competent for another company to step in and take its route, agreeing with the owners, and occupy the land. The selection and location of the route secures the title of the first company to that route, which it may carry to completion without disturbance by another.”

In the case of Contracosta Railroad Company v. Moss (23 Cal., 323) the same question was considered, and the court there remarked: “ It is clear that one railroad company cannot locate its line along or upon the previously located line of another company, nor can it condemn or appropriate land along or upon the previously located line of' another railroad company, except as before stated when it may be necessary for one railroad to cross another. Land once located by a company who are proceeding in good faith and with reasonable diligence in the construction of their road, cannot be taken from it under these proceedings and appropriated by another company for railroad purposes. By its priority of location and appropriation, the first company locating its line acquires a vested right to its line of road and the land necessary for its construction, as prescribed by the Railroad Law, of which it cannot be divested by another company who seek to appropriate the land to the same use.”

If the defendant is permitted to carry out its threats to construct and to keep down its tracks over the plaintiff’s route, it is obvious that it will be a serious invasion of the plaintiff’s franchise and will tend to interfere with the construction of its road and embarrass it in acquiring the right of way over Babcock’s land. It is equally clear that the plaintiff is in the possession of a franchise granted to it by the State, and that its right to the enjoyment of the saméis clear and beyond all doubt. It possesses the franchise or power under the law to acquire the right of way by purchase or condemnation, and the defendant’s past action and threatened action must necessarily tend to embarass the plaintiff in securing the right to construct and operate its road over the land owned by Babcock. The court is warranted in reaching the conclusion, that as matter of fact, Babcock and the defendant have conspired to hinder and delay the operations of the plaintiff. The purpose of the general railroad act is to favor and facilitate the construction of railroads for public convenience and use, and an existing railroad corporation whose franchises and privileges are based upon the same statute, should not be tolerated in the least in any action, movement or purpose ■ to defeat or delay the construction of other railroads. Every attempt to do so should be promptly met and condemned, and the proper process in an appropriate case should be unhesitatingly granted for the protection of an aggrieved party.

As to the defendant Babcock, the injunction was properly dissolved, as he was owner in fee of the land, and until the plaintiff acquired the right by purchase or otherwise to construct its railroad upon his land, he rightfully remained in possession of the same, and could use and occupy or sell or lease the same without any restraint arising from the location of the road over the premises.

The case of the Corporation of New York v. Mapes (6 Johns. Ch., 46), cited in the opinion of the learned judge who presided at the Special Term, is. in point in sustaining the dissolution of the injunction as to Babcock, but is not, as we can see, an authority vindicating the action of the defendant corporation.

So much of the order as vacates the injunction against the New York, Lake Erie and Western Railroad Company is reversed, with ten dollars costs and disbursements to be paid by that company to the plaintiff, and the rest of the order is affirmed, with ten dollars costs and disbursements to be paid by the appellant to the respondent Babcock.

Haight J\, concurred; Smith, P. J., and Bradley, J., not sitting.

So ordered.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    In the Matter of the Application of the NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent, for the Appointment of Commissioners to Examine the Proposed Route of the PITTSBURGH, LACKAWANNA AND NORTH-EASTERN RAILROAD COMPANY, in the Town of Watland, Appellant.

      Railroad crossings — all questions relating to them are to be decided by the commissioner appointed under section 28 of the general act;

    Where the proposed route of a railroad company, as located by the filing of its map, crosses the track or tracks of an existing company, the latter company cannot apply for the appointment of commissioners, under section 22 of the general act, as amended by section 1 of chapter 560 of 1871, to change the route of the road proposed to be constructed.
    Section 28 of the said act provides the means of determining all questions arising between two corporations which cannot agree upon the amount of compensation, or the line or lines, or grade or grades, or points and manner of crossing and connection.

      Matter of Application of the Lake Shore and Michigan Southern Railroad Company (89 N. Y., 442); The Matter of the Boston, Jloosac Tunnel and Western Raib-oad Company (79 id., 64) followed.
    Appeal from an order made at Chambers by a justice of the Supreme Court, adjourning proceedings and granting leave to the petitioners to serve and bring in other parties; and also' from an-order made by the same justice appointing commissioners to' examine and determine whether the appellants proposed route-should be changed under section 22 of the railroad act as amended,

      Frank S. Smith, for the appellant.

      D. G. Robinson, for the respondent.
   Haight, J.:

The respondent presented a petition;’ to a justice of this court,, at chambers, asking for the appointment of commissioners to examine' the appellant’s proposed route and the route to which it proposed to alter the same; and that an order be made changing such proposed route. The grounds stated in the petition for such change-are, in substance, that the appellant’s róute, as designated, crossed; the petitioner’s tracks at grade, and that they should cross either at an over or under-grade; that the route, as designated, crossed at an extremely acute and dangerous angle; that it made sharp curves upon each side, making the operation of the road extremely dangerous; and that it crossed within 2,300 feet of the respondent’s railroad station and within 100 feet of its switches into the main track; and that the crossing was near a sharp curve on the main line of the respondent’s road, which would endanger the trains of the petitioner, its passengers and property,. Upon the return day of the notice an affidavit was read and filed to the effect that one Josiah Gray had a life estate in lands that would be affected by the proposed change, and that he was the sole occupant and possessor thereof; that thereupon the judge made an order adjourning the procedings and permitting the petitioner to serve the petition and notice upon Gray and such other persons as may be discovered to have interests in the lands affected by the proposed alteration, with like effect as if such persons had been served within the fifteen days limited by the statute. Upon the adjourned day the judge made an order appointing commissioners. Before making such order the appellants moved to have the proceedings dismissed upon the ground that necessary parties had not been served within the time limited by the statute, and that the judge had no jurisdiction to grant the prayer of the petition upon the ground that the petitioner cannot apply for the appointing of commissioners under section 22 of the general railroad act, as amended. Appeal was taken from both orders.

Section 22 of the railroad act, being the section under which the petitioner moved „ for the appointment of commissioners, among other things, provides that any occupant or owner of land over which such route passes, feeling grieved by the proposed location, may, within fifteen days’ after receiving written notice, etc., give ten days’ notice in writing to such company, and to the owners or occupants of lands to be affected by any proposed alteration, of the time and place of an application to a justice of the Supreme Court in the judicial district where such lands were situated by petition duly verified for the appointment of commissioners to examine the said route, etc. Subdivision 6 of section 28 of the act, among other things, provides, that if the two corporations cannot agree upon the amount of compensation to be made or tbe line or lines, tbe grade or grades, points and manner of snch crossing and connections, the same shall be ascertained and determined by commissioners. It further provides that the commissioners shall have full power to determine whether the crossing or crossings of a railroad before constructed shall be beneath, at or above the existing grade of any such railroad, and upon the route designated on the map of the company seeking the. crossing required to be filed by section 22 of the act or otherwise. This provision is the provision under which the line or lines, the grade or grades, points and manner of crossing and connections between railroads are determined. The commissioners are given power to determine whether or not the crossing shall be permitted upon the route designated on the map of the company seeking the crossing. In the case of the Boston, Hoosac Tunnel and Western Railroad Company to acquire the right to cross the railroad of the Troy and Boston Railroad Company (79 N. Y., 64), it was held that the points of crossing were not necessarily fixed by the notice of the location of the new route and the failure of the company owning the previously constructed road to object to such location within fifteen days. The subject of crossing existing railroad tracks being specifically provided for and the proceedings by which the points of crossing are to be determined being pointed out by the statute, the general provisions in regard to the location of the route and the right of property owners to object to such location are not applicable to the manner of crossing and cannot deprive existing roads of any of the protection which the provisions in respect to crossings afford them. It would thus appear that nothing done by the commissioners appointed to change the route under section 22 of the act would be binding upon the commissioners appointed to determine the place and manner of crossing the existing railroad. It would consequently follow that nothing could be accomplished by proceedings under the former section. This view was suggested by Tracy, J., in delivering the opinion of the court in the case of the application of the Lake Shore and Michigan Southern Railroad Company to change the route of the New York, Lackawanna and Western Railroad Company (89 N. Y., 442). He quotes with approval the decision in the Boston and Hoosac Tunnel case (supra), and says: “ Where the proposed route of a railroad company, as located by the filing of its map, crosses the track or tracks of an existing company it may well be doubted whether the last named company can apply for the appointment of commissioners under section 22 of the General Railroad Act, as amended by the act of 1871 (Laws of 1871, chapter 560, section 1), to change the route of the road proposed to be constructed. Section 28 of the same act would seem to provide the means of determining all questions involved as between railroad companies where one seeks to carry its line across the line of the other.”

