text:
    Emma M. McGrell, as Administratrix, etc., of Maggie May McGrell, Deceased, Appellant, v. Buffalo Office Building Company, Respondent.

      Negligence — elevator car ■ — liability of its owner for accidents — sudden sta/rting of a car where a child is the passenger — doors to an elevator car.

    The relations between the owner and manager of an elevator and his passengers are similar to those existing between a common carrier and those carried by him.
    Upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused, as alleged, by the improper construction and management of an elevator in a building belonging to the defendant, it appeared that the plaintiff’s intestate was a child under ten years of age; that she entered the building for the purpose of visiting her mother, who was employed in an office on the third floor of the building; that the child had never before been in the building and had never been in an elevator; that the elevator ear had no door nor seats for passengers, and that the front of the elevator shaft, between the cornice over the door to the shaft and the next floor, was constructed for some feet of wrought iron vertical bars three and one-half inches apart.
    It was shown that in this and other elevators passengers frequently lost their equilibrium when the car started; that the maximum speed of the car was eight feet a second, and that on the occasion of the accident the car reached its maximum speed after moving three feet.
    The conductor, the only witness of the accident, testified that when the elevator had reached the cornice of the door of the elevator shaft, the deceased ran forward, caught hold of the bars of the elevator shaft, was caught between the car and bars and was killed.

      Held, that the question whether the child voluntarily ran across the car and caught hold of the exposed bars of the elevator shaft, or whether, having lost her balance, she fell against the'bars, was a matter sufficiently in doubt to require the submission of the question to the jury;
    That under the circumstances it was a question for the jury to determine whether it was not a negligent act upon the part of the conductor to start the car at full speed without first warning the child and giving her some instructions as to how to protect herself, and whether the omission to provide the elevator car with a door did not, under the circumstances, indicate negligence on the part of the owner of the elevator.
    Appeal by tbe plaintiff, Emma NX. McGrell, as administratrix, etc., of Maggie May McGrell, deceased, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe cleric of the county of Erie on tbe 21st day of May, 1895, upon the dismissal of tbe complaint directed by the court after a trial at the Erie Circuit, before tbe court and a jury, -and also from an order entered in said clerk’s office on tbe 22d day of April, 1895, denying tbe plaintiff’s motion for anew trial made upon the minutes.

      Wallace Thayer, for tbe appellant.

      O. M. Bushnell and Porter Norton, for tbe respondent.
   Lewis, J.:

Plaintiff’s daughter, Maggie May McGrell, was killed while riding in an elevator in defendant’s building in tbe city of Buffalo on the 23d day of April, 1894, -and this action was brought by her mother, as administratrix, to recover tbe damages sustained by the next of kin of tbe deceased by lier death. She was nine years and six months old at the time of her death. The defendant’s building was fire-proof and was occupied for offices. It was eleven stories in height and had two elevators; both of them were used for carrying passengers.

The one in question was so arranged that it could be used also for transporting furniture and safes, and for that purpose the doorway of the car was three feet and eight inches wide, which was wider than would have been necessary had it been intended for transporting passengers only. It was not provided with a door. The opening into the elevator well on the first floor of the building was but two feet eight inches wide. The elevator car was five feet and one inch by four feet and ten inches in size. Between the sides of the car and the walls of the shaft there was a space of three and one-half inches. The distance from the ground floor of the building to the first floor above was about fifteen feet. The door to the elevator shaft was seven and one-half feet high. Above the door was a wrought iron cornice. The front of the elevator shaft, between the cornice and the first floor above was constructed of wrought iron vertical bars, five and one-lialf feet long, one-fourth of an inch thick, and three-fourths of an inch wide, and were three and one-half inches apart; they were fastened at each end by a screw. There being no door to the car, there was nothing between the bars and the passenger who might be standing opposite the opening in the car as it passed the bars.

The elevator was operated by hydraulic power, and when in full ■ motion moved at the rate of eight feet per second. The plaintiff was employed, at the time of the accident, in an office upon the third floor of the defendant’s building. The deceased was left at home in the morning, and without her mother’s knowledge or consent left her home and went to the defendant’s building for the purpose of visiting her mother.

It was the first time she had ever been in the building, and the first time she had been in an elevator. She went into the rooms of the occupant of the first floor of the building, and made known her wish to go to her mother’s room. She was directed to the janitor or superintendent of defendant’s building; he took her to the elevator upon the first floor, and directed the young man in charge to take her to the plaintiff’s room.

The deceased entered the car and took her place in the back part of it. She was the only passenger ; the car was started about one minute after she entered. The conductor was called as a witness by the plaintiff. lie testified that Maggie was standing in the corner of the car as far from him as she could ; that after he set the car in motion, and it had reached the top of the doorway in the shaft, the deceased ran forward and caught hold of the bars of the elevator shaft above described. She was thrown down upon the "floor of the car and her Jiead was drawn in between the car and the vertical bars mentioned, the bars bending out sufficiently to allow her head to enter. That he at once stopped the car, but not in time to prevent the disaster, and the child was killed.

The conductor was the only witness who described what occurred in the car, and while he insisted that the deceased voluntarily ran across the car and seized hold of the bars, the manner of her falling, the position in which her body was found upon the floor of the car, showing' that she probably took but one step before falling, and other circumstances described by the witness, presented a question of considerable doubt whether the deceased, in fact, voluntarily ran across the car and caught hold of the bars, or, as the car started, lost her equilibrium and stepped forward involuntarily to regain it, and in her efforts to save herself from falling, caught hold of the bars.

There was evidence tending to show that it was a frequent occurrence for passengers to lose their equilibrium in this and other elevators.

The conductor testified that, he had operated elevators in other buildings in the city, which ran at a less speed than the defendant’s; that it was a frequent occurrence for people to lose their balance in them; that on at least forty occasions he had noticed passengers who were compelled to step about in elevators in order to maintain an upright position as the car started; that he had noticed such occurrence in the elevator in question, and that on one occasion a passenger in the defendant’s elevator had lost his balance as the elevator started and fell over against the witness. Other witnesses testified that they had ridden in the elevator in question, and had frequently experienced a tendency to fall forward as the car started. As the conductor applied the power at the time in question, the car attained its maximum speed wlien it liad moved only about three feet. No question is raised as to the competency of the conductor to manage the elevator, or that the space between the platform of the elevator and the vertical bars was too large.

At the close of the plaintiff’s evidence a nonsuit was granted and the question presented by this appeal is whether there were any questions of fact which should have been submitted to the jury. Many grounds of negligence on the part of the defendant are urged by the appellant’s counsel. It is contended that the conductor unskillfully operated the car on the occasion in question; that there should have been a door to the car; that the front of the elevator shaft should have been solid wall instead of the vertical bars; that, under the circumstances, the conductor should have instructed the deceased how to protect herself, and warned her of the danger of her falling as the car started.

The relations between the owner and manager of an elevator and his passengers are similar to those between an ordinary common carrier and those carried by him. There seems to be no reason for any distinction between the two classes of carriers. The dangers incident to the former means of transportation are quite as great, if not greater, than are incident to travel by railways. Ray, in his work on Negligence, Common Carriers (§ 96, chap. II), says : “There is no ■employment where the law should demand a higher degree of care and diligence than in the case of the persons using and running elevators for lifting human beings from one level to another.”

The relations between carriers by elevators and their passenger’s are discussed in Treadwell v. Whittier (80 Cal. 574); Mitchell v. Marker (62 Fed. Rep. 139); Goodsell v. Taylor (41 Minn. 207).

It is manifest from the description of the elevator shaft and car, that there was danger that passengers would come in contact with these stationary vertical bars as the car was passing them, and by so doing might receive bodily injuries. Had the car been provided with a door, the accident in question would not have occurred.

The conductor was aware that the child was quite likely to lose her equilibrium if he started the car rapidly. He knew, or should have known, that she was liable to be thrown down on the floor of the car. His observation had taught him that strong adults were liable, as a car starts, to lose their balance, and were frequently compelled to step about in the car to prevent falling.

The evidence tended to show that the conductor started the car on this occasion with its usual rapidity. He was aware that the deceased was a mere child; that she did not possess the ability to care for herself that an adult person would under the circumstances.

There was no seat or railing in the car, hut there were two projections into the body of the car, one on each side, which would have afforded a resting place for the child’s hand.

Hnder ordinary circumstances, elevator conductors would not be expected to give instructions to their passengers, but here was a small child alone in the elevator and ¡iresumably unaccustomed to riding in one, and, under all the circumstances, we are of the opinion that it was a question which should have been submitted to the jury, whether it was not a negligent act on the part of the conductor to start the car at its full speed without first warning the deceased and giving her some instructions as to how to protect herself. It was also a question for the jury whether, under the circumstances, the omission to provide the elevator car witli a door was not evidence of negligence on the part, of the defendant.

