author: Bockes, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent, v BENJAMIN B PARKER and Others, Assessors, etc., and HENRY A. ENNIS, Town Clerk, Appellants.

      Review of assessment — 1880, chap. 269 — the title of the assessors to their office cannot he assailea m proceedings under it — only errors of over-valuation and inequality are to be reviewed.

    Upon a hearing at Special Term of this proceeding, which was instituted to review.by certiorari the assessment of the property of the relator by the defendants, as assessors of the town of Highland, it appeared from the petition, return and evidence taken by a referee appointed for that purpose that the respondents Parker, Courtright and Bogert, respectively, claimed title . to the office of assessor by election thereto, which election was duly certified, entered and verified on the town records kept by the town clerk, and that they had qualified and acted as such assessors under their election, and that Kilpat-rick held by appointment, made August, 1886, to fill a vacancy alleged to have been caused by Courtnght’s removal from the town.
    The Special Term held that Parker was not elected to the office of assessor, and was not an assessor of the town in the year the assessment. was made; that Courtright removed from the town in 1886, and was not an assessor on September first of that year when the roll was verified by him and Parker, that in making and completing the assessment-roll the law was substantially disregarded, and that the oath was not made by any person who was an assessor at the time of making it, that the assessment was illegal and void and should be stricken from the roll, and that no proceedings should be taken to collect it.

      Held¡ that it was not intended by the act (chap. 269 of 1880), under which this proceeding was taken, to extend the remedy by certiorari so as to embrace the ground of error, charged and found against the defendants, on which the deci. sion was m'ade,.,.
    That the act contemplated the issuing of the writ to officers (not to persons other than officers; to mere usurpers in office), with the right to make a new or reassessment and to correct illegality and errors in an assessment by assessors
    That the decision should be reversed
    The Special Term also found that Bogert, who was an assessor, was prevented by Parker from taking part in fixing the valuation and making up and verifying the roll

      Held, that, even if it were admitted that such action was an “illegality,” of which the relator might in this proceeding complain, it could not avail itself of it as it did not appear that it was in any way injured thereby, as two assessors could make an assessment, and it was not shown that the assessment would have been altered had Bogert been allowed to act.

      Appeal taken by the assessors, Parker, Courtnght, Kilpatrick, and the town cleik, Ennis, from the final order m proceedings, under chapter 269, Laws of 1880, to review the assessment, of the relator’s real estate in the town of Highland,' Sullivan county , also from the order granting the writ, also from the order appointing the referee and overruling the objections to making said order, also from the order refusing to modify the final order
    This proceeding is by certiorari, under the Law of 1880 (chap 269), a special act providing for a review of assessments made for the purpose of taxation. The writ was directed to Parker, Courtnght, Bogert and Kilpatrick, “• assessors, or claiming to have been assessors ” of the town of Highland, in 1886, when the assessment complained of was made, and to Ennis, the town clerk. Each of these persons made answer to the writ by separate returns
    The case was ultimately brought to a hearing at Special Term upon the petition , the returns, and also the evidence taken before a referee appointed for the purpose by an order of reference, which order declared that it was not referred to take evidence as to the value of the relator’s property, which was assessed on the roll, or of other property m the town.
    It was made to appear from the returns and the evidence laid before the court, that Parker, Courtrigkt and Bogert, respectively, claimed title to the offiee of assessor by election thereto, which election was duly certified, entered and verified on the town records kept by the town clerk, and that they had qualified and acted as such assessors under their election ; also, that Kilpatrick held by appointment made August, 1886, to fill a vacancy alleged to have been caused by Courtright’s removal from the town
    The Special Term, without considering the question whether the assessment against the relator was or -was not erroneous by reason of over-valuation, or was or was not unequal m that it was made at a higher proportional valuation than other property on the roll — these questions being eliminated from the case — found and held that Parker was not elected to the office of assessor, and was not an assessor of the town m 1886 , that Courtnght had removed from the town m August, 1886, and was not an assessor on the first of September -of that jear, when the roll was verified by him and Parker, and .that Bogert, who was assessor, was prevented by Parker from taking part in fixing the valuation and making up and verifying the roll, and it was adjudged that in making and completing the said assessment-roll the law was substantially disregarded and the oath to said assessment-roll was not made by any person who was an assessor at the time of making said oath, and that the assessment of the relator’s real estate appearing on said roll was illegal and void, and the assessment of the relator’s real estate was ordered and adjudged to be stricken from the said assessment roll; and that no. proceeding should be taken to enforce the collection of any tax that might have been imposed or levied on said assessment. The defendants (except Bogert) entered exceptions and appealed from such decision and order.

      John F. Anderson, for the appellants.

      P. & C. F. Cantine, for the respondent.
   Bockes, J.:

It will be observed that the Special Term made the proceeding, one in the nature of a quo warranto to the extent of an inquiry into the assessors’ title to the office of assessor, respectively j although each held a formal record title thereto duly certified and entered in the records of the town kept by the town clerk, and had qualified according to law and was also in the actual exercise of the duties of the office. The decision impeached the record which conferred upon these persons, in due form of law, the right to the office and adjudged Parker and Courtriglit who made up, signed and verified the assessment-roll, to be simply naked usurpers; and this although they claimed the office by virtue of formal record title, and were by tacit consent of the town in possession of the office, exercising its duties.

Thus the decision was put on the ground that these persons were mere intruders,, having no better right to make up the assessment-roll than had any other two residents of the town who should on their own volition simply, assume to go through with the process of levying and collecting taxes from its property owners. Concede this and the case was not one for relief by certiorari, which goes to inferior courts or tribunals and to judicial or quasi judicial officers to review and correct erroneous decisions or proceedings had or taken by them in tbeir capacity as officers, not to annul the action of naked intruders, on the ground that they were simply usurpers. In this latter case a party whoso property should be taken from him through the illegal and wrongful action of such intruders would have a perfect remedy by suit in trespass or trover or replevin; and it is a general rule, that relief by certiorari is admissible only when there is no other available and adequate remedy. The exception to this rule exists only when the proceeding by certiorari is given by virtue of a special statute and it may too be observed that the very issuance of the writ to officers to review and correct their actions, implies this right to act legally as officers within the scope of their authority.