We are aware that proceedings to change routes nave m several cases been heretofore instituted under section 22 of the act, and that such proceedings have been sustained in the General Term; but the question as to the power so to do does not appear to have been expressly raised or considered.

In view of the more recent decisions of the Court of Appeals, we are inclined to the opinion that the rights of existing railroads are fully protected and can be determined under the provisions of section 28 of the act, and that the proceedings were improperly instituted under section 22. This conclusion renders it unnecessary to consider the question raised by the appeal from the order permitting other parties to be brought in.

Orders reversed with ten dollars costs in one appeal only, and disbursements, and motion to' appoint commissioners denied with ten dollars costs.

Lewis, J., concurred; Bradley, J., not sitting.

Order reversed, with ten dollars costs, in one appeal omy, and disbursements, and motion to appoint commissioners denied, with ten dollars costs.


author: Haight, J.

text:
    MARTHA S. BOND, as Administratrix, etc., of MARTIN W. BOND, Deceased, Respondent, v. EDWARD B. SMITH, TOWNSEND DAVIS and GUSTAVUS BASSETT, Appellants.

      Nuisance — when an open area near a public alley is one — a person injured while passing along the alley is not guilty of contributory negligence because of his knowledge of the defect — liability of the owner because of his failure to erect proper guards — when he is chargeable with constructive notice of the condition of the alley.

    Upon the trial of this action, brought to recover damages resulting from the death of one Bond through the negligence of the defendants, it appeared that the defendants Smith and Davis were the owners of a four-story brick building on the east side of Main street, in the city of Buffalo, running through to a public alley, known as Webster’s alley, which runs southerly from Seneca street, along the rear of the buildings fronting on Main street, and is a cul de sac. The buildings on each side of the defendants’ store are built to the line of the alley, but the defendants’ rear wall, is about three feet from the alley, between which and the rear wall there is an open area three feet wide and eight deep, with no guard except a stone wall that extends six or seven inches up above the surface of the alley, just high enough so that a person in a dark night could stub a foot against it and fall over into the area.
    The plaintiff’s intestate was employed as a watchman to go through the alley at least once an hour during the night and examine the doors and windows of buildings owned or occupied by subscribers to the agency, who employed the watchman. The defendants were not subscribers and it was not the intestate’s duty to examine their doors. On September 17, 1884, between twelve and one o’clock a. m. , the watchman was found lying on his back in the northerly end of the area with his head to the south. No one was present or saw him fall into the area. He was taken out and carried home where he died on October seventh from the injuries received from falling into the area. The night was dark, and the evidence tended to show that a public lamp therein was not lighted on that night.

      Held, that the question of contributory negligence on the part of the deceased was properly submitted to the jury, and that a verdict in favor of the plaintiff would not be disturbed.
    That as the alley was public a person traveling thereon was justified in assuming that it was safe, and the fact that he had previous knowledge of the defect thereon did not, per se, establish negligence on his part.
    That, although the area was not within the limits of the alley, yet if it was so near to it as to endanger persons passing along the alley, it was a public nuisance.

      0am v. Oily of Syracuse (29 Hun, 105; S. C., 95 NT. Y., 83-89); Kileyv. Oily of Kansas (69 Mo., 102); Jones v. Gity of New Haven (34 Conn., 141) followed.

      The defendant Bassett had owned and occupied the premises for some twenty-eight years, and until 1881, when he sold and conveyed the premises to the defendants Smith and Davis, but still continued in the use and occupation thereof as their tenant under a lease by which he was to keep the premises, and every part thereof, in good repair during the term, the lessors reserving the right to enter in person or by agent at all reasonable times of the day to examine the same and to make such repairs thereon as they should think requisite. The area was made many years before the accident for-the benefit and convenience of the owners and occupants of the buildings. The owners were residents of Buffalo, their office being on Main street, nearly opposite the building in. question, and they had passed this building many times and been in it.
    Held, that the owners were chargeable with constructive notice of the existence of the area, and were liable for the damages occasioned by their neglect to abate the nuisance occasioned by its being left unguarded.

      Corilwcton Stone Boad v. The Buffalo, New York and Eh'ie Baih'oad Company (51 . N Y.,573); Wolfv. Kilpatrick (101 id., 146) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict at the Erie Circuit and from an order of the Erie Special Term denying a motion for new trial made upon a case and exceptions.

      George Wadsworth, for the appellants, Smith and Davis.

      F. Brundage, for the appellant Bassett.

      Porter Horton, for the respondent.
   Haight, J.

This action was brought to recover damages resulting from the death of Martin W. Bond, through the alleged negligence of the defendants. The appellants, Smith and Davis, are the owners of a four-story brick building on the east side of Main street, in the city of Buffalo, running through to "W ebster’s alley. This alley runs southerly from Seneca street, along the rear of the buildings fronting on Main street, and is a cul de sae. The buildings on each side of the appellant’s store are built out to the line of the alley, but the rear wall of the appellant’s building is about three feet from the alley. Between the rear wall and the alley there is an open area, about three feet wide and eight feet deep. The plaintiff’s intestate was employed, as a detective and watchman, by "Watts & Curtin’s detective agency, and it was his duty as such watchman to go through "Webster’s alley at least once an hour during the night and examine the doors and windows of buildings owned or occupied by subscribers to that agency, to see that everything was right. The defendants were not subscribers to the agency and it was not his duty to examine their store. There were stores, however, on either side which it was his duty to examine and watch. Between twelve and one o’clock a. m., on the 17th day of September, 1884, he was found lying on his back in the northerly end of the area, with his head to the south. No one was present or saw him fall into the area. He was taken out and carried to his home where he died on the seventh day of October, from injuries received in falling into the area.