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

Bradley and Ward, JJ,, concurred.

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


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    James W. Stanton, Appellant, v. United States Pipe Line Company, Respondent.

      Affidavits taken without the State — form of the certificate as to the authority of the officer.

    In order that an affidavit, taken without the State of New York, may he admissible as evidence in an action brought in the State o£ New York it must have been taken in the foreign State before an officer authorized by its laws to take and certify the acknowledgment and proof of deeds to be recorded in such State.
    ■Where a certificate in regard to the power and authority of an officer who had taken an affidavit in a foreign State simply described him as an acting notary public, duly qualified, and as such duly authorized by the laws of the foreign State to take the affidavit, but there was nothing to show whether notaries in such foreign State were authorized by its laws to take and certify the acknowledgment and proof of deeds to be recorded there, such affidavit cannot be used upon a motion made in an action brought in the State of New York.
    Appeal by the plaintiff, James W. Stanton, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of December, 1894, vacating and setting aside the service upon the defendant of the summons and complaint in this action.

      John O. Ilubbell, for the appellant.

      A. O. Wade, for the respondent.
   Lewis, J.:

The defendant is a foreign corporation, organized under the laws of the State of Pennsylvania.

The plaintiff, having a cause of action against the defendant for services rendered in the State of Pennsylvania, caused a summons, and complaint to be served upon one Hugh King, who was at the time one of the defendant’s directors and a resident of this State.

As the cause of action arose out of the State, the service upon King did not give the court jurisdiction of the action unless the defendant, had at the time of such service property within this State. (Subd. 3,. § 432, Code of Civ. Proc.)

All the evidence bearing upon the question whether the defendant in fact had property in New York was furnished by the affidavits of a Mr. Berwald and that of the plaintiff. Berwald’s affidavit purported to have been made before Samuel Crumbine, a notary public in and for Crawford county, State of Pennsylvania, on the 2Gth day of November, 1894. The material part of his affidavit bearing upon the question is as follows :

“ I am one of the directors of the defendant named in the above-entitled action. The said defendant is a corporation duly organized, and existing under the laws of the State of Pennsylvania, and is,, and since its organization has been, engaged in doing business in said last-mentioned State; its principal office and place of business, under said laws is in the city of Bradford, county of McKean, and State of Pennsylvania. It has not, and never has had, an office or place of business in the city of New York or State of New York. Tt does not now, and did not at the time of the attempted service of the summons and complaint herein, transact any business within the city or State of New York, neither had it then nor has it now any property, nor has it at any time had any property of any kind situate in said State of New York; that Hugh King, upon whom said attempted service was made, is one of the directors of said corporation, and is not otherwise connected with or concerned in its business, and the said Hugh King is not an officer of said company except being one of its directors as aforesaid, and he does not now, and did not at the time of said attempted service, transact any business for or on account of said defendant corporation anywhere within the State of New York. He did not at that time have, and has not now, any property of said defendant in his custody within the State of New York, and he did not then, and does not now, maintain azi office for it, the said defendant corporation, anywhere in the said State of New York.”

There is nothing in the case showing the day wlien the service upon King was made. The summons and -complaint bear date March 9, 1894.

It appears izr the affidavit of Mr. Wade, the defendant’s counsel, used upon the hearing of the motion, that the defendant’s time to answer the complaint was extended by stipulation till the 23d day of Novembei’, 1894. The 'service must have been made prior to that date.

Berwald’s affidavit is cilticised by the plaintiff’s counsel. He suggests that it does not appear that Berwald in fact had any knowledge as to whether the defendant had property in the State at the time of the service upon King; that it nowhere appeal’s in the affidavit when he became one of the defendant’s directors; that for anything that appeal’s to the contrary in the affidavit, he may have become a director months after the service of the papers on King ; that the source of his information as to the property of the corporation is not stated. It is claimed that the affidavit amounts simply to the opinion of the affiant.

The affidavit of the plaintiff, on the contrary, states positively that the defendant did own property in the State at the time of the service.

The location and description of the property are given, and the sources of the plaintiff’s knowledge are fully stated.

It would seem that the weight of evidence upon the question was fairly with the plaintiff.

A preliminary objection was made to the reading of Berwald’s affidavit upon the ground that it was not properly certified so as to entitle it to be read. It purports to have been taken before Samuel Grumbine, a notary public in and for Crawford county, in the State of Pennsylvania. The certificate is to the effect that Grumbine, by whom the annexed and foregoing affidavit was taken, was at the date thereof an acting notary public in and for said county, * * * duly qualified and as such duly authorized by the laws of this Commonwealth to take the same. And further, that I am acquainted with the handwriting«of the 'said notary public, and believe the signature purporting to be his to be genuine, and that the same is executed according to the laws of Pennsylvania.” The certificate was made by P. P. Moyer, clerk of the courts of Crawford county.

It is provided by section 844 of the Code of Civil Procedure that an affidavit taken in another State may be used here, provided it was taken “ before an officer authorized by the laws of the State to take and certify the acknowledgment and proof of deeds to be recorded in the State.”

This certificate stated that Grumbine was an acting notary, andas such was duly authorized by the laws of Pennsylvania to take the affidavit; but it failed to state that he was authorized by the laws of that State to take and certify the acknowledgment and proof of deeds to be recorded in that State, and the question is whether the certificate was in substance and effect in compliance with the requirements of said section, so as to entitle the affidavit to be used. If it follows that because Grumbine was a notary public lie could take acknowledgments of deeds in that State, then the certificate was sufficient.

The duties of notaries differ in different States. ■ The power to take acknowledgments of deeds so as to entitle them to be recorded was first conferred upon nbtaries in this State by chapter 360 of the Laws of 1859. "Whether the Legislature of Pennsylvania has ever conferred like powers upon its notaries does not appear from the case.

All tlie safeguards which the Legislature has provided for the use of a substitute for conunon-law evidence in the administration of justice in our courts should be enforced.

Taking and certifying the acknowledgment and proof of deeds to be recorded is an important official act. Important interests are frequently involved thereby. The words quoted from section 844 were used, we think, for a purpose.. It was thought by the Legislature that it would be proper to allow an affidavit made in another State to be used here, provided it was taken before an official who had by the authority of the State appointing him, been deemed worthy to have been invested with the power to take the acknowledgment of deeds to be recorded, a very different official act from the simple administration of an oath.

A more liberal construction has been given to this provision of the Code of Civil Procedure by some of the cases than the one we are inclined to adopt.

We are of the opinion that the affidavit was not properly certified so as to entitle it to be used upon the motion.

The defendant consequently failed to make a case entitling it to the order. The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the service of the summons and complaint denied.

Bradley, Ward and Davy, JJ\, concurred.

Order reversed and motion denied, with ten dollars costs and disbursements.


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    Marion E. Stone, Appellant, v. Alvah D. Pratt, Respondent.

      Attachment — not an original process — its office — power of the court under Code Oiv. Proe. | 728, to amend, the warrant.

    An attachment, under the Code of Civil Procedure, is not an original process by which an action is commenced, but is a mere proceeding in the action. Its office is not to give the court jurisdiction, but to obtain possession of and hold the debtor’s property until the recovery of judgment, thereby preventing him from fraudulently disposing of it.
    The word “must,” as used in the Code of Civil Procedure (§ 641), where it is stated that a warrant of attachment must briefly recite the grounds for the

      attachment, is not to be construed as mandatory nor as preventing the amendment, in a proper case, of an attachment where there has been an inadvertent error in the statement of its grounds.
    The grounds for an attachment, as recited therein, were “that said defendant has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, his property, with intent to defraud his creditors; ” the affidavits upon which the attachment was issued made a meritorious case.
    Upon appeal from an order denying the motion of the plaintiff to amend the warrant upon the ground that the court did not possess the power to do so, and from an order vacating such attachment,

      Held, that the court had power, under the Code of Civil Procedure (§ 738), ' to amend the attachment by substituting the word “and” for the word “ or,” so that the attachment would read that said defendant “has assigned, disposed of or secreted and is about to assign,” etc.
    Appeal by the plaintiff, Marion E. Stone, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 22d day of August, 1895, denying the plaintiff’s motion to amend a warrant of attachment heretofore granted in this action, and also from an order made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 22d day of August, 1895, vacating such attachment.

      Thomas Raines, for the appellant.

      Olcwence E. Shuster, for the respondent.
   Lewis, J.:

A warrant of attachment was granted in this action on the 18th day of July, 1895. The grounds for the attachment were recited therein to be, that said defendant has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete, his property with intent to defraud his creditors.”