It is not, as we think, intended by the act of 1880, under which this proceeding is taken, to extend a remedy by certiorari so as to embrace the ground of error charged and found against the defendants, on which the decision here is made to depend. That act contemplates the issuing of the writ to officers (not to persons other than officers; to mere usurpers of office) with right to make a new or reassessment, and goes to correct illegality and errors in an assessment by assessors. The errors enumerated in the act of 1880 are over-valuation and inequality in the assessment. Such errors (as the case is now presented), are not here matters for consideration. The illegality ” spoken of in the act, as we conclude, embrace such illegal action as the assessors may commit as officers, as assessors having the general right and authority to assess persons and property for the purpose of taxation; as, for instance, an assessment for property not owned by the person assessed for it, or which is exempt from taxation and the like. Our views of this case iis above expressed are, as we think, fully sustained by the decision in the People ex rel. Corwin v. Walter and others (68 N. Y., 403.)

But it is urged, further, that Bogert was prevented by Parker from taking any part 'in fixing the valuation of property, and that on the review day the relator appeared and applied to have the assessed value of its property appearing on the roll reduced, which application was denied ; and that Bogert did not act thereon for the reason that Parker excluded and prevented him from acting, and such action by Parker is also insisted on as an illegality,” of which the relator may m this proceeding complain. Admit this, although we do not so decide, and how then does it appear that the relator was thereby injured. Injury must be shown or the alleged illegality will be unavailing. (See section 1 of act of 1880.) Two assessors may make the assessment, and it does not appear that the assessment against the relator would have been any less, or, indeed, in any way affected had Bogert acted with the other two throughout.

The decision and order appealed from must be reversed and the proceeding sent back to the Special Term for other and final disposition. Fifty dollars costs of appeal and disbursements to be allowed to the appellants in the final order to be made herein.

Learned, P. J., and Landon, J., concurred.

Order reversed and proceedings remitted to the Special Term for final decision, fifty dollars costs of appeal to be allowed appellant on final order


source: Caselaw Access Project

author: Bockes, J.: LáNdoN, J.: LeaeNed, P. J.

license: Public Domain

text:
    ALBERT DINGS, Respondent, v. ROSELLA M. GUTHRIE and SAMUEL GUTHRIE, Appellants.

      Statute of limitations — effect of an agreement between the parties to a note that a payment made thereon shall not take effect until a subsequent time.

    This action was brought upon a promissory note made by the defendants, . dated April 1, 1874, payable one year from date. There'were four indorse-ments of payments upon the note, the last being of fifteen dollars on April 1, 1879. It appeared that the fifteen dollars were handed to the plaintiff, to be applied on the note, by one of the makers, two or three days prior to the first day of April, with directions to indorse the payment as of April first, which was done. This action was commenced March 30, 1885.

      Held, that under the arrangement made by the parties, the delivery of the fifteen dollars to the, plaintiff did not take effect as a payment on the note until April first, and that it saved the case from the effect of the statute of limitations. (Learned, P. J., dissenting.)

      'Sharpley v. Albert (42 N. Y., 443) and McDonnell v. Blanchard (5 Weekly Dig., '410) distinguished.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, rendered at the Washington Circuit.
    The action was brought to recover upon a promissory note made by the defendants.for $500, datod April 1, 1874, and payable one year from date. The defense was the statute of limitations. There were four indorsements of payments upon the notes, the fast of which was of fifteen dollars, April 1, 1879. The action was commenced March 30,1885. The verdict was for the plaintiff.

      L. Fraser, for the appellants.

      Hull & Whitman, for the respondent.
   Bockes, J.:

There was a sharp conflict of evidence as to the year when the last payment of fifteen dollars indorsed upon the note was made. The proof 'on the part of the plaintiff made the payment in 1879 ; on the part of the defendants 1878. The jury, by the verdict, found it to have been made the former year. If made as indorsed, April 1, 1879, the action was in time to escape the statute, having been commenced March 30, 1885. The facts as to that payment, as testified to, are as follows: The fifteen dollars were handed to the plaintiff, to be applied on the note, two or three days prior to the first of April, by the defendant Samuel Guthrie, who, in substance and effect, directed it to be indorsed as of the first of April, and it was so indorsed. As to this direction there was some conflict in the proof. The judge charges that it was entirely competent for the parties to make an arrangement that the payment should be made as of that day, and that if they so agreed then it would be of the same effect as if made on that day. To such charge there was no exception, and the verdict was for the plaintiff. The effect of the arrangement was that the money should be applied on the note April first, and not before. It would not, therefore, take effect as a payment until that day, and this at the direction of the defendant, who, in handing over the money, might attach such terms and conditions to its application as he should deem proper, and it would take effect according to such terms and conditions. The case of Sharpley v. Abbott (42 N. Y., 443) is decided on the question of estoppel, and like McDonnell v. Blanchard (5 Weekly Dig., 410), differs entirely from this on the facts. We are of the opinion that the arrangement or agreement, if made, would save the case from the effect of the statute. On the question whether it was made the jury have found in the affirmative.

It is urged that there is no evidence that the defendant, Kosella M. Guthrie ever made or directed the making of any payment on the note. On this subject the judge charged the jury as follows: When two persons make a note, even husband and wife, one cannot, by going and making a payment without the knowledge of the other, keep the note alive as to the other; but, if he makes the payment in behalf of the other or with the knowledge and approval of the other, then it is the same as if made by that other.” To such charge there was no exception and, indeed, it was, in law, entirely sound. But there was some evidence given tending to show that the payment by the husband was made under the sanction and approval of Ins wife, as her agent, and, indeed, by fair inference, by her direction. (Winchell v. Hicks, 18 N. Y., 558; First Nat. Bank v. Ballou, 49 id., 155; Munro v. Potter, 34 Barb., 358.) No question was raised on the trial as to Mrs. Guthrie’s liability because of her being a married woman, nor is this question now raised on the defendant’s points submitted to us. It should be observed, perhaps, that it does not appear that there was any motion for a new trial made on the minutes of the court or otherwise.

The judgment should be affirmed, with costs.

LáNdoN, J.:

The payment ot fifteen dollars four days before tne usual interest day, was agreed to be applied and indorsed as upon the interest day. It was not intended as an agreement to extend the statute of limitations or avoid its effect, but to promote convenience of computation. Not to give to this payment the date the parties agreed it should bear, would be to prevent the honest intention of both parties, and to enable the defendant to accomplish a wrong that he did not at the time deem himself capable of. We should hold the date to be as fixed by the parties.

LeaeNed, P. J.