It is contended on the part of the appellants that the plaintiff ought not to recover herein for the reason that the evidence does not establish that her intestate was free from contributory negligence which caused the injury and that it was error on the part of the court to refuse their motion for a nonsuit. In support of this contention the general rule is invoked that a person in order to recover for a personal injury must show himself free from fault and negligence. Undoubtedly this is the general rule and the burden of establishing these facts rests upon the plaintiff. When a person is approaching a known and visible place of danger it is his duty to make a vigilant use of his senses in order to apprehend and avoid the danger, and when the circumstances point just as much to the negligence of the deceased as to its absence or point in neither direction,' the plaintiff should be nonsuited, and the presump7 tion that every person will take care of himself from regard to his own life and safety cannot take the place of proof for the reason that persons exposed to danger will frequently forego the ordinary precautions of safety. But, on the other hand, it was admitted by the appellant Bassett that Webster’s alley was a-public alley. The evidence presented upon the trial and the records of the common council of the village of Buffalo, which were presented to the General Term upon the argument of this appeal, and which we admit, we think establish the fact that it was a public alley and had been for upwards of fifty years, and the rule is that a person traveling upon a highway is, as a general rule, justified in assuming that it is safe, and where he is injured in consequence of a defect therein, the fact that he had previous knowledge of the existence of the fact does not yer se establish negligence on his part. (Weed v. Village of Ballston Spa, 76 N. Y., 329.)

The public are entitled to an unobstructed passage upon the streets, including the sidewalks, of a city, and a person obstructing the same, or digging pits therein producing a nuisance, may be held liable for damages resulting therefrom. (Clifford v. Dam, 81 N. Y., 52.)

But it is claimed that the area in the rear of the defendants’ building was not within the street and was not a public nuisance. As we have seen the area was in the rear of th¿ building and came up to the line of the street or alley. The only guard was a stone wall that extended six or seven inches up above the surface of the alley, just high enough so that a person, in a dark night, could stub a foot against it and fall over into the area. It is not necessary that the pit or obstruction should be in the street in order to be a public nuisance. That which menaced or put in jeopardy citizens who pass along, the public way is a public nuisance. (Cain v. City of Syracuse, 29 Hun, 105; same case, 95 N. Y., 83-89.)

As, for instance, a wall of a building standing upon private lands but next to the street in a dangerous condition, so as to put in jeopardy those who pass along the street, is a public nuisance. (Kiley v. City of Kansas, 69 Mo., 102.) So, also, is a dead limb of a tree extending over the public way in a condition liable to fall and injure persons a public nuisance. (Jones v. City of New Haven, 34 Conn., 141.) So in case this area was£ so near to the alley as to endanger persons passing along the alley it was a public nuisance. The question as to whether or not it was a nuisance was properly submitted to the jury and their verdict upon the question is conclusive.

In the case under consideration it was the duty of Bond to pass through this alley every hour during the night. The alley was a paved alley but fifteen feet wide. On either side there were brick buildings from four to six stories high. There was a public lamp in the alley, but the evidence tends to show that it was not lighted on the night in question. It was his duty to examine the doors and windows of buildings on cither side of the area in question. He was there in the discharge of his duty and was subsequently found in the bottom of this area. It does not appear whether or not Jie knew of its prior existence, but tbe fact that he had passed through the alley on numerous occasions on other nights may lead to the inference that he knew of it. But even suppose that he did. Its precise location may not have been easily discernible in the darkness, and although exercising ordinary caution his foot may have hit against the wall surrounding the area upon the line of the alley causing him to stumble and fall in. At least we think the evidence is such as to justify the jury in drawing this inference. (McGuire v. Spence, 91 N. Y., 303; Beck v. Carter, 68 id., 283.)

It is claimed on the part of the appellants, Smith and Davis, that even though the defendant Bassett is liable that they are not. Bassett had been the owner of these premises and had occupied them for some twenty-eighty years. In December, 1881, he sold, and conveyed them to the defendants Smith and Davis, but continued in the use and occupation as their tenant until after the death of Bond. The lease provided that Bassett, the lessee, should keep the premises and every part thereof in good repair during the term, and leave the same in as good condition as when taken reasonable use and wear thereof excepted, and it provided that the lessors, ■Smith and Davis, in person or by agent, should be permitted to enter the premises at all reasonable times of the day to examine the same to make such repairs therein as they should think requisite. The area was made many years before the accident for the benefit and convenience of the owners and occupants of the building. The defendants, Smith and Davis, testified that they did not know of its existence until the'accident in question. It appeared from the evidence that they were residents of the city of Buffalo, and that their office was nearly opposite the building in question upon Main street; that they had passed this building a great many times and had been in it, and that they had been the owners of it for nearly three years. "We consequently think that they were chargeable with constructive notice if the jury did not find that they had actual notice. We are aware that in the Conhocton Stone Road v. The Buffalo, New York and Erie Railroad Company (51 N. Y., 573), it was held that in order to maintain an action for damages resulting from a nuisance upon the defendant’s land, where such nuisance was erected by a previous owner before conveyance to the defendant it is necessary to show that before the commencement of the action he had notice or knowledge of the existence of the nuisance. In that case the court does not discuss the question of constructive notice.

And, again, in the case of Wolf v. Kilpatrick (101 N. Y., 146), a tenant had built vaults under the sidewalk 'with a coal-hole through the walk, the cover of which had been broken by the wrongful act of a stranger. It was held that the owners, who had had no notice of the defect, were not liable for injuries received by a person falling through the hole. It will be observed in this case that the vault and coal hole through the sidewalk was.constructed by the tenant of the defendants, and that the tenant had entire and exclusive control over the premises. The court says, in reference to the nuisance, that the defendants, the owners, could not be deemed to have suffered it to continue if they had no knowledge, actual or constructive, of its existence. So that we are led to infer that had they had constructive notice a different result might have been reached.

The nuisance in the present case was a public nuisance. The defendants, Smith and Davis, reserved the right under the lease to enter the premises and to make necessary repairs. They had been the owners of these premises for nearly three years, and it was a duty that they owed to the public to abate any nuisance that endangered the life or limb of persons passing along the alley. It was an open, visible area, that must have been seen and known by them had they visited the end of the premises abutting upon the alley. They should consequently be chargeable with constructive notice. As to the defendant Bassett there is no pretense but that he knew of the condition of the area, and had for a number of years. He was in the actual occupancy of the building, and had the power under his lease to repair and protect the area. There is evidence also tending to show that he knew of the dangerous character of the place, and that another policeman, some years before, had fallen into the same place and broken a shoulder.

The defendants’ counsel requested the court to charge the jury that if the plaintiff’s intestate, Bond, knew of the existence of this area, or might with reasonable and proper use of his faculties know of the existence of it, he was bound to take -knowledge thereof, and to use proper care and diligence to avoid it. The court remarked: “ I have charged upon that subject, and I decline to alter my charge, or to change it in respect to cases of abstract proof.” Counsel for the defendants excepted to the refusal to so charge. The court did charge the jury in reference to the contributory negligence of the deceased that it was claimed by the defendants that Bond knew of the existence of the hole, and had abundant opportunity to know about it, and that he should have kept a lookout for it, and if he fell into it he Inust have fallen into it carelessly, and that there was no evidence that he'took prOpei care of himself to avoid the falling in, whilst on the part of the plaintiff it was claimed that he was lawfully in the alley, •and he had the right to assume that the alley was all right:; that he had no charge of the particular building in front of which the area was constructed; that it was no part of his duty to look for holes, and it does not appear that his attention was evei-directly called to it, although he traveled there nights a great manyltimes. Whether he did or not, it was not his duty to bear in mind whether or not it was there. That the night was dark and there was no light, and that he being lawfully upon the ground that the jury had the right to determine that he was not guilty of negligence. The court, after thus stating the claims of the respective parties, stated that he left the question to the jury to determine whether or not the deceased exercised diligence, and whether he was guilty of negligence. As we understand the court, it stated the claims of the respective parties as presenting the law of the case, and that it was for the jury to determine which were correct as to the facts. That the negligence of Bond depended upon such determination. But again, we are inclined to the opinion that the request was broader than the defendants were entitled to under the authorities of Irvine v. Wood (51 N. Y., 224); McGuire v. Spence (91 id., 303), and Clifford v. Dam (81 id., 52). Other exceptions appear in the case, but none which we deem it necessary to'here discuss.