The attachment was executed, and the defendant moved to vacate and set it aside upon the ground, first, of the insufficiency of the affidavits upon which the warrant was granted, and for the further reason that there was a failure to recite therein any ground for the attachment. The defendant’s motion was based upon, the original papers on which the attachment was granted.

Plaintiff thereupon obtained an order for the defendant to show cause why the attachment should not be amended by substituíing the word “and” for “or” in the clause in the attachment in which the grounds were recited, so that it would read, that said defendant “ has assigned, disposed of or secreted, and is about to assign,” etc.

The motions, by consent of the parties, were heard together.

The Special Term justice held that the papers upon which the attachment was issued were sufficient to warrant its issue, but that the grounds upon which it was granted were not properly stated in the warrant, and denied the plaintiffs motion to amend, for the reason that he concluded that he did not possess the power to grant the motion.

Defendant’s motion to vacate the attachment was granted.

It was quite satisfactorily shown by the affidavits upon which the attachment was issued that the defendant had been fraudulently disposing of a portion of his property with the intent to defraud his creditors, and that he was about to assign, dispose of or secrete the balance of it with a like intent. The papers made a very meritorious case for the attachment, but in preparing the warrant, by inadvertence, plaintiff’s attorney used the word “ or.” instead of “ and.”

It is provided by section 611 of the Code of Civil Procedure that a warrant of attachment must be subscribed by the judge and the plaintiffs attorney, and must briefly recite the ground for the attachment.

The only question we are required to consider is whether the provision requiring the statement of the ground of the attachment is so far mandatory that the court was powerless to correct the inadvertent error. It was not a case of a failure to state the ground for the reason that none in fact existed, for, as stated, the two reasons which the draughtsman intended to state, in fact, existed.

The attachment under our Code is not an original process by which an action is commenced; it is a mere proceeding in an action. This action was commenced by the service of the summons and complaint. The office of the attachment was to obtain possession of and hold the debtor’s property until the recovery of the judgment, and thereby prevent him from fraudulently' disposing’ of it. The office of the attachment was not to give the court jurisdiction of the action.

The word “ must ” in statutes has been frequently construed not to be mandatory. It was so held in Brinkley v. Brinkley (56 N. Y. 192); Jenkins v. Putnam (106 id. 275); Spears v. Mayor, etc. (72 id. 442); The People ex rel. Cavanagh v. McAdam (28 Hun, 284); The People ex rel. Lefever v. Supervisors of Ulster County (34 N. Y. 268); Dutchess Country Mut. Insurance Co. v. Van Wagonen (132 id. 404).

There is nothing in section 641 expressly providing or which indicates that the Legislature intended that a failure to fully state the grounds for the attachment should necessarily make it void. There being nothing in the statute prohibiting it, the court, we think, had the inherent power to permit the amendment. The attachment, being a process in the action, power to amend it was given the. court by section 723 of the Code of Civil Procedure, which provides that the court may at any stage of the action, in furtherance of justice, amend any process or other proceeding by correcting a mistake, etc.

Orders permitting amendments in similar cases have been sustained in the cases of Kissam v. Marshall (10 Abb. Pr. 424);. People ex rel. N. Y. C. & H. R. R. R. Co. v. Cook (62 Hun, 303) Gribbon v. Freel (93 N. Y. 96); Peiffer v. Wheeler (76 Hun, 280) The Thames & Mersey Insurance Co. v. Dimmick (51 N. Y. St. Repr. 41); Kibbe v. Wetmore (31 Hun, 424).

In the latter case the attachment was issued upon the ground that the defendant was a non-resident of the State, which was the only ground stated in the attachment. The court, on motion, allowed the writ to be amended by inserting therein that the defendant had disposed of his property with intent to defraud his creditors, and had kept himself concealed with like intent and with intent to avoid service of process.

The ease of Cronin v. Crooks (143 N. Y. 352), upon which the' respondent mainly relies to sustain the order, can, we think, be distinguished from this case. Tlieré the affidavit upon which the-attachment was issued stated but a single ground, to wit, that the defendant had assigned and disposed of her joroperty with intent,, etc. It was recited in tlie warrant of attachment that defendant. has assigned and disposed of, or is about to assign or dispose of, her property,” with intent, etc.

It was held that there was a failure to state any ground in the attachment, for the reason that to state in the alternative is to state neither the one nor the other fact.

The question whether the court below possessed the power to grant an amendment of the attachment was not presented to the court for decision, for in Cronin v. Crooks, so far as it appears, no such motion had been made. The amendment ashed for here was. manifestly in the interest of justice, and would have been granted had the court concluded that it possessed the power so to do.

As we are of the opinion that the court had the power to grant, the relief, and that it was a very proper case for its exercise, the order vacating the attachment and the order denying the plaintiff’s motion to amend should be reversed, and the plaintiff’s motion to amend the attachment be granted.

Bradley, Ward and Adams, JJ., concurred.

Orders reversed and motion to amend granted.


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    Abigail De Puy, Respondent, v. Jane Cook, Appellant.

      Civil Damage Act — the test of injury — a son voluntarily supporting an aged mother — when a verdict is not excessive.

    The test whether, within the meaning of the Civil Damage Act, a mother is injured in her means of support by the death of her adult son, in consequence of intoxication, is not whether she possessed physical strength which, if exerted to its utmost limit, would have enabled her to earn a living in case she could find employment.
    Where it appeared that a mother was sixty-three years of age, without property, and, up to the lime of the death of her son, did nothing beyond taking care of the household, and who, since his death, had been almost entirely dependent ■ upon the charity of friends, the conclusion is warranted that she had beeD deprived of her means of support by the death of her son.
    Where an adult son voluntarily assumes the support of an aged parent, unable to maintain herself, she is as much entitled to the protection, of the law as though her son had been compelled to support her under the Code of Criminal Procedure (§ 914).
    The court will not, in determining whether a verdict rendered under the Civil Damage Act is excessive, be sedulous to inquire whether the verdict exceeds, the probable cost of bare necessaries during the probable term of the plaintiff’s, life as computed from the annuity tables.

      A verdict for 51,825 lor damages occasioned by the death of a son is not excessive in the case of a woman sixty-three years old who is unable to support herself to any considerable extent.
    Appeal by tlie defendant, Jane Cook, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of the county of Cayuga on the 3d day of October, 1894, upon the verdict of a jury rendered after a trial at tlie Cayuga Circuit, and also from an order entered in said clerk’s office on the 20th day of March, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Teller t& limit, for the appellant.

      F. D. Wright, for tlie respondent.
   Lewis, J.:

The plaintiff’s son, Albert De Puy, was drowned on the 20th day ■of April, 1889, in a raceway near Auburn while in a state of intoxication caused in part by intoxicating liquors sold to him by one George Miles, who was a tenant of a saloon rented to him by the ■defendant.

This action was brought by the plaintiff, under the Civil Damage Act of 1873, to recover damages for injury to her means of support •occasioned by the death of her said son.

The deceased resided with his mother in the village of Owasco, a ■few miles distant from the city of Auburn. He drove into Auburn on the day he was drowned and went around among the saloons drinking liquor. He became intoxicated to such an extent that some of the saloon keepers refused to furnish him more liquor. He went into the saloon of Mr. Miles about eight o’clock in tlie evening •and called for and drank a glass of ale, which was furnished him by Miles. He was at tlie time considerably under the influence of liquor.

After drinking the beer or ale he requested Miles to furnish him •a bottle of whisky. Miles refused at first, but upon being assured by De Puy that he wished to use it the next morning for the purpose of straightening himself up, Miles furnished it and De Puy paid for it and left the saloon with the whisky.

Very soon thereafter he offered a drink from tlie bottle to a Mr. Baker. Baker declined and De Puy then put the bottle to his lips and apparently drank from it. Shortly after he fell down, then got np and went to his wag’on and started toward his home. As he was about to start he again invited Baker to drink. He was at the time very much intoxicated, so much so that Mr. Baker, after riding a short distance with him, became frightened at his manner of driving the horse and got out of the wagon and left the deceased to pursue his journey alone.

The evidence tends to show that De Puy, after Baker left him, left the direct road to his home and drove across a bridge and on to an embankment of the raceway of the Auburn "Water Works Company. His dead body and that of the horse were found a few hours thereafter in the water of the raceway. The horse when found was attached to the wagon.

The sale of the beer and whisky to the deceased by Miles .was proven by the undisputed evidence of two witnesses. That the deceased drank the beer and some of the whisky was quite clearly established, as was the fact that his intoxication at the time of his death was in part caused thereby.

He was, at the time of his death,’ thirty-three years old; was unmarried; he was an industrious, competent workman, and was in the receipt of a fair income from his daily, labor.

He devoted his earnings to the support of liis family, consisting of himself, his mother (the plaintiff) and an invalid sister. He had contracted to purchase the dwelling where he lived, and had paid part of the purchase price therefor, and was the owner of a small amount of personal property.