(dissenting):

In regard to the limitation of the right of action, I think a payment cannot, by agreement, be made to take effect at a future day. It is an admission of indebtedness at the time it is made, not of an indebtedness at a subsequent time. Suppose a .payment made to-day on a verbal agreement that it should be indorsed as of a day two years hence. This ought not to make the statute of limitations run from that future date. (Code, § 395; Sharpley v. Abbott, 42 N. Y., 443; McDonnell v. Blanchard, 5 Week. Dig., 410.) The last case seems to be in point; plaintiff’s recovery depends upon the agreement made between the parties, and that was not in writing.

Judgment affirmed with costs.


text:
    JAMES BROWN, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant.

      Evideiice — information acquired by a physician is not privileged unless necessary to enable him to act as such — Code of Civil Procedure, see. 834
    Upon tie trial of tin's action, brought to recover damages for injuries sustained by tie plaintiff while crossing tie tracks of tie defendant's road in a village street, a physician, who attended the plaintiff professionally immediately after the injury, was examined as a witness for the defendant and testified that he visited the plaintiff professionally three times. The defendant then offered to show by the witness that on the third visit the plaintiff stated to the witness that when coming down the hill which lead to the railroad crossing he heard persons hallooing to him and saw a man swing his hat, but did not think where he was until the train was right on him.

      Held, that the court erred in excluding the evidence, as inadmissible under section 834 of the Code of Civil Procedure, as the information called for. although acquired while attending the patient in a professional capacity, was not “ necessary to enable him to act in that capacity."

      Hewitt v. Prince (21 Wend., 79); Edingion v. Etna Life Insurance Company (77 N. Y., 564); Pierson v. The People (79 id., 424); lienihan v. Dennin (103 id., 573) followed.
    Appeal from a judgment in favor of the plaintiff, entered in St. Lawrence county, upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was for injuries to the plaintiff and his property at a street crossing in the village of Hilverton, St. Lawrence county, alleged to have been caused by the negligence of- the defendant’s agents and servants in the running of its train through the village. On the trial the plaintiff obtained a verdict for $2,100, on which judgment was entered, with costs. A motion for a new trial on the minutes of the court was denied, and exception was entered. The defendant appealed.

      Edmund B. Wynn, for the appellant.

      George W. Hurlbut and Thomas Spratt, for the respondent.
   Bockes, J.:

-A case was made for the jury on the evidence, as we think, as well on the question as to the defendant’s liability for negligence as also- on the question of contributory negligence on the part of the plaintiff; The motion for nonsuit was properly denied, and no exception was taken on the giving of the case to the jury. There were several rulings by the court during the progress of the trial excepted to by the defendant on matter of evidence, one of which only is. deemed of serious moment.

It was- proved that the- plaintiff approached the crossing where the injury occurred on a descending grade in the highway. Doctor Setin, who attended the plain tiff professionally immediately following the injury, was examined as a witness for the defendant, and testified that he visited the plaintiff professionally three times. The defendant then offered to show by the witness that on the third visit the plaintiff stated to witness that when coming down the hill he heard persons hallooing to him, and saw a man swing his hat, but didn’t think where he was. until the train was right on him. This evidence was excluded, against exception, on the ground that witness-was a physician, and as a physician he had the conversation with plaintiff, which it was proposed to prove, in a confidential relation, and witness was incompetent to give the evidence under section 834 of the Code of Civil Procedure.

In this ruling there was error. The materiality of the evidence offered is unquestioned. It bore directly on the subject of plaintiff’s negligence, and was therefore ■ pertinent to the case. The section of the Code on which its exclusion was based is as follows: “ Sec. 834. A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired jn attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” -This is substantially a re-enactment of tbe Revised Statutes. (2 R. S., m. p. 406, § 73.) Effect must be given to tbe last clause of tbis section. Tbis point was marked and inferentially decided in Hewitt v. Prince (21 Wend., 79), a case considered under tbe provision of tbe Revised Statutes, as was also Edington v. Etna Life Insurance Company (77 N. Y., 564). In tbis case Judge Earl says: “ Before information can be excluded under tbis statute it must appear that it was sucb as tbe physician acquired in some way while professionally attending a patient, and it must also-be such as was necessary to enable him to prescribe as a physician, or to do some act as a surgeon. It is not sufficient to authorize tbe exclusion that tbe physician acquired tbe information while attending bis patient, but it must be tbe necessary information mentioned. If the physician lias acquired any information which was not necessary to enable him to prescribe or to act as a surgeon, sucb information he can be compelled to disclose, although be acquired it while attending tbe patient, and before tbe exclusion is authorized tbe facts must in some way appear upon which sucb exclusion can be justified.”

The rule is tbe same under tbe Code, and it lias been so explicitly held. (Pierson v. The People, 79 N. Y., 424, 432, 433, 434.) There is .nothing to the contary in Grattan v. Mutual Life Insurance Company (80 N. Y , 281), and in Renihan v. Dennin (103 id., 573) it was again laid down that tbe exclusion extended only to sucb information as was necessary to enable the physician to act. It is entirely plain that tbe evidence here excluded- was not of such a character. It had no relation whatever to the plaintiff’s condition, and was in no respect necessary to enable the physician to act in his professional capacity. Because of the exclusion of the evidence as offered there must be a new trial.

The judgment and order appealed from should be reversed, new trial ordered, costs to abide event.

Present— Learned, P. J., Landon and Bockes, JJ.

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


text:
    THE CITY OF ALBANY, Plaintiff, v. THE WATERVLIET TURNPIKE AND RAILROAD COMPANY, Defendant.

      Annexation of territory to a city]— right of the city to extend its street over, and acquiie rights to a turnpilce — rights conferred by the charter of a turnpike and horse railroad company as to the place and. manner of laying tracks are subordinate to the rights of the public.