The judgment and order'should be affirmed.

Smith, P. J., and Bradley, J., concurred.

Judgment and order affirmed.


author: Childs, J. : Angle, J.:

text:
    ALBERTUS LARROWE, Respondent, v. HERMAN J. LEWIS, D. HORATIO LEWIS and HARRY LEWIS, Appellants.

      Contract for the sale ofraiVroad ties — when clear and explicit provisions thereof cannot he varied hy proof of a custom existing at the place and known to both parties.

    'This action .was brought by the plaintiff, as an assignee of one Reynolds, to recover the sum of $483.12, alleged to have been paid by Reynolds to the def end- • .ants, over and .above the amount which they were entitled to receive under a written contract entered into between them, by which Reynolds offered to ■give forty-seven cents for your (the defendants) white and yellow oak, and ikirty-seven cents for black ash, cherry, red oak, chestnut, butternut and slippery elm ties, piled up on the flats below the mill. ” The claim of over-payment was founded upon the fact that of the ties received some were “firsts’ and -some were “ seconds,” and it was claimed that only half the prices named were -to be paid for the latter.
    íüpon the trial the referee found, upon testimony received against the defendants’ objection ,and exception, that a known and established custom or rule .existed at the place in question relating to the inspection of railroad ties, by which a.tie. known as a “ second,” was taken at one-half of the price of a tie 'known as a “first,” that Reynolds and the defendants were familiar with this custom and rule, and that the defendants were bound to accept different prices for the different .qualities of ties as established by the said custom.

      Meld, that the referee erred in .so finding.
    'That, under the contract, the defendants were required to furnish and deliver to Reynolds merchantable and proper first-class railroad ties, and that Reynolds was required to accept all such ties and pay therefor the stipulated price, having, however, the right to inspect such ties.
    Appeal from ,a judgment in favor .of the plaintiff, entered in Livingston county, on the report of a referee.

      E. W, Packard, for the appellants.

      E. A. Wash, for the respondent.
    On the 23d day of May, 1881, one T. J. Reynolds made and -entered into a contract with the defendants, who were copartners ■doing business under the Arm name of Lewis Brothers, for the purchase of a quantity of railroad ties. The contract was in writing and of which the following is a copy:

      “ May 23, 1SS1.

      “ Messrs. Lewis Bros. :
    - “ Gents : — I will give 47 cents for your white and yellow oak, aud 37 cents for black ash, cherry, red oak, chestnut, butternut and slippery elm ties, piled up on the flats below the mill, you to give me all you can get during the season, suitable for rafting. Ties to - be counted and paid for before put in the river; you to put them in the river as directed by me.
    “ T. J. REYNOLDS.”
    “We accept your offer.
    “LEWIS BROS.”
    Subsequent to the execution of this contract, Reynolds paid to the defendants on account thereof the sum of $3,000, and accepted and removed from the defendants’ premises a large quanity of ties, and thereafter prepared a statement of the account between the defendants and himself, respectings such dealings, from which it was made to appear that he had paid to the defendants the sum of $483.12 over and above the contract-price for all ties received by him. This account and demand for such overpayment was assigned by Reynolds to the plaintiff, who brought this action to recover the amount thereof. The referee reported in favor of the plaintiff for the amount claimed and from the judgment entered on such report this appeal is taken.
   Childs, J. :

In the statement of account prepared by Reynolds, showing an overpayment for ties, the defendants were charged with the moneys paid on the contract and credited with the ties received as “ firsts ” and “seconds,” the “firsts ” at the price stipulated in the contract, and the “ seconds ” at one-half the contract-price, and thus the overpayment, to recover which this action was brought, is made to appear.

Upon the trial, W. H. Hallock, a dealer in railroad ties, was called as a witness by the plaintiff, and testified that the sized tie used by the Delaware, Lackawanna and Western Railroad was ‘ ‘ eight feet long, eight inch face and six inches thick, flattened with both sides of even thickness.” He was then asked “ how are the ties of less dimensions than the specifications of a road designated ? A. They are billed to railroad companies as second class tics, they are classified as firsts and seconds. Q. How do they differ as to price ? A. That depends on the railroad, on the Delaware Lackawanna and Western Railroad, and most railroads, a second class tie only brings one-half of the price of a first-class. On some branches of the Erie Railroad it is different. That is the rule on all the 'other railroads in western New York, of which I have any knowledge, except the New York Central.

It appeared from the testimony of the defendants, that they understood that it was the custom of railroad companies in the purchase of ties, to classify them as first and second cpiality. Upon this testimony the referee bases his report for the plaintiff, as appears by his findings of fact and conclusion of law stated in his report as follows: “Ninth. That said Reynolds and said defendants were familiar with the known and established customs and rules relating to the inspection of railroad ties in the locality of Portage and in western New York. Tenth. That according to the customs and rules aforesaid a tie known as “ second” is taken and established at one-half the price of a tie known as a “ first” of the same kind of timber or class. And I find as conclusions of law: First. That the defendants were bound to accept, under their contract with Reynolds, of an inspection and price of different classes of ties, according to the known and established rules and customs among Railroads and dealers in and manufacturers of railroad supplies and ties in western New York.

Upon these findings 'and this conclusion, judgment is directed for plaintiff for the amoutít, and upon the basis as claimed by him in the statement of account before referred to. It requires no argutaent in support of defendants’ claim that the judgment cannot be ‘sustained on the theory adopted by the referee, as disclosed in his ’findings. Under the contract in question, the defendants were ■required to furnish and deliver to the plaintiff’s assignor merchantable and probably first-class railroad ties of the kinds of timber specified, and he was required to accept all such ties offered and pay therefor the stipulated price, having the right to inspect such ties for the purpose of selecting such as he was required to accept in performance of the defendants’ contract. No element of uncertainty is found in the contract; the language employed is neither technical, indefinite or equivocal. Therefore,'the testimony quoted was imprbpeidy received under the objection and exception of the defendant, and such ruling would afford good ground for a reversal of the judgment, were it necessary to place our decision upon that ground. (Bradley v. Wheeler, 44 N. Y., 495; Lombardo v. Case, 45 Barb., 95.)

The referee, as we have seen, bases his decision upon a custom which he finds to be established among dealers in railroad ties, an$ because oi the existence of this “custom,” interpolates into the contract a prQvisiop for the purchase and sale of a class of ties not embraced therein, at a price different from that agreed upon by the parties The defendants had the right to contract for the sale of first class ties only, reserving all other qualities, if any, for some other market or purchaser, and the court had no power to extend this contract so as to embrace matters not within the contemplation of the parties, or covered by its terms. Such is the effect of this decision of the referee, and it finds no support in the language of the contract or the law pf the land,

Testimony was given'by the. plaintiff tending to show that the defendants, at the time of the inspection and delivery of the ties, consented to the classification “firsts” and seconds,” and that the ties should be accepted and paid for on that basis. The defendants controverted this testimony, and • insisted that they refused to acquiesce in such classification, but on the contrary, 'at all times, claimed payment at the contract-price for all ties accepted by Reynolds, and the referee, at the request of defendants, has found “that defendant, at times, claimed that under the said contract with Reynolds, he was obliged to pay them the price agreed upon for all ties suitable for railroad purposes, of any class, and also those sawed under his and Griffin’s suggestions, and defendants refused to and did not at times recognize or consent to the classifications of said ties so. made by said Tallman, and so notified said Reynolds and said Tallman.” This finding emphasizes the intention of the referee to rest his decision solely on the ground of “ custom,” as stated in his report, and to hold that this important modification of the contract was worked out by the “ custom ” referred to, and without the agency or consent of the parties thereto, this disposition of the case cannot be sustained upon any theory warranted by law. Other questions were raised on the argument of this appeal, but as a new trial must be had, it becomes ■unnecessary to examine" or pass upon the same, as they will necessarily be considered and disposed of on the trial.