He was ordinarily sober, but would occasionally, when absent from home, get intoxicated. He had supported his mother from the time he was seventeen years old until his death. The plaintiff was a widow sixty-three years old, and was in rather poor health, although she was able to do and did do most of the family housework, and made and repaired a portion of the deceased’s wearing apparel.

She had no property except some small articles of household furniture, and had no other means of support, except that furnished by her son.

The ground upon which the appellant’s counsel mainly relies for tlie reversal of tlie judgment is that the plaintiff failed to show that she had been injured by the death of her son in any means of support to which she was legally entitled.

Chapter 646 of the Laws of 1873, known as the Civil Damage Act, provides, so far as is material to this case, as follows :

“Every * * * parent * * ■ * who shall be injured in person or property or means of support * * * in consecpience ■of the intoxication, habitual or otherwise, of any person, shall have ■a right of action in his or her name against any person or persons who shall, by selling or giving away intoxicating liquors, cause the intoxication in whole or in part of such person or persons, and any person or persons owning or renting or permitting the occupation of •any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving intoxicating liquors aforesaid, for all damages sustained.”

It is the contention of the defendant that the plaintiff was shown to be able to support herself by her labor, and that, therefore, her •son was under no legal obligation to support her. The plaintiff testified that since her son’s death, a period of four or five years, she had been employed nursing the sick, in all about three weeks. That she worked when she was able to and could find anything to do, but that she had not supported herself entirely, but that her church' friends and other acquaintances had furnished her with supplies.

She had arrived at an age when most women, especially those not in robust health, avIio are without other means of support, are dependent upon otliei-s for their support.

The test is not whether the plaintiff possessed sufficient physical strength, if exerted to its utmost limit, to earn her living in case she should be so fortunate as to find employment.

Women of her age and condition of health are not likely to be ■able to find employment that is remunerative. Her case, we think, fairly came within the provisions of section 914 of the Criminal Code, which imposes upon a child of sufficient ability of a poor person Avho is old, impotent or decrepit, so as to be unable to work to maintain himself, the duty of maintaining such parent. This the deceased had voluntarily assumed to do, Avhich answers the requirements of the law as effectually as if the assistance had been rendered by compulsion. Stevens v. Cheney (36 Hun, 1) was an action brought under this Civil Damage Act. In discussing this question Haight, J., states the rule to be as follows: “ The law affords the same protection to those who perform their duty voluntarily as it does to those who reluctantly act under compulsion, and we are of the opinion that, if the parent is a poor person, ‘ within the provisions of the statute,’ it was the duty of the son to aid in his support; and, if he voluntarily did that, and the plaintiff has been deprived of his means of support by reason of the intoxication, that then he may recover even though his child is over the age of twenty-one years.”

The plaintiff was fairly shown to have been deprived of her means of support hy the death of her son. (Black on Intoxicating Liquors, § 308.)

The verdict was for $1,325. The appellant’s counsel contends that it was excessive. If we were to enter into a computation as to the probable cost of the bare necessaries for the support of the, plaintiff during the probable term of her life, computed by the annuity tables, it might not amount to $1,325. The plaintiff was receiving a generous, comfortable support from her son. She testified that lie was a good provider. Such support was of greater value to the plaintiff than would have been the bare necessaries of life. While she was able at the time of the death of her son to perform labor which would partially support her, her capacity for labor would naturally and in all probability lessen as she' advanced in years.

The jury was fully and correctly instructed upon the legal questions involved in the action, and we find nothing in the appellant’s exceptions calling for a new trial. The judgment and order should be affirmed.

Bradley, Ward and Davy, JJ\, concurred.

Judgment and order affirmed.


text:
    The People of the State of New York ex rel. Mary E. Hovey, Relator, v. Henry Leavenworth and Others, as Town Auditors of the Town of Lindley, Steuben County, New York, Respondents. The People of the State of New York ex rel. Harlo Carpenter, Relator, v. Henry Leavenworth and Others, as Town Auditors of the Town of Lindley, Steuben County, New York, Respondents.

      Veterans ■ — relief by towns upon orders of the &. A. S. — statute strictly construed— claim should show details — town auditors and the town board are separate bodies.

    Chapter 261 of the Laws of 1888, conferring upon the commander of a post of the Grand Army of the Republic power to issue orders under which a town must provide and pay the sums mentioned in the order to indigent veterans of „ the Civil War, should be strictly construed, for the reason that the relief committees appointed by the commanders to report whether such relief should be granted are not responsible to the residents of the locality for their action, nor for the manner in which they discharge their duties, and no safeguard against fraud or extravagance is provided in the statute.
    Under the Town Law (Chap. 569 of the Laws of 1890) the town auditors and the town board are different bodies; while the board of town auditors has the power of the town board in respect to auditing, allowing or rejecting claims, it 1ms not the power to pay them.
    A woman presented to the board of town auditors a claim for the board of a veteran, under an'order issued by the commander and quartermaster of a post of the Grand Army of the Republic, for seventy-five dollars for food, care and assistance furnished to the veteran during and about the month of July, 1893. No detailed statement was furnished either as to the food, care or assistance, or as to the price charged per day or week, or as to the length of time the veteran had been boarded or cared for. The services, apparently, were rendered prior to the time of the recommendation of the relief committee under which they purported to have been furnished. It also appeared that the claimant was the wife of a member of the relief committee of the post, and that the veteran had received, in addition to the relief mentioned in this claim, other very substantial relief just prior to the period for which the present claim was made.

      Held, that the auditing board of the town was justified in rejecting the claim.
    Oertioraris issued out of tlie Supreme Court and attested on the 23d day of January, 1895, directed to Henry Leavenworth, Erank Camp and Theodore Harrison, composing the board of town auditors of the town of Lindley in Steuben county, New York, directing them to certify and return to the office of the clerk of the county of Steuben all and singular their proceedings, decisions and actions in the premises in relation to the claims of Mary E. Hovey and Harlo Carpenter, and all actions in relation thereto by said board to the end that said decisions and actions might be reviewed and corrected by the court.
    The first above-entitled proceeding was brought to review the •action of the defendants as town auditors of the town of Lindley, Steuben county, in rejecting and disallowing an account of seventy-one dollars presented to them by the relator for audit and payment. The account was for relief alleged to have been furnished to one Jerry Gleason, an indigent and suffering soldier of the War of the Rebellion.
    The defendants Leavenworth and Camp made return to the writ. Tlie defendant Harrison made no return, for he had before the service of the writ removed from the State and ceased to be a member of the board. The relator alleged in her petition that she caused to be presented to the defendants on or about November 8, 1894, a claim against the town of Lindley for the care, board and attendance of one Gleason, who was a suffering and indigent soldier of the War of the Rebellion and that her claim was improperly and unjustly rejected and disallowed by said board; that the claim was duly proved, and was evidenced by the recommendation of the relief committee appointed for the town of Lindley, and was ordered to be paid by the commander and quartermaster of W. W. Angle Post No. 372, Grand Army of the Republic, located at Addison, Steuben county, the nearest post to the town of Lindley, and the only post which had undertaken to care for indigent or suffering soldiers in said town.
    It was further stated in the petition that a notice was duly filed in the clerk’s office in the town of Lindley that said post had undertaken the care of such soldiers, and of the appointment of a committee for their relief; that the petitioner and Gleason both resided in the town of Lindley, and that the relief furnished to Gleason was necessary; that lie was, at the time, indigent, sick and suffering ; that lie had been a soldier of the late war and had been a resident of the State for more than a year at the time the relief was furnished; that the relief was furnished pursuant to Touchers which were attached to the petition, which vouchers consisted of two recommendations of John E. Gibson and Jerome B. Plovey, relief committee, dated Bindley, New York, July 28, 1893, one recommending that relief to the amount of seventeen dollars, and the other that relief to the amount of fifty-four dollars be furnished to Jerry Gleason, an indigent and suffering soldier who had served in the War of the Rebellion, and also had been a resident of the State for more • than a year, and was a resident of the town of Bindley, and also two orders purporting to be signed by B. O. Gardner, commander, D. O’Keefe, quartermaster, W. W. Angle Post No. 372, G. A, R., on the town of Bindley, for said sums of seventeen dollars and fifty-four dollars, to be paid to the holders thereof.
    The petition was duly verified. Upon this petition a writ was issued, directing the defendants to certify their proceedings in refusing to audit and allow said claims. The defendants made a return to the writ, stating in effect that the claim was presented to the board; that they duly investigated and rejected it on the 9th day of November, 1894; that their rejection of the claim was founded or based principally upon the following facts : That upon the 10th day of June, 1893, a notice was filed in the clerk’s office of the town of Bindley by B. O. Gardner, to the effect that he was commander of W. W. Angle Post No. 372, before mentioned, and that that post was located in the town of Addison, in said county, and that said post intended to undertake the relief of indigent soldiers, sailors, etc., as is provided for by chapter 261 of the Baws of 1888, and that John E. Gibson, Jerome B. Hovey and "William E. Wilson, members of said post, but residents of said town of Bindley, had been appointed relief committee for said town; that there was no post of the Grand Army of the Republic in the town of Bindley ; that no other paper was by said post filed in said clerk’s office during the year 1893, ■except when said board met, November 9, 1893. Jerome B. Hovey, instead of Mary E. Hovey, presented to said board the same claim hereinbefore mentioned, unverified; that in November," 1893, a certificate was presented to said board of auditors of the town of Bindley by said Gardner, commander, and Edward P. Seaman, adjutant, of said W. W. Angle Post, which stated that said post had undertaken the relief of indigent soldiers, etc., in said town of Lindley, and that the sum of $200 was necessary or would become necessary for the purpose aforesaid for the current year of 1893 and 1894, and requested the board of said town to audit said amount at their annual meeting in 1893.
    The relator’s claim as presented was in the'words and figures following:

      “ Town of Lindley to Mary E. Hovey, Dr., for food, care and attendance furnished Jerry Gleason, an indigent and suffering soldier of the "War of the Rebellion, during and about the month of July, 1893, upon the order of B. C. Gardner, commander, andD. O’Keefe, quartermaster, of W. W. Angle Post 372, Grand Army of the Republic, $71.00.”
    The bill was verified by Jerome B. Hovey only; it was further stated in the return that the board had investigated the claim and learned that Gleason was drawing a pension of at least ten dollars per month at the time the relief was claimed to have been furnished; that he was a citizen of the town of Addison, was a single man with no one but himself to support; was a blacksmith by trade, and had received in the latter part of April, 1893, the sum of seventy-nine dollars for work performed by him as a blacksmith; that of the pension money Jerome B. Hovey had received thirty dollars; that Gleason was never in the town of Lindley to board or work until he came there to work as a blacksmith in February, 1893, but had a residence' and settlement in the town of Addison; that the relator is the wife of Jerome B. Hovey, and lives with and keeps house for him, and has no other home or separate estate of her own; and that the .claim, if any exists, is the property of her husband; that the board of auditors had no notice or knowledge of the items of the claim, or what prices were charged for the relief furnished to Gleason; that the post commander in October, 1894, filed a notice or detailed statement, as provided by law, in which it was stated that the amount of the bills for relief to soldiers in the town of Lindley for the preceding year, and the names of the persons furnishing such relief, were: Harlo Carpenter, $98; Jerome B. Hovey, $71; Dr. A. A. Aldrich, $42; in all, $211; and that the amount recommended as necessary for the next current year, 1894-95, was $189.25.
    The auditors, after rejecting said claim, completed their labors and adjourned sine die. The return further stated that the relator’s claim was fairiy and honestly considered and audited, and rejected by'said board both on the facts'and the law.
    Among the items of relief furnished during the years 1894-95, was one of ninety dollars in favor of John F. Gibson, who was a member of the relief committee.
    The second above-entitled proceeding was submitted, without argument, with the case of the relator Hovey.

      H. W. Scmford, for the relators.

      Gabriel L. Smith, for the defendants Leavenworth and Camp.
   Lewis, J.:

Chapter 261 of the Laws of 1888 was enacted for the purpose of furnishing relief to indigent and suffering soldiers, sailors and marines who served in the War of the Rebellion who might need assistance.. To that end it was provided in said act that the proper auditing board of any town where the poor are supported by the town instead of the county, shall provide such sum or sums of money as may be necessary to be drawn upon by the commander and quartermaster of any post of the Grand Army of the Republic in said town; or, if there is no post in said town, then by the commander and quartermaster of the post located nearest to the city or town, upon the recommendation of the relief committee of said post, in the same maimer as is now provided by law for the relief of the poor, provided the soldier is and has been a resident of the State for one year or more, and the orders of said commander and quartermaster shall be the proper vouchers for the expenditure of said sum or sums of money. Section 2 provides that in case there be no post of the Grand Army of the Republic in any town in which it is necessary that such relief as provided for in section 1 should be granted, the town board of said town shall accept and pay orders drawn by the commander and quartermaster aforesaid located in the nearest city or town, upon the recommendation of the relief committee, who shall be residents of the town in which such relief may be furnished. It is provided by section 3 of said act that the commander of any post which shall undertake the relief of indigent veterans, before the acts of the commander and quartermaster may become operative in any town, shall file with the town clerk of said town a notice tliat said post intends to undertake such relief, giving the names of the relief committee, and the commander is required annually, during the month of October, to file a similar notice and also a detailed statement of the amount of relief furnished during the preceding year, with the names of the persons to whom such relief shall have been furnished, together with a brief statement in each case from the relief committee upon whose recommendation the orders were drawn.

The execution of the laws of our State providing for the relief of the poor is generally confided to officials selected by the electors of the town or county, as the case may be, and as these officials derive their authority from the electors of the town, they naturally feel a degree, of responsibility to discharge the duties of their office with due regard to the interests not only of those who may need assistance, but also in the interests of their constituents, many of whom contribute as taxpayers to raise the funds appropriated for such relief.

By this act of 1888 members of relief committees are appointed by the commanders of Grand Army posts. In this case the commander making such appointment was not a resident of the town of Bindley. Committees thus appointed are not responsible to the residents of the locality for their appointment nor for the manner in which they discharge their duties. No safeguards against fraud or extravagance in ordering relief seem to be provided for in said act. Neither the officers of the Grand Army nor the committee of relief are public officers, neither do they act under the sanction of any official oath. It was said by Judge Earl in the case of The People ex rel. Crammond v. The City of Rome (136 N. Y. 496), in construing this statute, that such an extraordinary statute, which thus places the public money at the uncontrolled disposal of irresponsible persons not chosen by the people or appointed by any public body, or under the control of any public officer, should, so far _as possible, be limited in its operation and scope, and public policy requires that it should be strictly and narrowly construed.”

We are required to determine this case upon the petition, writ and return. (Code Civ. Proc. § 2138.) The board, in considering .and rejecting this claim, were called upon to act upon the facts presented to them. The account presented by the relator was for seventy-one dollars, which, as was alleged in the account, was for food, care and assistance furnished Gleason during and about the month of July, 1893. The recommendations of the relief committee, upon the strength of which the relator claims to have furnished, the relief, each bore date July 28, 1893 ; the orders upon the town to pay the sums mentioned bore the same date, which was presumably subsequent to the time the relief in question was furnished the soldier. The relator failed .to furnish any detailed statement of what food, care and assistance she had furnished, what price she had charged per day or week, or what length of time she had boarded and cared for Gleason. No detailed account, so far as appears, was kept by the relator of her services and care.

It was made to appear to the board that Jerome B. Hovey, the husband of the relator, had presented in his own behalf a claim to the board for the same amount in 1893, which they rejected. It further appeared that John F. Gibson had a bill for relief furnished this same soldier, during the months of May and June, 1893, of ninety dollars. Both Hovey and Gibson were members of the relief committee for the town of Bindley for the years 1893 and 1894. It was made to appear to the board that these two members of the relief committee had furnished relief which, as such committee, they had recommended.

The error of the board complained of by the relator consisted in rejecting and disallowing her account. It may well be doubted whether, under the act in question, they had, as the auditing board of that town, the authority to allow and pay her claim. By section 1 of that act, the only duty the auditing board is required to perform is to provide such sum or sums of money as may be necessary, to be drawn upon by the commander and quartermaster of the Grand Army post. It is provided by section 2 that “ in case there be no post of the Grand Army of the Republic in any town in which it is necessary that such relief as provided for in section 1 should be granted, the town board of said town * * * shall accept and pay the orders drawn.” The town auditors and the town board are two different bodies. The town board consists of the supervisor, town clerk and justices of the peace, or any two of such justices. (Laws of 1890, chap. 569, § 160.) Sections 172 and 173 of said act provide for the election of a town board of auditors, consisting of three members; while, by section 174, the board of auditors is vested with the power of the town board with respect to auditing, allowing or rejecting claims. The power to pay claims .does not seem to have been conferred upon them.