    The defendant was incorporated under tile name of the Watervliet Turnpike Company, by chapter 141 of 1828, to make a good and permanent turnpike road from the north boundary line of the city of Albany to the upper ferry opposite Troy. By chapter 233 of 1862 its name was changed and the company was authorized, in addition to their present rights, powers, franchises and privileges, “ to construct and maintain one or more railroad tracks and ways, with all the necessary turnouts, branches and switches, upon the bed ot-oñe or both sides of their turnpilce road.” The act further provided that “that portion thereof which shall be constructed in, through or upon any of the public and paved street or streets of the city of Albany * * * shall be constructed and maintained flush with the surface of said street or streets as they now are or may be from time to time established or altered; * * * and said railroad tracks and ways shall be so constructed and used as to leave on each side thereof a portion of the carriage-way sufficient for the safe and convenient passage of carriages going in one direction, and so as not to occupy more than one-half of the width of the present turnpike road or of the carriage-way of any of the streets of the city of Albany.” After the passage of this act the company constructed its railroad tracks upon the east side of the turnpike road for the whole length thereof, and also pursuant to permission granted by the city, laid its tracks in the' city of Albany, and has ever since maintained and used the tracks so laid on the east side of the road. A portion of the town of Watervliet, adjoining the city on the north, having been annexed to the city by chapter 139 of 1870, so as to include therein a mile and a quarter of the turnpike and railroad of the defendant, proceedings were instituted by the city, under the provisions of its charter, by which Broadway was extended over the said portion of the turnpike; and proceedings were taken in due form by which the title to the aforesaid portion of the turnpike which was taken into the city was vested in the city, and 1he damages occasioned to the defendant were ascertained and paid to and received by it. Thereafter an ordinance was passed by the city requiring the -company to change the location of its tracks from the east side of the road to the center of Broadway, and another ordinance directing the corporation counsel to institute proeedings to compel the defendant to comply therewith.

      Ilet-d, that the city had power to so extend Broadway and acquire the title of the portion of the turnpike included within its limits, and as the defendant had notice of the proceedings, appeared by counsel and accepted the award, the question as to its adequacy or inadequacy could not now be raised, and that so long as it remained undisturbed the parties were concluded by it, certainly as to mere errors not effecting jurisdiction, such as errors in admitting or excluding evidence on the hearing before the officers appointed to inquire and certify as to the damages.
    The company claimed that the proceedings taken by the city to extend Broadway, and provide for the assessment and payment of the damages occasioned thereby, were ineffectual to take away or impair the vested rights of the company, or such rights as were especially and expressly granted to it by chapter 233 of 1862, one of which was the right “to construct and maintain one or more railroad tracks and ways with all necessary turnouts, branches and switches upon the bed or one or both sides of their present turnpike road. ”

      Held, that the claim could not he sustained.
    That the rights of the company were subordinate to such as were necessary and appropriate to the public use of the land for general public travel, and compensation was provided for to answer all damages necessarily resulting to those interested in such land who were injured by its appropriation to public use.
    That this was not the taking away, absolutely, of land already appropriated to public use.
    SubmissioN of a controversy upon an agreed statement of facts under section 1279 of tbe Code of Civil Procedure.
    The defendant was incorporated under the name of The "W atervliet Turnpike Company, by chapter 141 of the Laws of 1828, for “the purpose of making a good and permanent turnpike road on the most direct and convenient route from the north boundary line of the city of ’Albany to the upper ferry opposite the city of Troy.” (Sec. 1.) It is admitted that the company acquired the right to the real estate necessary for the turnpike road mentioned in said act, and entered into the use and occupation thereof soon after the passage of said act, and continued to use the same as a turnpike road until the year 1862. By chapter 233 of the Laws of 1862, the name of the company was changed to “ The Watervliet Turnpike and Railroad Company,” and the company was authorized “ in addition to their present rights, powers, franchises and privileges,” “ to construct and maintain one or more railroad tracks and ways with all the necessary turnouts, branches and switches upon the bed oi one or both sides of their turnpike road.” The company was also authorized by the same act, with the consent and such restrictions as might be deemed-proper by the common council of the city of Albany, to extend and maintain its railroad track or tracks and ways from the southerly termination of said turnpike road, in and through Broadway in said city to South Ferry street under certain restrictions and obligations stated in said act.
    Section 2 of said act provides as follows : “ The track or tracks of said railroad or way and all the branches, turnouts and switches thereof, shall be constructed with the most approved rail, and that part thereof which shall be constructed in, through or upon any of the public and paved street or streets in the city of Albany or the village of West Troy or the-village of Cohoes, shall be constructed and maintained flush ■ with the surface of said street or streets as they now are or -may be from time to time established or altered, and the said company shall keep the surface of every such street, inside-the rail and for two ffeet outside thereof, at all times in good and proper condition and repair; and said railroad tracks and ways shall be so constructed and used as to leave on each side thereof a portion of the carriage-way sufficient for the safe and convenient passage of carriages going in one direction, and so as not to occupy more than one-half of the width of the present turnpike road or of the carriage-way of any of the streets of the city of Albany or the village of West Troy or Cohoes, through which the same may be constructed.”
    The common council afterwards granted permission to defendant to lay its tracks in the city of Albany, under certain restrictions. After the passage of the last mentioned act, and the said ordinances, defendant proceeded to construct railroad tracks upon the east side of its turnpike road for the whole length thereof, and also to lay its tracks in the city of Albany, as authorized by said ordinances, and constructed and put in operation at least six continuous miles of said tracks with the necessary turnouts, branches and switches within three years after the passage of the act. Ever since the construction of said railroad tracks, the defendant has maintained its said tracks with all the necessary turnouts, etc., upon the east side of the said turnpike road, extending from the then north boundary of the city of Albany to the village of West Troy, and has occupied the said turnpike so that no vehicles can pass to the east of said tracks.
    By chapter 139 of the Laws of 1870, a certain portion of the town of Watervliet was annexed to the city of Albany, and the north boundary of the said city was changed so as to include a mile and a quarter in length of tbe turnpike and railroad of defendant, which portion of said turnpike and railroad has ever since been and is now included in the limits of the city of Albany.
    Proceedings were commenced under the provisions of the charter by the city of Albany, on the 8th day of September, 1884, to acquire title to that portion of the turnpike which was included in the limits of tbe city, and to extend Broadway over the same to the new northern boundary of the city. The counsel for the company appeared before the court to appraise damages and certain evidence offered by him was rejected. An award was made by the commissioners to the company of five dollars, which was confirmed by order of the court, and was received by the defendant.
    On the 20th day of July, 1885, the common council passed an ordinance requiring the company to change the location of its tracks from the east side of the road to the center of the roadway. Since the adoption of this ordinance, the common council has also passed a resolution directing the corporation counsel of the city to institute proceedings to compel the compliance of the defendant with such ordinance. A contract has since been made by the city for the paving of Broadway between the north line of DeWitt street and the present north line of the city with granite blocks, and the contractor, under the direction of the street commissioner, is now about to perform and execute said contract by paving the said street with granite blocks. The street thus contracted to- be paved includes that portion of the turnpike road of the defendant, between the former and the present north bounds of the city, being about a mile and a quarter in length.
    The plaintiff, the City of Albany, claims that it had authority to pass the ordinance above referred to, and that the defendant is legally bound and should be compelled to change its tracks from the side of the street or turnpike to the center thereof, so that vehicles can pass on each side of the tracks, and to construct its tracks in the center of the street of rails that shall be fiush with the pavement that shall be laid ; and claims that it is entitled to a judgment compelling the defendant specifically to perform the duty imposed upon it by said ordinance.
    The defendant claims that the rights of the city are subordinate and subject to the franchises and rights conferred upon the company by the legislature, and that the city has no right to interfere with its chartered rights and privileges, and that defendant, under and by virtue of said act, chapter 233 of the Laws of 1862, was vested with the right to construct and maintain its railroad tracks upon the side of the said turnpike road, and that such rights and privileges have not been taken away or impaired by any subsequent act cf the legislature, or by any act or proceedings instituted by the common council. The defendant also claims that it is entitled to a judgment m its favor restraining the plaintiff or any of its officers or contractors from interfering with its tracks without the consent of the defendant.