The judgment should be reversed, and a new trial ordered before another referee, costs to abide event.

Haight and Bradley, JJ., concurred in the result.

Angle, J.:

The original written contract was executory and it has so been practically understood and construed by the parties. The law implies in every such contract for the sale of merchandise that it shall be of merchantable quality and such as will bring at least the average price. (Howard v. Hoey, 23 Wend., 350; Sprague v. Blake, 20 id., 61; Hamilton v. Ganyard, 3 Keyes, 45.)

The contract only covered railroad ties of that character. The vendors could not under it be required to deliver, nor could the vendee be required to accept ties of an inferior character. The controlling question in this case arises with reference to the ties known as “ seconds.” The evidence is conflicting as to the character of these ties, and as to the number of them that were “ seconds,” but the referee has found that certain numbers were “ seconds ” and we are not at liberty to reverse such finding upon the evidence. The referee was not specifically requested on behalf of either party to find upon the issue made by defendants5 denial of the allegation in the complaint to the effect that the defendants after the making of the written contract delivered to Reynolds certain quantities of railroad ties called “ seconds,” which Reynolds agreed to take of defendants at prices by them agreed upon. There was evidence upon both sides as to this issue ; on the part of the plaintiff tending to show that it was agreed upon at one-half the price of firsts ; ” on the part of the defendants there is evidence tending to show that at the time of the inspection and classification of the ties spoken of in the evidence the defendants insisted that under the contract they did not know anything about “ first ” and “ second ” class ties. On the part of plaintiff. Reynolds (his assignor), denies that anything of this kind was said in bis presence The referee finds upon that- issue (fifth finding of fact) that the ties were inspected and upon such inspection it was found that there were certain ties (specifying the numbers) known and accepted as firsts, and certain numbers (specifying them) were known and accepted as seconds or half ties.

The referee also finds with regard to Tallman’s inspection that the defendants in general acquiesced in the inspection made by him. But the subsequent findings and conclusions of the referee are not based upon and consistent with the above findings. He finds “ that the defendants referred to and did not at times recognize or consent to the classification of said ties so made by said Tallman, and so notified said Beynolds and said Tallman. See also findings /, g, h, in defendant’s ninth request to find, and the ninth and tenth findings of fact and the first conclusions of law which are examined in the opinion of Justice Childs and upon which he concludes that a new trial should be had, a conclusion in which I concur.

Judgment reversed and new trial ordered before another referee, with costs to abide the event.

Present. — Bbadlet, Angle and Childs, JJ.

Judgment reversed and new trial granted before another referee costs to abide event.


author: Smith, P. J.;

text:
    JOHN M. THORP, Appellant, v. GEORGE F. STEWART, Impleaded, etc., Respondent.

      Statute of frauds relating to contracts not to be performed within one year— when a verbal agreement to give land to a person, provided he would support the owner thereof d/uring his life, is not within it.

    Appeal from a judgment in favor of the defendant, entered in Allegany county, on the report of a referee.
    This action was brought to partition certain real estate, the legal title to which was in John W. Stewart, at the time of his death, intestate, the parties hereto being his heirs-at-law. The respondent set up as a defense to the action, that he was the equitable owner -of the premises sought to be partitioned, under a parol agreement made by said intestate, to the effect that if the respondent, his son, would stay with his father and mother while they lived, and aid in taking care of them, he should have-the title to the premises on the death of the survivor of them. Each of his parents is dead. The referee found that said agreement was made as alleged, and that it had been fully performed on the part of the respondent, and that the respondent is the equitable owner of the premises and entitled to a conveyance thereof, and that as such he is entitled to the surplus of the proceeds of the sale thereof in this action, after the payment of certain costs specified in the referee’s report. It seems that a judgment of partition was previously entered by default, in pursuance - of which a sale was had, and after such sale the respondent excused his default and was permitted to come in and defend.
    The court at General Term, after holding that the evidence was sufficient to support the finding of the referee, said: “ The appellant’s counsel contends that the agreement, being oral, is within that provision of the statute of frauds which declares void every agreement that, by its terms, is not to be performed within one year from the making thereof. The point was decided adversely to that contention in a similar case by the General Term of this court, in the fifth district. (Dresser v. Dresser, 35 Barb., 573.) It was there held that a verbal agreement to provide for a person during his life is valid, notwithstanding the statute, inasmuch as he might die within a year, and the statute only extends to agreements which cannot be' performed within one year. Mr. Abbott, in his Digest (vol. 2, p. 243) says that on a subsequent appeal the Court of Appeals were divided on the question, hut, as the case is unreversed, we feel bound to follow it.

      “ The judgment should be affirmed, with the costs of this appeal.”

      George W. Daggett, for the appellant.

      E. W. Packard, for the respondent.
   Opinion by

Smith, P. J.;

Haight, Bradley and Lewis, JJ., concurred.

Judgment affirmed, with costs.


author: Haight, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. AMARIAH H. BRADNER, Appellant.

      Practice on appeal in criminal cases— the ease cannot he settled hy the stipulation of the attorneys — it must he settled hy the judge and filed with the clerk — Code Criminal Procedure, secs. 456, 459, 539.
    Appeal from a judgment entered upon a verdict rendered at the Livingston Court of Sessions convicting the defendant of the crime of grand larceny in the first degree; ahd also from an order denying a motion for a new trial made upon the minutes of the court and affidavits of newly discovered evidence; also an appeal from an order of the same court, dated the 23d day of June, 1886, denying a motion to vacate the judgment and grant a new trial on the ground of newly discovered evidence; the defendant also moves for a new trial in this court on the ground of newly discovered evidence. The people moved to dismiss the appeal from the order dated the 23d day of June, 1886, upon the ground that such an order was never made or entered.