The case of The People ex rel. Harlo Carpenter v. The Same Defendants, as the Board of Town Auditors, etc., was submitted without argument with the case of the relator Hovey. Carpenter’s claim was for food, care and assistance furnished the same Jerry Gleason during the months of May and June, 1893, upon the order of the same commander and upon the recommendation of the same committee. There were two recommendations in Carpenter’s case; the first one was dated July 27,1893, and called for relief to the amount of seventy dollars. Indorsed upon this recommendation was the order of the commander and quartermaster for that amount. The second recommendation of the relief committee was dated July 27, 1893, and recommended relief to Gleason to the amount of twenty-eight dollars, upon which was indorsed the order of the commander and quartermaster upon the town for that amount. There was a failure in this as in the Ilovey case to state the items in the account. The claim was for food and attendance furnished to the same Mr. Gleason during the months of May and June, and amounted to ninety-eight dollars. So that the auditors were informed that it was claimed that relief had been furnished to Gleason during the months of May, June and July, amounting in all to $169, to a man who was at the same time in the receipt of a monthly pension of $10, and who had in the month of April of that year received for his. labor the sum of $79, making in all $278 for his support for a period of less than 100 days, being at the rate of about three dollars, per day.

If town auditors are to be compelled to audit such bills upon such-evidence, the act under review will furnish a fruitful field for fraud, and extortion.

We think the defendants, upon the facts presented to them, were) justified in refusing to allow the claims.

The writs in both cases should be dismissed, but without costs.

Ward and Davy, JJ., concurred ; Bradley, J., not voting.

Writs of certiorari dismissed in both cases, without costs.


text:
    Aurora and Buffalo Plank Road Company, Respondent, v. Louis Schrot, Appellant.

      Plank, road — chap. 566 of 1890 applies only to turnpikes organized under the general act — extension of charter ■ — • when a right to collect tolls will be implied.

    Chapter 566 of the Laws of 1890, entitled “ An act in relation to transportation corporations, excepting railroads, constituting chapter 40 of the General Laws,” only applies to turnpikes organized under the General Turnpike Act.
    In an action brought by a plank road company to recover tolls for the use of its road, it appeared that the plaintiff was a domestic corporation created under chapter 191 of the Laws of 1846, and the several acts amendatory thereof and supplemental thereto; that the defendant resided within one-half mile of a toll gate of the plaintiff and passed through said gate without paying toll while not going to any grist mill, church or religious meeting, or engaged iu the transportation of other persons or property.
    It further appeared that the plaintiff’s charter was extended by chapter 137 of the Laws of 1863, and further extended by virtue of a resolution of the hoard of supervisors of the county pursuant to chapter 135 of the Laws of 1876, as amended by chapter 253 of the Laws of 1879. Chapter 137 of the Laws of 1863 provided that all the general laws of the State should remain in force and binding upon the plaintiff during the extended term, and did not in terms confer upon the plaintiff the right to collect tolls during the extended period.

      Held, that it was not the intention of the Legislature to grant to said company simply the right at its own expense to maintain a plank road for the accommodation of the public, without having the right to reimburse itself by collecting tolls;.
    That the right to collect tolls was implied in the extension granted by the act, and that the defendant was not entitled to exemption from paying the tolls in question.
    Appeal by tbe defendant, Louis Scbrot, from a judgment of tbe County Court of Erie county, entered in tbe office of tbe clerk of tbe county of Erie on tbe 28th day of March, 1895, reversing a judgment rendered by a justice of tbe peace of the town of West Seneca in tbe county of Erie.

      George O. Miller, for tbe appellant.

      F. J. Blackmon, for tbe respondent.
   Lewis, J.:

This action was brought in a Justice’s Court, in tbe year 1894, to recover of tbe defendant seventeen dollars and thirty-five cents, claimed, to be due from him in tolls for the use of the plaintiff’s plankroad.

The justice rendered a judgment for the defendant. ITis judgment was reversed by the Oount-y Court, and an appeal was taken from the County Court to this court. The facts were stipulated before the justice as follows:

“ That plaintiff is a domestic corporation, created under chapter 191 of the Laws of 1846, and the several acts amendatory thereof and supplementary thereto; that the plaintiff has five continuous miles of plankroad, and has maintained a toll gate for more than ten years for the collection of tolls; that the defendant resides within one-half mile of said toll gate, and has so resided there for two years; that the defendant has passed through said gate, and would, if liable for the tolls at said gate, be liable to the plaintiff to the amount of seventeen dollars and thirty-five cents; that in passing said gate defendant was not going to any grist mill, church or religious meeting, or engaged in the transportation of other persons or property.
“ That the plaintiff has demanded said toll of the defendant.
“ The plaintiff’s charter was extended by chapter 137 of the Laws of 1863 to May 11, 1888 ; that by the provisions of chapter 135 of the Laws of 1876, as amended by chapter 253 of the Laws of 1879, the existence of said corporation was continued, by virtue of a resolution of the board of supervisors, for twenty-one additional years.”

Section 8 of the act of 1846, incorporating the plaintiff, provided that whenever any five continuous miles of road should be completed it should be lawful for the board of directors to cause a toll gate to be erected, at which the company was authorized to demand and receive toll, not exceeding, for a vehicle drawn by one animal, three cents; if drawn by more than one animal, for every such additional animal, three cents, etc.

The act of 1863, extending the corporate life of the plaintiff, provided that all the general laws of the State should remain in. force and binding upon the plaintiff during the extended term. A general act for the incorporation and government of plankroad and turnpike road companies was passed in 1847 (Chap. 210).

By section 35 of that act plankroads incorporated under it were authorized to erect toll gates upon their road, but not within three miles of each other, and demand and receive toll as follows: For a vehicle drawn by one animal, three-quarters of a cent per mile; for a vehicle drawn by two animals, one and one-lialf cents per mile; and for any vehicle drawn by more than two animals, one-lialf cent per mile for every additional animal. The act under which the plaintiff was incorporated does not seem in any manner to have been altered or affected by the act of 1847.

The appellant contends that the act extending the corporate life of the plaintiff gave to it simply and only the right to exist as a corporation and not the right to collect toll. lie bases this contention upon the fact that the act of 1863 did not in terms confer upon the plaintiff the right to continue to collect tolls during the extended period. We do not think that it was the intention of the Legislature to grant to the plaintiff simply the right, at its own expense, to maintain a plankroad for the accommodation of the public without having the right to reimburse itself by collecting tolls. The right to collect tolls was unquestionably implied in the extension mentioned.

Article 9 of chapter 566 of the Laws of 1890, entitled “An act in relation to transportation corporations, excepting railroads, constituting chapter 40 of the General Laws,” provides for the incorporation of turnpike, plankroad and bridge companies. Its provisions are very similar to those of the act of 1847. It provides that five or more persons may become a corporation for the purpose of constructing, maintaining and owning a plankroad. Yarious provisions are contained in the act to which the incorporators are required to conform before they are entitled to collect toll. Among others, they are required to obtain a certificate of the commissioners of highways of the town of the completion of five consecutive miles of road; upon filing such certificate in the office of the county clerk, the company is authorized to erect toll gates and demand and receive certain rates of toll which are fixed by the act. At the end of the section fixing the rates of toll is the following : “No tolls shall be charged or collected at any gate from any person going to or from public .worship, a funeral, school, town meeting or election at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which he shall be required to attend as a juror or witness, and when going to or from his legally required work upon any public highway, ¡oersons living within one mile of the gate by the most usually traveled road, when not engaged in the transportation of other persons or property, and troops in the actual service of this State or of the United States.”

It is the contention of the appellant that this provision of the act of 1890 quoted applies to the plaintiff, and that he was entitled to exemption under the clause exempting persons living within one mile of the gate by the most usually traveled road, it being conceded that he was not engaged in the transportation of other persons or property when passing the gate at the times for which the plaintiff seeks to recover toll. 'The only exemptions from paying toll provided by the act incorporating the plaintiff were in favor of persons living within one mile of the toll gate, when they were going to or returning from a grist mill, church or religious meeting. The act of 1890, referred to, was amended in 1892, but no-change seems to have been made in the article relating to plankroads.

It is apparent, from an examination of the article in question (Art. 9 Of chap. 566 of the. Laws of 1890), that not any of its many provisions which precede the exemption clause have any application to-the plaintiff;-neither does the first part of the section containing said, clause.

Had it been the intention of the statutory revisers that the exemption clause of the act of 1890 should apply to the plaintiff they would undoubtedly have made it into a separate section, and they would have used language clearly indicating such intention, while the language of the section providing for exemptions is general to-the effect that toll shall not be collected of such persons at any gate. We are of the opinion that it applies only to gates upon roads organized under the general act. The act under which the plaintiff was incorporated is not included in the schedule of laws repealed by the act of 1890. Some general acts have been passed in reference to plankroads which apply to the plaintiff. An act passed in 1850,. providing that no plankroad or turnpike road company should thereafter erect or put up a hoist gate on-its road, was evidently general in its application, and applied to all the plankroads of the State, including the plaintiff, as did also the act of 1855, requiring all plankroad companies to make and file annual reports. It was such laws that were referred to in the clause of the act of 1863, providing that the general laws of the State should be binding upon the plaintiff.