      D. Cady Herrick, for the plaintiff.
    Hale, Cowen & Bulkley, for the defendant.
   Bockes, J.:

That the defendant’s company had rights, absolute or qualified, in the strip of land taken for the extension of Broadway, which strip came within the territorial limits of the city by the annexation of territory to the city, is undeniable. The first question, then, is whether the taking of the strip in which the company had rights, for the purpose of a public street was in accordance with legal authority This question seems well answered in the affirmative by the facts stated in the submission laid before the court as the basis for its decision. The act of 1870, chapter 139, authorized the annexation, and thereafter the annexed territory with its freeholders and inhabitants was, for all purposes provided for by the city charter, subject to the control and government of the city, with some few exceptions, here unnecessary to be noticed. (Sec 5 ) Its charter conferred authority upon the common council to take within the city any ground or real estate, with the appurtenances * * * for the purpose of laying out, opening, extending, etc., f * any street, road or avenue (1883, chap. 298, tit 17, § 1), and to meet the'constitutional requirement as to compensation, provision was made for an assessment and payment of damages occasioned thereby (See subsequent sections.) The extension of Broadway was duly made and proceedings were had in due form fox ascertaining the damages caused by it to the parties interested, of which proceedings the company bad notice, and in. point of fact participated therein. Its damages were assessed in accordance with all legal requirements, and the sum awarded to the company for its damages was paid over to and was accepted by it. It matters not here that it was small in amount, inasmuch as it- was ascertained and entered of record in all respects according to law. The subject of its adequacy or inadequacy was foreclosed in that proceeding. So long as the award, whatever was its amount, remained undisturbed by reversal or otherwise, the parties, were concluded by it; certainly to as to mere errors not affecting jurisdiction, such as errors in admitting or excluding evidence on the hearing before the officer appointed to inquire into and certify the damages or in the sum or sums awarded by them. But it is insisted on the part of the company that the proceedings to extend Broadway and to provide for the assessment and payment to the parties interested in the land taken for that purpose,, of damages occasioned thereby, were ineffectual to take away or impair the vested rights of the company, or such rights as were especially and expressly granted to it by the act of 1862, chapter 233, one of which was the right to construct and maintain one or more railroad tracks and ways, with all necessary turnouts, branches and switches upon the bed or one or both sides of their present turnpike road. (Sec. 1.) We conclude otherwise.' Authority was conferred upon the common council to take the ground for the purpose of a public street, that is, to make it useful as such to the public, to answer the necessities and conveniences of public 'travel with vehicles, etc

So it was provided that upon payment or deposit of the sum to be paid as compensation, the city of Albany shall be entitled to enter upon and be seized of the fee of the real estate so taken as afore, said, for public use.” (Tit. 17, § 8, chap 298 of 1883 ) Thus other rights were subordinated to such as were necessary and appropriate to the public use of the land for general public travel, and compensation was provided for to answer all damages necessarily resulting to those interested in such land, injured by its appropriation to public use as a street. This was not the taking away, absolutely, of land already appropriated to public use.

As regards the rights of the company, it but regulated, or gave to the city the power to regulate its use as between the company and the city {tnd provision was made for compensation for tbe injury growing out of the interference with the company’s rights authorized by the act The land was appropriated to use as a public street with all the necessary incidents to secure such convenient use, and it must follow that the ordinary powers of government brought into exercise to secure that end will attach; those powers are such as pertain to the city officer or branch of the city government having the public streets of the city in charge; and so it is declared in the city charter that the common council shall be commissioners of highways in and for the city, with power to regulate the use of the streets, highways, roads and public places by foot passengers, vehicles, railways and locomotives; (Tit. 3, § 1’4.) The extension of Broadway having become a public street of the city, its use became a matter of regulation by the common council, hence that body might control the position of the defendant’s tracks along its surface. If the above suggestions and conclusion be sound, the ordinance here brought in question is well supported by ample authority.

Judgment must go for the city on the case submitted, with costs. If counsel shall be unable to agree upon the judgment to be entered, it will be settled on notice by one of the justices of the court.

Present — Learned, P. J.; Landon and Bockes, JJ.

Judgment ordered for city, decree to be settled by Bocees, J..


author: Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JEREMIAH J. MATTIMORE, Appellant.

      Charter of the city of Albany —1883, chap 298 — power of the common council tc pass ordinances requiring the sidewalks and gutters to he kept free from ice and snow.