      The court at General Term said: “The appellant, in May, 18S5, was indicted by the grand jury of Livingston county for the crime of grand larceny in the first degree. The defendant, upon affidavits tending to show that Ralph T. Wood, the counsel assisting the district attorney in the prosecution of this case, appeared before the grand jury and gave advice in reference to the indicting of the defendant and how the indictment should be prepared, moved to dismiss the indictment. Affidavits on the part of the district attorney and Mr. Wood, were read in opposition, which tend to show that Wood appeared before the grand jury as a witness and was sworn as such; that he gave no advice other than that which was given to the district attorney outside of the grand jury room. The opposing affidavits satisfactorily explain the conduet of Mr. Wood before the grand jury and the motion to dismiss the indictment was properly denied.
    “ There is no other question presented by the appeal book which we can properly consider unless it is the motion of the district attorney to dismiss the appeal from the order dated June 23d, 1886. The appellant caused to be prepared and settled a bill of exceptions. It states that the district attorney offered certain evidence and asked certain questions, which were objected to by the defendant; that the objection was overruled and exception taken. It does not, however, state whether such evidence was in fact received or what it was, so that we are unable to determine whether or not the defendant was prejudiced. There is also printed in the appeal book what purports to be the minutes of the stenographer taken upon the trial. They are not, however, made a part of the bill of exceptions; they have not been signed or settled by the judge presiding at the trial and have no business in the appeal book. It is true that the attorneys have stipulated that the minutes or notes of the stenographer may be incorporated in or attached to the judgment roll required to be made up by the clerk by section 485 of the Code of Criminal Procedure; and that the minutes of testimony so incorporated or attached to the judgment roll may be referred to for the evidence to which exceptions were taken on the trial as appears from the bill of exceptions filed in the clerk’s office; and that the judgment-roll with the minutes of testimony so incorporated or attached shall have the same force and effect as though the notes had been made and settled including the testimony given on the trial and attached to the judgment roll. But the attorneys are not authorized to settle a case in a criminal action. A judgment of conviction in a criminal action cannot be got rid of by the default of the district attorney, for a judgment of reversal can only be • given upon argument which satisfies the appellate court that the judgment should be reversed, even though the district attorney failed to appear in the case. (Code of Crim. Pro., sec. 539.) It is consequently provided that a bill containing the exceptions mxist be settled and signed by the presiding judge and filed with the clerk. (Sec. 456.) And again, at the time appointed, the judge must settle and sign the bill of exceptions. (Sec. 459.) Whether these minutes, as printed, are correct or not is not even shown by the stipulation of the attorneys. In some instances they are at variance with the bill of exceptions as settled and signed by the judge. It does not appear whether the whole or a part of the minutes have been printed; and where the contention is that the verdict is against the weight of evidence it should appear that the case contains all of the evidence. (Spence v. Chambers, 39 Hun, 193.)
    £' Por the same reasons the motions for new trial on the ground of newly discovered evidence must fail. The evidence not being before us, we cannot well judge as to the materiality or importance of the newly discovered evidence, or whether it is cumulative or would be likely to affect the result in case a new trial should be granted.”

      James Wood and Jueius W. Bangs, for the appellant.

      George W. Daggett, district attorney, and Ralph T. Wood, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., and Bradley, J., concurred.

Judgment and order affirmed and motion for new trial denied, and proceedings remitted to the Court of Sessions” of Livingston county to proceed thereon. *


author: Bradley, J.;

text:
    LIZZIE GRISWOLD, Respondent, v THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Action for an injury caused by the negligence of the defendant — admissibility of evidence of medical experts as to the probable recovery of the plaintiff

    Appeal from a judgment, entered on a verdict in favor of the plaintiff for $2,000 rendered at ihe Orleans Circuit, and from an order denying a motion, made by the defendant on a case and exceptions, for a new trial.
    The action was brought to recover damages for personal injuries alleged to have been suffered by the plaintiff and to have been occasioned by the negligence of the defendant.
    The court at General Term, after reviewing the evidence and holding that it was sufficient to justify the jury in finding that the plaintiff was free from contributory negligence, and that the injury was caused by the defendant’s negligence, said : “ The amount of damages which should be allowed to the plaintiff, when it was determined that she was entitled to recover was dependent upon the extent and effect of the injury which she received on the occasion from the cause before mentioned.
    “ This was also a question of controversy and of conflict of evidence. She had, some years before, been afflicted with a physical difficulty or disease from which she had not entirely recovered, but which was liable still to afflict. And there was some medical expert evidence that the condition of which she complained may have come from such previous organic trouble, while the evidence of the members of the medical profession who had examined and treated her was to the effect that the injury in question caused a serious physical con. dition attributable to no other cause, and that her previous infirmity was not likely to develop symptoms which followed such injury. Much evidence was given by the plaintiff and others on this subject, in view of all which we are not able to say that the jury over estimated the amount of damages she had sustained and was entitled to recover. A medical witness on the part or the plaintiff was asked a question which embraced more, but in view of what followed, and of the answer given, it may be treated as this inquiry: ‘From what you know of the condition of this-woman from the time this existed and your examination, what is the probability of her recovering from the injury?’ This was objected to as ‘speculative and hypothetical ’ and exception was taken to the ruling permitting the answer. The witness answered: ‘ It is impossible for a man to foretell what the result of such a trouble would be.’ And the further question, ‘ "What, in your judgment, will probably be the result as to whether she will probably recover from it or not ? ’ being asked, followed by the remark of the court: ‘ lie simply asks you whether you think she will recover,’ the witness answered: ‘ Judging from the symptoms as they are manifest, I think there is no evidence of recovery. There is not much probability under the circumstances.’ The defendant’s motion to strike out the latter part of the answer having been denied, exception was taken. And another medical witness was asked: ‘ Tell what, in your judgment, would probably be the result, whether she would probably recover from it?’ The objection to which was overruled and exception taken. The witness answered : ‘ I should think it was rather improbable that she would recover entirely; taking into consideration the time that has elapsed and the fact that she was not better now than she was immediately after the injury, it is my idea that she would not get better.’ These witnesses had, by examination and treatment of the plaintiff, become somewhat familiar with her condition, and the symptoms which represented it, up to the time of the trial which was had one year and six months after the injury. It was competent to show the consequences which would follow in future from such cause, and as bearing upon that, we think it was proper to take the judgment of medical experts as to the probable result. (Lincoln v. Saratoga and S. R. R. Co., 23 Wend., 425; Filer v. N. Y. C. R. R. Co., 49 N. Y., 42; Strohm v. N. Y., L. E. and W. R. R. Co., 96 id., 305; Buel v. N. Y. C. R. R. Co., 31 id., 314.)
    “ By the questions to which the objections were taken, the witnesses were called upon to express their judgments of the probable result of the particular injury in question, not what might follow it, nor whether she might or might not recover, but whether, in their judgment, she would probably recover from the effects of the injury. The future consequences of an injury must have a degree of probability amounting to a reasonable certainty to be the basis of the estimate of damages, and the evidence of such results must necessarily rest somewhat upon the judgment of experts. And while they cannot express with absolute certainty the developments and future results which will come from the cause and its immediate effects, experience may enable the witnesses to intelligently have and express their opinions of the probable continuance and the ultimate consequences of a defined physical condition resulting from an injury.
    “ In the Strohm case the court are not understood by us to have held that the opinions of medical witnesses of the probable future effect of an injury were not competent, but that the error of the trial court there was in permitting the witness to state what a certain kind of injury might, in his opinion, develop in future; that it is not sufficient that certain consequences may or are likely to follow, because evidence to that effect is merely speculative. This view of that case is strengthened by the fact that Filer v. New York Central Railroad Company (49 N. Y., 42) is cited there by the court, without criticism. The inquiry to be competent must relate and bo confined to the particular injury in question and to the consequences attributable to it which will follow and affect the person who suffered it. That was the inquiry in this case. And while the answer following the first question, that it was ‘impossible for any man to foretell what the result of. such, a trouble will be/ evinced some difficulty on the part of the witness in determining the future consequences of the plaintiff’s injury, we think it did not disqualify him to express his judgment on the subject, if he had any. The mere matter of degree of intelligence with which an opinion is expressed, and the difficulty of doing it, unless so great as to exclude the opportunity for medical opinion, goes to the value rather than to the competency of the evidence. No other question seems to require consideration.”
    T7. II Adams, for the appellant.