We are of the opinion that the defendant was not entitled to the ■exemption from paying the tolls in question, and that upon the stipulated facts the plaintiff was entitled to recover the amount mentioned in the stipulation. It follows that the judgment of the County Court reversing the justice’s judgment was correct, and should be affirmed, with costs of this appeal.

Bradley and Ward, JJ., concurred.

J udgment of the County Court affirmed, with costs.


author: Lewis, J.-:

text:
    Berwind-White Coal Mining Company, Appellant, v. George S. Ewart, Respondent.

      •Judgment creditor's action against a stockholder— the issuing and return of am execution against the corporation is a condition precedent thereto.

    The issuing and return of an execution against a corporation is a condition precedent to the right of a j udgment creditor of a corporation to maintain an action against a stockholder of such corporation to recover his debt, and before a stockholder of a corporation can be made liable for such debt it must appear that the judgment creditor has attempted in good faith to collect his judgment from the corporation.
    Appeal by the -plaintiff, the Berwind-White Coal Mining Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 6th day of March, 1895, upon the decision of the court dismissing the complaint, rendered after a trial at the Circuit Court held in and for the county of Livingston and a Special Term held in and for the county of Monroe, the trial having been adjourned to said Special Term.

      JE. A. Nash, for the appellant.

      J. B. Adams, for the respondent.
   Lewis, J.-:

The plaintiff is a judgment creditor of the Livingston' Salt Company, a corporation organized under the Business Corporation Law •of June 21, 18Y5 (Chap. 611).

This action was brought by the plaintiff as such judgment creditor, to recover of the defendant an amount equal to the stock held by him, to wit, $300, on the ground that the whole amount of the capital stock of said company had not been paid in, neither had the certificate of such payment been made and recorded, as required by law.

"The issuing and return of an execution upon the plaintiff’s judgment against the salt company was a condition precedent to the plaintiff’s right to maintain this action.

It was shown upon the trial that all the prerequisites to the right to maintain the action had been complied with by the plaintiff with the exception of a proper return of an execution. An execution had been duly issued to the proper sheriff, and he had by virtue thereof levied upon a quantity of salt which was, in fact, at the time of the levy, the property of the salt company, and was liable to sale under the execution.

The evidence tended to show that the salt company had, prior to the said levy, executed a transfer of the salt to one Shattuck. This transfer was shown to have been fraudulently made by collusion between the directors of the salt company and Shattuck. The execution had been returned unsatisfied in part after the levy was made and before the salt had been offered for sale under said execution. Before the defendant could be made liable in this action the plaintiff was required to attempt, in good faith, to make its debts out of the company. This, the evidence tended to show, it failed to do.

The finding of the trial court, that the pretended, sale of the salt to Shattuck took place on the,23d day of February, 1893, the same day, and presumably after the company’s commercial paper had gone to protest, is fairly sustained by the evidence. The insolvency of the company was at that time unquestionably imminent' to the knowledge of its trustees, and the transfer of the salt to Shattuck -was made by them in contemplation of the insolvency of the company.

It is suggested by the appellant’s counsel that had the salt been sold by the sheriff under the execution there would not have been a sufficient amount realized therefrom to pay the plaintiff’s execution in full. That may be true, but the plaintiff is attempting to enforce against the defendant a statutory liability. It is not a case for balaiming probabilities. 'Without enlarging upon the facts wbieh are so fully and clearly set out in the opinion of the trial judge, we are satisfied that his findings and conclusions were fully sustained by the evidence, and that the judgment should be affirmed.

Bradley and Ward, JJ., concurred; Davy, J., not sitting.

Judgment affirmed.


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    In the Matter of the Application of The Erie Malleable Iron Company (Limited), to Take the Depositions of the Gould Coupler Company to Enable it to Frame its Complaint in an Action to be Brought against said Company. Erie Malleable Iron Company (Limited), Respondent; Gould Coupler Company, Appellant.

      Examination before action brought — action at lam to recover royalties where the amount of the material manufactwred is unhnovm— the plaintiff need not resort to an accounting in equity.

    The affidavit upon which an application was made by the Erie Malleable Iron Company for an examination of the Gould Coupler Company, to enable the former to frame a complaint in an action to be brought by it against the Gould Coupler Company, alleged that the Erie Malleable Iron Company had entered into a written contract with the Gould Coupler Company, by the terms of which it granted to the Gould Company the right to use all the processes which the Erie Company was using or might thereafter use in the manufacture of malleable iron; that it was also to provide a person to superintend the construction of the plant and was to furnish all patterns for furnaces and the like required in the construction of the plant; that the Gould Company agreed to pay certain royalties upon the material which it should manufacture; that the Erie Company had fully performed its agreement, hut that the Gould Company, althoirgli it had manufactured large quantities of iron, refused to make any statements of its production and had failed and refused to pay the royalties, and that consequently the Erie Company was unable to determine what sum was due it for royalties, a fact which it desired to know in order to begin an action therefor.

      Held, that the case came directly within those provisions of the Code of Civil Procedure (§§ 870-873) which relate to the examination of a person about to become a party to an action;
    That the information sought was presumably within the exclusive knowledge of the Gould Company and was presumably contained in its books;
    That the Erie Company would not be compelled to bring an action in equity for an accounting to the end that the facts sought might be elicited by a trial in that form of action.

      ' Appeal by the GoulcI Coupler Company from an order of tlie Supreme Court, granted at the Erie Special Term and entered in the. office of the cleric of the county of Erie on the 18th day of March, 1895, denying its motion to’ set aside an order heretofore made for the examination of said Gould Coupler Company and its officers at the instance of the Erie Malleable Iron Company, Limited, before action brought.

      JB. F. Falce, for the appellant.

      Charles A. Pooley, for the respondent.
   Lewis, J.:

The order requiring the Gould Coupler Company and its officers to appear before a referee with its boohs, and submit to an examination, was made upon the affidavit of Mr. Benjamin J. ’Walker, setting forth that a written contract was entered into between the two companies named in the above title, on the 26th day of January, 1891, by the terms of which contract the Erie Company granted the Gould Company the right to use all the processes which the Erie Company was using or might thereafter use in the manufacture of malleable iron, and agreed to furnish the services of Mr. Walker to superintend the construction of a malleable iron plant, which was to be erected by the Gould Company, and to furnish to said Gould Company all patterns for furnaces, plates, etc., required in said construction. In consideration whereof the Gould Company agreed to pay in quarter-yearly payments to said Erie Company, certain royalties mentioned and provided for in said contract for the use of the processes mentioned, upon. all the material which the Gould Company should manufacture and ship after the completion of the plant.

It was further stated in said affidavit that the plant was constructed and completed under the supervision of Mr. Walker, and that the Gould Company had manufactured and shipped under said contract large quantities of such material, amounting to many thousand tons, and that although the said Erie Company had in all respects performed the agreement upon its part, the Gould Company had -neglected and refused to furnish to the Erie Company statements of the tonnage of metal produced, manufactured and shipped within the terms of said contract, and had failed and refused to pay the royalties, or any part thereof, and is indebted to the Erie Company for the amount of said royalties; that the Erie Company was about to commence an action against the Gould Company to recover said royalties, but was ignorant of the amount of material which had been manufactured under said contract, and had no means of obtaining the facts but from the examination of said company and of its officers, whom it was alleged had the desired information, but had repeatedly refused to furnish it to the Erie Company; and that such examination was desired in order to enable the Erie Company to frame its complaint, which would be for a sum of money only. '

The affidavit contained proper allegations as to the residence of the two companies, and their officers.

A motion was made by the Gould Company at the Erie Special Term to set aside said order. The motion was founded upon the affidavits of the president and the treasurer of the Gould Company, and upon the affidavit of Mr. Walker, upon which the original order was granted.

This appeal was taken from an order denying the motion.

The affidavits of the president and treasurer contained allegations tending to show that the Erie Company had failed to perform the contract upon its part, and that the Gould Company had not used, to any extent, the processes mentioned in the contract. The contract referred to was made in the city of Buffalo, and the alleged cause of action arose in the State of New York.

We are satisfied after an examination of this case, and the authorities to which our attention has been called, that there is very little, if any, merit in the appeal. The facts present a case coming peculiarly within the provisions of sections 810 to 813 inclusive of the Code of Civil Procedure, which provide for such an examination of a person about to become a party to an action. While it is stated in the affidavits of the officers of the Gould Company that the Erie Company has failed to perform its contract, and hence has no claim upon the Gould Company, that question should be litigated upon the trial of the action, and not upon the hearing of such a motion as this. The information sought is presumably within the exclusive knowledge of the Gould Company, and presumably is contained in its books. It was its duty to furnish, to the Erie Company statements of the tonnage of metal produced, manufactured and shipped under said contract. It is claimed by the appellant that an action in equity for an accounting might be instituted, and the facts set forth elicited upon the trial of such action. The respondent is not compelled to resort to that form of action.