    An ordinance ol the city of Albany provided that every owner, lessee or person entitled to the possession, or having the charge of any building or vacant lot, shall, during the winter season, and during the time that snow shall continue on the ground, by ten o’clock on every morning, when necessary, clear the sidewalk and gutters in front of such house or other building and in front of such lot from snow and ice, and keep them conveniently free therefrom during the day; or shall, in case the snow and ice are so congealed that they cannot be removed without injury to the pavement, cause the said snow and ice to be strewed with ashes or sand, and shall also at all times keep such sidewalk clean and free from all dirt, filth or other obstructions or incumbrances, so as to allow of the citizens using the said .sidewalk in an easy and commodious manner, and imposes a penalty of two dollars on every person neglecting or refusing to comply with the law.
    Sections 23 to 28 of title 9 of the charter of the city (chap. 298 of 1883) provides that “it shall be the duty of the chief of police to regulate the cleaning and sweeping of the streets, * * * and the clearing of ice and snow from the sidewalks and gutters in said city;” and that “the city shall be divided into districts, and the cleaning of such districts shall be done by the occupants or owners of property in such manner and at such times as may be prescribed by the chief of police or his subordinates,” and in case the occupants or owners shall not clean and sweep the street or clear the ice and snow from the sidewalks as required by the police, it shall be the duty of the chief of police or his subordinates to notify the occupant of the house or lot before which such work has not been done, and in case he cannot be found the owner of such house or lot, and if such work is not done forthwith the chief of police shall cause the work to be done, and the expense of so doing shall be paid by the owner or occupant. If the owner or occupant shall fail to pay such expense the occupant, or, in case he cannot be found, the owner shall be arrested and fined not less than such amount, which shall be paid to the person doing the work.

      Held, that the common council of the city had power to pass the ordinances under the authority conferred upon it by section 14 of title 3 of its charter, and that it did not violate the other provisions of the charter relating to the same subject, as its provisions were not inconsistent therewith
    Appeal from a judgment of conviction and sentence by the Police Court of the city of Albany. The defendant was convicted and fined by the Police Court of the city of Albany for his failure to clear the snow and'ice from the sidewalk in front of the lot in the city, of which he was the owner and occupant. The conviction and fine were under an ordinance of the city,

      Marie Cohn, for the appellant.

      Andrew Marmitón, for the People, respondent
   Landon, J.:

It is contended by the appellant that the ordinance under which he was convicted is m violation of the charter. Authority is given by title 3, § 14 of the charter of the city of Albany, chapter 298, Laws of 1883, to the common council “to make * * * eucb laws, ordinances, regulations and resolutions as may be necessary to carry into effect any and all of the powers now vested in, or by this act conferred upon the corporation, and it §liall have power to enforce obedience thereto and observance thereof, by ordaining penalties for each and every violation thereof * * * and shall have power to malee such ordinances and prescribe such penalties for their violation in the matters and for the purposes following, in addition to other powers elsewhere specially granted, viz.. 1. To regulate the use of the streets. * * * 8. To regulate the cleaning of the streets, sidewalks and gutters, and removing ice, hail and snow from them. * * *

“Sec. 25. To order and direct * * * the cleansing of sidewalks, gutters and streets in front of all lots in said city from ¡snow * * * and the same shall be completed under the direction of the said city within sach time as to them shall seem proper.”

Under these powers it was competent for the common council to make the ordinance under which the defendant was convicted. Such ordinance provides:

“Sec, 29. Every owner or occupant of any house or other building, and the owner or proprietor, lessee or person entitled to the possession of any vacant lot, and every person having the charge of any church, cemetery, jail, or other public building in this city, shall, during the winter season, and during the time snow shall .continue on the ground, by ten o’clock on every morning, when necessary, clear the sidewalk and gutters in front of such house or other building and in front of such lot, from snow and ice, and keep them conveniently free therefrom during the day or shall, in case the snow and ice are so congealed that they cannot be .removed without injury to the pavement, cause the said snow and ice to be strewed with ashes or sand , and shall also, a.t all times, keep such sidewalk clean and free from all dirt, filth or other obstructions or incumbrances, so as to allow of the citizens using -the said sidewalks in "an easy and commodious manner, and every person neglecting or refusing to comply with this law shall incur a penalty of two dollars for each neglect or refusal; and the street commissioner, superintendents, the police justices, officers and members of the police are especially enjoined to see this law carried .into effect.”

Title 3, section 42 of the charter provides that the violation of an ordinance shall be deemed a misdemeanor, and upon conviction the offender shall be punished by fine and imprisonment But the main ground upon which it is contended that this ordinance violates the charter is, it is alleged that it is inconsistent with the regulation of the same subject-matter as provided by the charter Itself It must be conceded that if the legislature has regulated the matter, the common council has no power to make an inconsistent regulation. The provisions of the charter, which are claimed to be in conflict with the ordinance, are contained in title 9, sections 23 to 28, inclusive, as follows: “ It shall be the duty of the chief of police to regulate the cleaning and sweeping of the streets, avenues, alleys, sidewalks, wharves, docks, roads and cross-walks, and the cleaning of ice and snow from the sidewalks and gutters in said city I’

“ The city shall be divided into districts, and the cleaning of such districts shall be done by the occupants or owners of property, in front of such property to the center line of the street, m such manner and at such times as may be prescribed by the chief of police or his subordinates.’'

“ In case the occupants or owners of property shall not clean and sweep the streets * * * or clean the ice and snow from the sidewalks * * * as required hy said policej it shall be the duty of the chief of police, or his subordinates, to notify the occupant of the house or lot before which such work has not been done, and in case he cannot be found, the owner of such house or lot, and if such work is not done forthwith ; or, in case the contractor, whose duty it may he to remove the street dirt or snow, shall fail or neglect to remove the same, the chief of police or liis subordinates shall at once cause the work to be done or the dirt or snow to be removed, and the expense of so doing, when certified by the chief of police shall be paid by the owner or occupant of the property, or charged to the contractor as hereinafter provided.”

“ If such owner or occupant shall fail to 'pay such expense the occupant, or in case he cannot be found, the owner shall be arrested upon a warrant to be issued by one of the city police magistrates upon the complaint of the chief of police and fined not less than such amount. Such amount of the fine shall be paid to the person doing the work. In case the default shall be upon the part of the contractor, tbe.chamberlain shall pay the expense * * * and deduct such amount from any amount falling due to the contractor from the city. If neither * * * can be found, the expense * * * shall be assessed upon the property by the board of contract and apportionment, as in case of repairs of streets.”

“ The board of contract * * * shall also enter into a contract or contracts, in accordance with the provisions of this act, for the removal of street dirt.”