      Isaac 8. Signor, for the respondent.
   Opinion by

Bradley, J.;

IIaight, J., concurred; Lewis, J., not sitting.

Judgment and order affirmed.


author: Bradley, J.,

text:
    IDA C. L. PURDY, Respondent, v. JOSEPH W. WRIGHT, AMANDA WRIGHT, his Wife, JAMES WRIGHT, HANNAH WRIGHT, his Wife, PHILETUS S. WRIGHT and JENNIE WRIGHT, his Wife, Impleaded with Others, Appellants.

      Will — when no trust is created, — when lands descend to the testator’s heirs subject to a power of sale — when an action for partition may be maintained although the power of sale is given to the executors of the testator.

    Appeal from a judgment, entered in Yates county, on a trial of this action by the court without a jury.
    The action was brought for the partition of certain lands, of which it is alleged that the plaintiff is seized of one undivided one hundred and sixty-eighth part, as tenant in common with the defendants. The controversy, to some extent, arises upon the construction and effect of the provisions of the will of David Secor, made in 1852 and probated in 1860, when letters testamentary were issued to the executors nominated by him.
    By the seventh and eighth clauses of the will he gave the executors full power to sell and convey his real estate situate in the town of Benton, Yates county, and directed them to sell it “with all convenient speed,” and bequeathed the proceeds of the real estate to his children, named as follows: three-eighths to his son Minor, one-eighth to his son Philetus, and bequeathed to the executors, in trust for each of the four daughters, Emeline, Adeline, Almira and Cordelia, one-eighth, and directed the executors to invest it in real estate, for the sole use and benefit of each daughter during her natural life, with remainder in fee to'the heirs-at-law of her body; and in case of the death of Cordelia before she arrived at the age of twenty-one years, without issue, that the share bequeathed to her should go to his surviving children. The executors never executed the power of sale given them by the will. The testator left surviving him eight children, and those of them, other than Cordelia, conveyed their interest in the lands. And such conveyances were made within the period from 1861 to 1882, inclusive.
    The daughter Cordelia died in 1870, over the age of twenty-one years, without issue. Her heirs-at-law were her brothers and sisters and tlie children of a deceased brother and sister, one of whom is the plaintiff, who inherited one-twenty-first part of the real property of which she died seized; And as it is alleged that Cordelia took by descent from her father title to one-eighth part of the premises in question, that allegation, if supported, would make the plaintiff’s share in them one undivided one-hundred-and-sixty-eighth part. It is contended on the part of the appellants that by the provisions of the will a trust was created which vested in the executors the title to these lands.
    The court at General Term said: f!Ve think they took no title. The sale directed was not for the benefit of legatees, within the meaning of the statute, and there was no trust created to receive rents and profits of the lands and apply them, etc. (1 R. S., 728, § 55.) The power to receive the rents and profits for some of the purposes mentioned in the statute is requisite to constitute a trust within the provision last mentioned. (Leggett v. Perkins, 2 N. Y., 297.) It is not necessary to express in the terms of the instrument the provisions of the statute, but sufficient must appear to permit a construction to embrace them. In Morse v. Morse (85 N. Y., 53) the element of power for the receipt and application of the rents and profits of the land in question was in the provisions of the will, and for that reason a trust was supported. And the same remark is applicable to Vernon v. Vernon (53 N. Y., 351). In respect to the lands of the testator in the case at bar the executors had only power of sale, and the lands descended to his heirs subject to the execution of the power. (1 R. S., 729, § 56.) The power and direction given by a will to sell lands and distribute the proceeds operates as a conversion of the realty into personal estate. (Arnold v. Gilbert, 5 Barb., 190.) But that may not be so when the direction is to invest the proceeds in real estate.
    Then the proceeds have the character of the property in which the investment is directed to be made, wheu the direction and its purpose are valid. (Lorillard v. Coster, 5 Paige, 172-218.) The beneficiaries may elect to take the land and thus dispense with the execution of the power. (Prentice v. Janssen, 79 N. Y., 478.) The question arises whether an action for partition will be entertained under the circumstances of this case. It might not ordinarily be permitted in behalf of a party who had the bare legal title to a share in property which was subject to an operative power of sale for the reason that no substantial benefit would result from such an action. That was the situation presented in McGregor v. McGregor (22 N. Y. W. Dig., 305), inasmuch as the alleged suspension of alienation was there held not to be illegal. But here the executors were vested with the power of sale more than twenty-five years ago. And most of the parties interested have taken and conveyed their interests and title in the property; and, so far as they could, have elected to dispense with the execution of the power of sale. The lapse of time would seem to permit the inference of acquiescence on the part of the executors in such appropriation and disposition of the property by the beneficiaries. It seems that they have sought so far as they could, to make a distribution of the property, and apparently have substantially accomplished it, except as relates to a portion of the. share of the daughter Cordelia. And thus have rendered the execution of the power of sale by the executors impracticable. (Hetzel v. Barber, 69 N. Y., 1.)
    We think that the legal title to the alleged portion is in the plaintiff, and that the situation presented enables her to maintain the action. No other question requires consideration.
    The judgment should be affirmed.

      Struble da Bteviart, for the appellants, Joseph W. Wright and wife.

      William T. Morris, for the appellants, James Wright, Philetus S. Wright, and their wives.

      J. F. ParJchurst, for the respondent.
   Opinion by

Bradley, J.,

Smith, P. J and Haight,'J., concurred; Barker, J. not voting.

Judgment affirmed, with costs.


author: Hardin, P. J.:

text:
    RICHARD MURPHY, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      negligence — duty of a railroad company to use ordinary care and caution to prevent injury to the property or employees of another company, while using Us tracks.

    This action was brought by the plaintiff to recover damages for injuries sustained while in the discharge of his duties as a car repairer of the Rome, Watertown and Ogdensburg Railroad Company in its yard, about a quarter of a mile from the tracks of the defendant, The New York Central and Hudson River Railroad Company. The plaintiff, who was in the employment of the Rome, Watertown and Ogdensburg Railroad, was working at the rear of the last of two of its cars ■standing on a side track, a red flag having been previously nailed by him on the front end of the first car to indicate that it should not be meddled with. The railroads connecting at this place with the Rome, Watertown and Ogdensburg road did not receive the cars of the latter road until they had been repaired by its employees.
    At a time when the plaintiff had his arm around the bumper of the car, and was putting his full weight on the last thread of the nut so as to bring it home to its place, the car was pushed against another standing just behind it breaking the plaintiff’s arm. The movement of the car was caused by its being struck by another car thrown against it by a shifting engine of the defendant company.

      Held, that the questions as to whether the injury was occasioned by the negligent conduct of the employees of the New York Central and Hudson River Railroad •Company, and as to whether the plaintiff was free from contributory negligence, were properly left to the jury and that a verdict in the plaintiff’s favor would not be disturbed.
    That the negligence which produced the injury was not that of a co-employee <of the plaintiff.