In order to intelligently frame a complaint in an action at law, it is entitled to the examination provided for by the order.

-The order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

.Bradley, Ward and Davy, JJ., concurred.

Order affirmed, with ten dollars costs and’ disbursements.


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    Roger Kane, as Administrator, etc., of Edward O’Toole, Deceased, Respondent, v. The Mitchell Transportation Company, Appellant.

      Negligence- — the measure of damages lo the next of kin is for the jury — -fellow-servants in unloading a vessel — verdict, when not excessive.

    The measure of damages in actions for negligence brought for the benefit of the next of kin of a decedent must usually be left with the jury, there being no-well-defined rule by which it can be determined.
    Upon the trial of an action brought to recover damages resulting from the death of-.the plaintiff’s intestate, caused by the alleged negligence of a deck hand belonging to a vessel owned by the defendant, it appeared that the deceased was working as a “ scooper” in uploading grain which was being elevated from a vessel into .a grain elevator, and that while so engaged one of the deck hands allowed a piece of timber used upon the deck to fall down the hatchway into the hold, and that in falling it struck and killed the deceased.
    It was a custom at the port in question for each elevator to appoint in the spring a boss scooper, who had entire charge of elevating grain, and who hired and discharged and paid his assistants, who were known as scoopers; the charges for elevating were paid by the vessel, but, as a matter of convenience, the general secretary of the association of the elevators in the city received from all the vessels the money paid for elevating, and at the end of each week paid to-the boss scooper his proportion of the moneys received, the balance of the money being paid to the elevator; the boss scooper divided this money amohgst the-scoopers according to the hours which each had worked during the week; neither the master nor the owner of the vessel had anything to do with selecting the elevator, that matter being determined by the consignee. It further appeared that after the scoopers had removed all the grain they could with their shovels the vessel’s crew attended to sweeping the decks and the hold, but that the boss scooper had no'control over the crew in any assistance which they might render. At the time of the accident the crew were engaged in sweeping the dock.

      Ileld, that the deceased was-not a fellow-servant with the deck hand who negligently threw down upon him the piece of timber which caused his death, and that the owners of the vessel were liable for the-act of their employee.
    It appeared that the deceased was twenty-six years old, unmarried, industrious and earning about §103 per season, but had never contributed to the support of his mother or other relatives, all of the latter being adults.

      Held, that a verdict for §8,000 was not excessive.
    Appeal by the defendant, The Mitchell Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 17th day of March, 1891, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 6th day of September, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      T. F. Tarsney, for the appellant.

      John Lauglilin, for the respondent.
   Lewis, J.:

The deceased, Edward O’Toole, on the 27th day of October, 1892, was working as a scooper, assisting in unloading a cargo of grain from a steam barge known as the A. Folsom, which belonged to the defendant.

The grain was being elevated into the Evans elevator in the city of Buffalo. While thus engaged, a piece, of timber belonging to and used upon the deck of the vessel was negligently allowed to fall down the hatchway of the vessel into the hold by one of the deck hands of the vessel. In falling, it struck and killed the deceased.

The deck hand was at the time in the employ of the defendant, working upon the deck of the vessel, and had occasion to move the piece of timber. There is no controversy as to the foregoing facts, and no question is made as to the deceased being free from negligence contributing to his death.

Two questions, and two only, are argued by the appellant’s counsel. It is his contention that the deceased and the deck hand were both in the employ of the vessel, and were, therefore, fellow-servants.

The business of transferring grain from vessels into elevators at the port of Buffalo has been carried on for years by all elevators of the city in the following manner: At the opening of navigation in the spring of the year, each elevator appoints what is known as a boss scooper for the season of navigation. He is given the entire charge of elevating grain out of vessels into the elevator. For that purpose he has charge of that portion of the machinery of the elevator which is used in connection with the vessel. He employs and discharges and pays his assistants, who are known as scoopers. Neither the elevator nor the vessel has anything to say or do as to whom he shall employ. He, with his men, attend to removing the grain from the hold of the vessel. ' A uniform price for this work is charged by all the elevators of the city. The charges are paid by the vessel. As a matter of convenience to all parties concerned, MivCook, who is the general secretary of the association of elevators of the city, receives from all the vessels the money paid for elevating grain, and at the end of each week he pays to the boss scooper his proportion of the moneys so received during the week, and pays the balance thereof to the elevator. The proportion to which each is entitled is fixed by agreement between the elevator and the boss scooper at the commencement of the season. The boss scooper divides the money paid to him amongst the scoopers in his employ, ypro rata, according to the number of hours each has worked during the week, retaining therefrom for himself an amount equal to that coming to the scooper who lias worked the greatest number of hours during the week.

Neither the master nor the owner óf the vessel has any tiling» to do with selecting the elevator. That is determined by the consignee of the cargo. The master places his vessel at the elevator and attends to moving his vessel when it becomes necessary so to do in order to facilitate the unloading of the cargo. After the scoopers have removed all the grain they can with tlieir shovels, the vessel’s crew attend to sweeping the decks and the hold of the vessel. The work of sweeping the decks is sometimes commenced by the vessel’s, crew before all the grain is removed. The boss scooper has no supervision or control over the vessel or its crew, nor of the work performed by them in and about the vessel, while the work of unloading is in progress.

A Mr. Eagan was the boss scooper at the Evans elevator, and was in charge of the work of unloading the cargo of the Folsom at the time of the accident. He employed his assistants, including the deceased.

It is true, as claimed by the appellant’s counsel, that the scoopers and the crew of the vessel were engaged in a common undertaking. The scoopers were removing grain out of the vessel; the crew were sweeping up its decks. All of this work was necessary to be done to put the vessel in condition to take on and transport another cargo. It cannot, however, with any propriety, be claimed that they had a common employer.

While the money received by the scoopers came to them indirectly from the vessel, it was not received by them pursuant to any contract or arrangement between them and the owner of the vessel. The latter, so far as appears, had no knowledge as to the'proportion of the elevatcjr charges the scoopers were entitled to. Had the owners of the Folsom refused to pay for elevating the grain, neither the deceased nor Eagan could have maintained an action against the vessel for services performed. The defendant would not have been liable for the negligent act of a scooper while he was engaged in removing the cargo. The deceased and the deck hand were not, we think, fellow-servants within the meaning of the rule exempting an employer from liability for an injury to one employee by the act of another. Under the evidence the case was properly submitted to the jury.

Our conclusion is sustained by the following cases: Svenson v. Atlantic Company (57 N. Y. 108); Sanford v. The Standard Oil Company (118 id. 571); Johnson v. Netherlands American Steam Navigation Company (132 id. 576).

The appellant’s counsel contends that the verdict was excessive. He claims that under the evidence the plaintiff was not in any event entitled to more than nominal damages. The verdict was for $3,000.

The deceased was twenty-six years old at the time of his death. He was unmarried. He was an industrious, sober man. He had been working for a number of years during the season of navigation, in the city of Buffalo, shoveling grain from vessels. lie earned at that business, upon an average, about $400 a season.

• He left a widowed mother sixty-five years of age, who resided in Ireland with a brother of the deceased. She had no property. He left brothers and sisters, some of whom reside in Ireland, the others in this country. All of them were adults and were supporting themselves. The deceased was the .youngest of the family. He was not shown to have ever contributed anything to the support of his mother or his other relatives. Under these circumstances it is claimed by the appellant that his next of kin suffered no pecuniary loss by his death. It is impossible to lay down any well-defined rule to guide courts and juries in determining what pecuniary damages, if any, the next of kin sustain in these negligence cases.

Whether a young child will live to arrive at an age when he will be able, by his labor, to accumulate property, and if so whether liis next of kin will ever derive any benefit from his earnings, cannot in any way be demonstrated, and yet verdicts for substantial amounts in actions for the negligent killing' of small children are sustained, and such verdicts are sustained in the case of the death of people who are quite advanced in years.

While the deceased had not been in receipt of an income which enabled him to lay by very much of his earnings, what his income might have been in after years had’ he lived, cannot, of course, be known.

The jury were furnished all the light upon the subject that the circumstances of the case permitted, and they determined that the next of kin had sustained $3,000 damages by the deceased’s death.

.That sum is probably larger than we would have awarded had the question been before us for decision. The jury upon whom, under our system of administering justice, is imposed the- duty of deciding such questions, determined the amount, and we cannot say that it -was so large as to indicate that any improper influences probably entered into their deliberations.

The judgment and order should be affirmed.

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

Judgment and order affirmed.