A comparison of the ordinance with the provisions of the charter will show that the ordinance requires the lot owner to clear off the snow and ice from the sidewalk, or strew the snow and ice with sand or ashes, “ so as to allow of the citizens using the sidewalks in an easy and commodious manner.” The charter makes it the duty of such lot owner to clean the snow and ice from the sidewalks “ in such manner and at such times as may be prescribed by the chief of police or his subordinates.” The extent of the requirement in the first case is the “ easy and commodious ” use of the walk by the citizens; in the second case it is as prescribed by said police.” In the former case the lot owner is liable to be fined for neglect to clear off the walk; in the latter for failure to pay the expense which the city has incurred for doing it for him

The ordinance evidently was intended to keep the sidewalk free and usable; the charter provisions to keep sidewalks and streets clean. The ordinance is a standing notice to perform its requirements in seasons of snow and ice; the charter provisions cover the entire year, and calls for stated work at such times and in such manner as the police may prescribe. It may be that the charter provisions are broad enough to cover the entire subject embraced in the ordinance. But a municipal government may be authorized to pass ordinances imposing new and additional penalties for acts already penal by the laws of the State. (City of Brooklyn v Toynbee, 31 Barb., 282.) This ordinance, however, as we have seen above, prescribes the penalty for a different and earlier neglect than the neglect made penal by the charter. The provisions of the charter may well be satisfied by so regulating the cleaning of the sidewalks and streets as to enable the dirt contractor to remove the obnoxious accumulations of snow and dirt

The ordinance should be construed as supplying an obvious deficiency in the police regulations. A municipal corporation under the grant of general power to make police regulations can require the citizens to exercise their rights of property in such a manner as to prevent its becoming pernicious to the citizens generally. (Mayor v Williams, 15 N. Y., 502, 505; Village of Carthage v. Frederick, 35 Alb Law Jour., 319) This ordinance is reasonable It is a means to promote the usefulness and safety of the sidewalks, and to protect the city from legal liability against damages arising from imputed neglect to keep them in proper condition.

The conviction and judgment should be affirmed.

Bockes, J., concurred, Learned, P. J., not acting.

Judgment and conviction affirmed


text:
    THE PRESBYTERIAN CHURCH OF ALBANY, Respondent, v. THOMAS C. COOPER and STEPHEN D. B. GOLDEN, as Administrators of THOMAS P. CROOK, Deceased, Appellants.

      Mutual agreement to contribute money to pay a church debt — validity of such a subscription — the condition of the subscription that a certain sum be subscribed or paid implies legally binding subscriptions.

    The defendants’ testator, Thomas P. Crook, a member and elder of the plaintiff, subscribed $5,000 towards a fund of $45,000 to be raised to pay the principal of a mortgage upon the church, by signing a paper by which the signers promised and agreed to pay to the plaintiff’s trustees, on or before three years from the date of the paper, the sums set opposite their respective names, upon the express condition that the sum of $45,000 should he subscribed or paid in for the said purpose, and that if within one year from the said date the said sum should not be subscribed or paid in for such purpose, then the agreement was to be null and of no effect, it being required, to make the subscription binding, that the subscription or contribution should equal the sum of $45,000.
    Among the subscriptions were the following, one for $5,000 by the “Ladies Association of the First Presbyterian Church," signed by the lady president of the association, which consisted of such ladies of the church as contributed to its benevolent work, who, at a meeting at which some twenty-five or thirty were present, passed a resolution pledging themselves to raise that sum, one for $500 by “Sunday school, per R. P. Todd,” made by Mr. Todd, the superintendent, and approved and ratified at a meeting of the officers and teachers. The young men of the church, at a regularly organized meeting, also passed a resolution pledging themselves to pay $1,000, and requested the chairman of the meeting to sign the paper which he did not do.
    Crook, who knew and approved of the character and amount of these subscriptions, paid $3-000 on his subscription prior to his death, which occurred on October 10,1885, at which time $10,868.30 of the entire subscription had been collected. Upon the trial of this action, brought by the plaintiff to compel Crooks' administrators to pay the balance, if due, on Crook’s subscription, a judgment was rendered in its favor

      Held, that it should be reversed as the subscriptions above set forth were all invalid, while valid subscriptions for an actual payment of the full amount were a condition precedent to the testator’s liability.
    That the fact that the testator, with full knowledge of these imperfect subscriptions, made payments on account of his subscription, while evincing an intern tion on his part, to waive the defects, did not impose upon the defendants the duty of fulfilling any but his legal liabilities, and that as there was no evidence to show that the payment of a part of his subscription by the testator caused the plaintiff to relax any effort, or to incur any obligation or do or omit anything to its prejudice, the element of estoppel was wanting.
    Appeal from a judgment in favor of the plaintiff, entered in Albanji county, upon the report of a referee.
    Thomas P Crook, a member and elder of the religious society known by the name of the plaintiff, subscribed $5,000 towards a fund of $45,000 to be raised to pay the principal of the mortgage debt existing upon the plaintiff’s lot and church edifice. The following is a copy of the subscription paper: “That the undersigned hereby severally promise and agree to, and with the trustees of the First Presbyterian Church in the city of Albany, in consideration of one dollar to' each of us in hand paid, and of the agreements of each other in this contract contained, to pay, on or before three years from the date hereof, to said trustees, the sum set opposite our respective names, and upon the express condition, and not otherwise, that the sum of forty-five thousand dollars in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if, -within one year from the date, said sum shall not be subscribed or paid m for such purpose, then this agreement to be null and of no effect. The purpose of this subscription is to pay off the mortgage debt of forty-five thousand dollars, now a lien upon the church edifice of said church, and the subscription or contribution for that purpose must equal that sum in the aggregate to make this agreement binding Dated May 18, 1884/’’
    The referee found that the full sum of $45,000 was subscribed or paid for the purpose specified in the subscription paper; thac the subscriptions were solicited and obtained by the trustees and officers of the plaintiff; that the defendant’s intestate, Mr Crook, actively promoted the raising of the subscription, that he paid $2,000 thereon; that he died October 10, 1885 ¡ that $10,86S.30 of the entire subscriptions were collected by the plaintiff before Mr Crook’s death; that $10,500 thereof had then been paid m reduction of the principal of the mortgage debt, of which $7,000 were paid upon the express approval of Mr. Crook, before the same became due.
    Among the subscriptions made was one of $5,000 by the “ Ladies Association of the First Presbyterian Church.” This association consisted of such ladies of the church as contributed to the benevolent work of the church.” They did not sign any articles of association. Some twenty-five or thirty met together. One of their number presided and a resolution was adopted pledging themselves to raise $5,000, the payment to be according to the terms of the above subscription paper, which the lady president signed in the above style. - Another subscription was “ Sunday-school per R. F. Todd, $500.” This was made by Mr. Todd, the superintendent of the school, and approved and ratified by a meeting of the officers and teachers.
    The young men of the congregation, in a meeting regularly organized, passed a resolution pledging themselves to raise, “ by entertainments or otherwise, $1,500 towards the paying of the $45,000' mortgage upon the church, and that the chairman be requested to sign and forward tht resolution to the treasurer of the board of trustees.” This was done but the subscription paper was not signed.
    Mr. Crook knew the character and amount of the above so-called subscriptions and expressed his approval of them They had not been paid at the time of his death. The defendants, his administrators, refusing to pay the balance remaining unpaid at his death, the claim therefor was with the approval of the surrogate referred, and upon the trial the judgment appealed from was recovered.