      Appeal from a judgment entered upon a verdict taken at Oneida Circuit, and from an order denying a motion made upon the minutes for a new trial. The verdict was for $1,000 in favor of the plaintiff.
    The plaintiff was injured on the 4th of September, 1883,while in the discharge of his duties as car repairer of the Rome, Watertown and Ogdensburg Railroad Company, in their yard, about, a quarter of a mile from'the tracks of the New York Central and Hudson River Railroad Company. He “ was working upon amattle car that was marked on both sides; ‘ Broken jaw.’ It stood upon the south track; it is the south branch of the yard.” He testified that he nailed up his flag, and it was a part of his practice and duty in commencing that kind of work to nail up a flag, and that the red flag thus nailed up “ indicates that there is danger there, and nothing is to meddee with it; that flag would stop a train and hold it upon a track for any man; I laid this flag right on the side sill, and drove a nail into the wood and bent it over it; I nailed it on the front cattle car; there were two cattle together.” He testified he was working on the second car, on the cars south-west end of it, and the flag was upon the north-east corner of the east car, and that he worked at it until noon and then went to dinner, and commenced again at one o’clock, and that Hubbard, an employe of the Rome, Watertown and Ogdensburg Railroad Company, was working with him. He also testified there was a car back of him ; “ the bumpers did not clear more than about six inches; I had my arm around the bumper, and I was putting my full weight on the last thread of the nut, so as to bring it home to its place with my right arm; as I did that it was struck by a car above; heard a collision and my arm was broken ; a car being thrown in from the other end caused the collision, and caught me. between the two bumper jaws and broke my arm off; the minute that ever the cars struck they loosened apart, and then I stooped down and walked down towards the bank on the south side,” and he testified that he “ was in no way employed by the New York Central and Hudson River Railroad Company, nor in any way subject to their orders; I was hired and paid by the Rome, Watertown and Ogdensburg Railroad Company; that day-the shifting engine of the New York Central was in the yard doing shifting; I don’t think she was there when I went to dinner; I think she stood there when I came back; upon the track called the grain track.”

      It appeared that the cars that come down the Rome, "Watertown and Ogdensburg Road are not transferred until they are repaired. They are repaired by the Rome, "Watertown and Ogdensburg Road. The other roads will not accept them until repaired by the Rome, Watertown and Ogdensburg Road.

      C. D. Prescott, for the appellant.

      McMahon <& Gurtin, for the respondent.
   Hardin, P. J.:

In the course of his charge to .the jury, the learned judge said, viz.: “ The main question, as it seems to me in this case, upon the subject of negligence of the defendant, arises upon the proposition as to whether or not the employees of the defendant did something to the car that came down upon the ear or cars at which the plaintiff was at work and produced the collision, and then, if they, by some act of theirs, caused this car to come down there and collide, then the question would be whether or not such act was done without the exercise, on the part of the employees of the defendant, of reasonable care in the management of the engine or cars that they were managing. And by ‘ reasonable care ’ is meant such care as a person of ordinary prudence should exercise.”

We are of the opinion that the evidence produced at the trial in regard to the acts and circumstances immediately antecedent and attending the injury of the plaintiff, called for-a submission to the jury of the question of fact indicated in the language from the charge which we have just quoted. There was a conflict in the evidence. It was for the jury to determine whether there was negligent conduct on the part of the employees of the defendant on the occasion of the injury. The verdict of the jury finds the facts favorable to the plaintiff in that regard. We think the evi dence was such that we ought to accept their verdict as controlling upon that question. (Bills v. The New York Central, 84 N. Y., 10; Canfield v. The Baltimore and Ohio, 93 N. Y., 537.) Second. Whether or not the plaintiff was guilty of contributory negligence was a question of fact for the jury. While we recall the general rule that it is a part of the plaintiff’s case to establish by direct or indirect, positive or circumstantial evidence, the freedom on his part from contributory negligence causing the injuries sustained, we think, upon the evidence produced in this case, it was for the jury to determine whether he was guilty or free from contributory negligence. If the flag was up, it was the duty of the defendant’s servants to observe it and govern the movement of their shifting engine accordingly. "Whether the plaintiff was in the exercise of ordinary care in resting his arm on the bumper while in the closing acts of his engagement, was a question for the consideration of the jury, and the evidence is such in respect to that circumstance that the question was one of fact for the jury. The court could not properly rule, as a matter of law, that the plaintiff was guilty of contributory negligence at the instant the injury came to him. Having placed the flag in the position that he testifies as a warning, he had a reasonable reliance that no cars would be thrown against the one upon which he was engaged. It was for the jury, in view of all the facts relating to the position of the plaintiff at the time the injury was received, to say whether or not his position was unreasonable, careless, or such as in the exercise of ordinary care and prudence was proper.

The trial judge was pressed to hold, as a matter of law, that it was the negligence of the co-employees of the plaintiff which produced the injury, or contributed thereto. Reference was had to a rule of ■the company in whose service the plaintiff was, to the effect, viz : Station agents are held responsible for cars left at their stations, and must see that they have brakes set and properly secured against the possibility of being blown on the main track.” The principal object of this rule would seem, from its language, to prevent cars being set in motion by wind. No reasonable claim can be made upon the evidence that the injuries in question were produced by the action of the wind. On the contrary, the verdict of the jury, under the charge submitted to them, necessarily finds that the injuries were produced by the servants of the defendant moving a car which impinged upon the one the plaintiff was to work upon.

We think it was not unreasonable for the plaintiff to assume that the flag which he had nailed to the car would be seen by the servants of the defendant, and the warning given thereby would be ■ observed. (Newson v. The New York, Central, 29 N. Y., 383; Ernst v. The Hudson River, 35 id., 9; McGrath v. The New York Central, 63 id., 522.) We are of the opinion that the servants of the defendant, at the time the injury was received in the operation of the defendant’s cars, although in and upon the track of the Rome, Watertown and Ogdensburg road, were not fellow servants or co-employees with the plaintiff; they were not servants of the same master. (Wood’s Master and Servants, § 424, p. 807; Svenson v. The Atlantic Steamship Company, 57 N. Y., 108.) In that case it was said by Earl, J., viz : “ They were not the servants of a common principal in any sense, and they were not strictly engaged in the same employment. The duties of the one were confined to the steamship, and of the other to the lightei. Hence, this case does not fall within the rule that an employer is not responsible for an injury occasioned to one employee by another engaged in the same general services or undertaking.” (See, also, Smith v. New York and Harlem Road, 19 N. Y., 132.) In that case Selden, J., says: “ The rule applies only where the action is brought for an injury to a servant or agent against the principal, by whom such servant was himself employed.”

It is insisted by the learned counsel for the defendant “that unless the plaintiff’s injuries were the result of the acts of defendant’s servants, done and performed knowingly, and with a design or intent to injure the plaintiff * * * the plaintiff should not maintain this action.” It appeared that the plaintiff was in the discharge of his duty, rightfully, upon the premises of the Rome and Watertown road, at the time he received the injuries in question. It also appears that the defendant’s engine and servants had entered upon the Rome,Watertown and Ogdensburg track, in pursuance of an arrangement or custom to gather cars from that road to be conducted over the road of the defendant. While upon the road of the Rome, Watertown and Ogdensburg road it was the duty of the defendant and its servants and agents to use ordinary care and caution to prevent injuries to the property or servants of the Rome, Water, town and Ogdensburg road. As was said by Andrews, J., in Sutton v. The New York Central Railroad Company (66 N. Y., 248), “ the defendant could not act so as to mislead them (persons upon the track of the defendant) and subject them without notice to perils from which they had a right to suppose they were exempt, without responsibility in case of injury.” We think that case does not support the contention of the appellant. We think the case in hand falls within the principle laid down in Smith v. The New York and Harlem Railroad Company (19 N. Y., 127). We are of the opinion that no error was committed at the trial, and that the verdict should stand.

The judgment and order should be affirmed, with costs.

Boardman and Follett, JJ., concurred.

Judgment and order affirmed, with costs.