      Ward & Cameron, for the appellants.

      M. Hale, for the respondent
   Landon, J.:

Assuming that the subscription paper signed by Mr, Ci’ook was in such form as to constitute, in connection with the subscriptions of others, and the implied promise of the plaintiff to apply the money to the purpose mentioned, a valid contract between him and the plaintiff, still we think the conditions were not so far performed as to make his conditional promise to pay an absolute promise.

The subscription was “ upon the express condition, and not otherwise, that the sum of $45,000 in the aggregate shall be subscribed or paid in for the purpose hereinafter stated, and if within one year from the date said sum shall not be subscribed or paid in for such purpose, then this agreement to be null and of no effect.” Plainly valid subscriptions or actual payments to the amount of $45,000 were contemplated as the condition precedent to absolute liability. (N. Y. Exchange Co, v. De Wolf, 31 N. Y , 273.) The subscription of $5,000 by the “Ladies’ Association” clearly was not legally binding upon the twenty-five or thirty ladies who assembled and passed the resolution to raise the money, but did not pass it to make the subscription. They had no actual organization such as rendered the association as such capable to contract. Their president, who wrote the name of the association to the paper as a subscriber for the $5,000, had no authority to bind any one but herself, and this she did not undertake to do. She did not write her own name to the subscription paper. The entire transaction was simply a testimonial of their good will and of their willingness to try to raise the sum named, but it lacks the essential of capacity to contract and of a valid contract. The resolution of the “ young men of the church ” is invalid for the same reasons.

The subscription “Sunday school by R. F. Todd” is invalid. Mr. Todd did not assume to bind himself. He assumed to be the agent of a “ Sunday school,” which was incapable of binding itself as a school by any form or agent it might employ or designate. Mr. Todd, by making this subscription, simply represented that he had all the power and authority the Sunday school could give him, but as it could give no efficient power, he cannot be presumed to bave represented that he had any , and, therefore, does not occupy the position- of an agent who represents himself tc hold the power he does not possess, to bind a principal, who, if existing, could bind himself, as in the case of Union Hotel Co. v. Hersee (79 N Y , 455), cited by the plaintiff.

The plaintiff contends that the defendant, with full knowledge of these imperfect subscriptions, waived their imperfections. No doubt he did so to the extent that he made payments, and we may believe that if he had lived he would have waived them still further. But death devolved upon his representatives, his legal liabilities, not the fulfillment of his benevolent purposes. There is no evidence to the effect that the payment óf a part of his subscription by Mr Crook, caused the plaintiff tc relax any effort or incur any obligation, or do or omit anything to its prejudice. The element of estoppel is wanting, and without it a waiver of the condition precedent essential tc the obligation of the contract cannot be presumed. The plaintiff cites Hutchins v Smith (46 Barb , 235), and Dutch Church v. Brown (17 How Pr., 287). Butin both of those cases the plaintiff did, at the request of the defendant, acts which would be to the plaintiff’s prejudice if the subscriptions were invalid,

The judgment must be reversed, the referee discharged new trial granted, costs to abide the event.

Learned, P. J.; Bockes, J, concurred,

Judgment reversed, new trial granted referee discharged, costs to abide event.


author: Learned, P. J.;

text:
    AMANDA M. O’NEILL, Respondent, v. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.

      Negligence — liability of a railroad for damages occasioned to wood land by sparks from its locomotives — admissibility of evidence to show that the owner was unable from want of money to take steps which would have reduced the amount of damages.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Sullivan Circuit, and also from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages to the plaintiff’s wood lands, which were alleged to have been caused by sparks from a locomotive engine in use on the defendant’s road.
    The court at General Term said: “ The defendant urges that plaintiff should have been nonsuited on the ground that there was no evidence of negligence. In Webb v. Rome, Watertown and Ogdensburgh Railroad Company (49 N. Y., 429), an action of similar character, it was pointed out that the negligent act consisted not merely in the suffering coals to fall from the engine; that it was made up of all the circumstances, such as, among others, the dryness of the atmosphere, of the' earth and its herbage, and the accumulation of weeds, grass and rubbish by the side of defendant’s track.
    “Now in the present case there are similar facts There were old ties piled up on the lands of the railroad, and brush and briers, cut brush and old bark; and there had been quite a severe drought for the time of year, May. The wind was blowing hard, and there was some evidence that sparks “as large as walnuts, chunks and cinders ” came from the smoke-stack The defendant claims that no engine can be made which will not throw sparks If this be so, it may impose the greater care upon the company to clear up and keep from their track dry and combustible material Certainly they ought not unnecessarily to pile up such materials where sparks would probably fall upon it. In the view of the case above cited, we think the nonsuit ivas properly refused, * * * The next is m regard to a question about the cutting of the wood The plaintiff’s woods had been burned The plaintiff had shown the consequent diminution m value of her farm The defendant, on cross-examination, had shown the value of the wood in the tree after the fire, m order to reduce the damages. The plaintiff showed that it was impossible for her to cut the wood m the spring after the fire, because she did not have the necessary money To this evidence the defendant objected We think it was proper The plaintiffs property had been injured by defendant’s negligence. It was undoubtedly plaintiff’s duty to take reasonable care that the loss should not be made greater than necessary.. But what the plaintiff could do m this respect depended on circumstances. She could not be called upon m the lack of pecuniary means, to cut down in the spring time this burned wood, in order to dimmish defendant's liability She was the owner of a farm, and would naturally have other work to attend to It was proper to explain why she could not attend to this work for the defendant’s benefit If the defendant had desired to reduce the damages which it had caused, it might have offered to cut and dispose of the wood itself for the plaintiff's benefit,”
    “We think the judgment and order should be affirmed, with costs. ”

      George II Carpenter, for the appellant.

      W. F. O'Neill, for the respondent.
   Opinion by

Learned, P. J.;

Bockes and Landon, JJ., concurred.

Judgment and order affirmed, with costs.