author: Dykman, J.:

text:
    Bertram A. McDowell, Appellant, v. The Homer Ramsdell Transportation Company, Respondent.

      Damages for personal injuries — liability of one for the acts of another.

    “What one does by another he does himself; the immediate employer of a servant, through whose negligence an injury occurs, is personally responsible therefor. In an action brought to recover damages for personal injuries where the act complained of was not done by the defendant, nor by any one acting by his command or request, nor by one whom he had the right to command, and over whose acts and conduct he had control, nor by one whose operations he could direct or whose negligence he could restrain, and where the act was not done for his benefit so that an implied obligation on his part to pay compensation therefor would arise, nor done in the occupation of land by him or upon land to which he had title, a recovery against him is improper.
    Appeal by the plaintiff, Bertram A. McDowell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 20th day of June, 1893, upon the dismissal of the complaint directed by the court after a trial at the Dutchess Circuit before the court and a jury, with notice of an intention to bring up for review on such appeal the order granting a nonsuit.

      A. II. F. Sieger and Wood ds Morsehauser, for the appellant.

      31. II. Hi/rscKberg, for the respondent.
   Dykman, J.:

If the plaintiff prevails in this action it must be upon the successful invocation of the principle of respondeat superior, because the individual who perpetrated the cruel wrong upon him is not sued, the claim of the plaintiff being that he was the servant of the defendant, who was, therefore, responsible for his wrongful act. The rule of law that what a man does by another he does himself is so well established that it has passed into a legal maxim. And upon that rule is built up another legal principle, equally well established under the name of respondeat superior, which belongs to the relation of principal and agent, master and servant, superior and subordinate, and is co-extensive with those relations.

The rule itself is free from obscurity and easily understood, but its applicability to a given case is oftentimes very uncertain, arising from the difficulty of determining whose servant the person is who perpetrated the wrong which caused the injury.

The basis of the rule is the power of the superior to prevent the injury by controlling, the subordinate, and where such power does not exist the rule has no application.

It will be of paramount importance, therefore, to ascertain whether the individual who injured the plaintiff was the servant of the defendant at the time of the commission of the act, and, therefore, a recitation of the facts will not be inappropriate.

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

At the close of the trial at the Circuit the plaintiff was nonsuited, and he has appealed from the judgment.

In the examination of the case we will assume that the plaintiff had the right to go upon the boat as he undertook to do and that his expulsion was wrongful. While it might be a presumption of law arising from the ownership of the boat that it was in use for the benefit of its owners, that presumption is overcome in this case by the proof that the ownership was separate from the possession, which was not in subordination to the title but to the charter party. An excursion may be concluded without danger or hai’m to any one. If it could not then the defendant might be liable because it chartered the boat for that very service, and could not escape liability by interposing the contract to do the thing that caused the injury.

It is to be observed, also, that the injury to the plaintiff did not result from any defect in the boat or iis machinery or appliances, nor from any fault in the navigation or management of the boat, but from the wrongful conduct of one of the crew.

The owner surrendered all control of the boat and all her employees, and had no immediate interest in her earnings during the existence of the charter party. There was, therefore, an actual demise of the vessel which stripped the owner not only of the possession of the boat, but also of all authority and control over her. When the charterers hired the boat and crew that was an adoption and selection of the men which constituted them their servants, and the men were under their full control. They could remove any of the deck hands for disobedience or misconduct, and that power brought them within the rule laid down in Quarman v. Burnett, hereafter noticed. These facts appear to be sufficient to bring the case within the decision of the Court of Appeals in the case of Scarf v. Metcalf (107 N. Y. 211). They create the relation of master and servant between the crew and charterers. As there cannot be two superiors at the same time, the defendant is relieved from the position if our conclusion is correct.

In the case of Blake v. Ferris (5 N. Y. 48) the .doctrine of respondeat superior received the fullest exposition, and the teaching of the case is adverse to the plaintiff here. It was there decided that the immediate employer of the servant, through whose negligence an injury occurred, was personally responsible therefor, and that rule is in accordance with reason and justice when applied to this case. The defendant surrendered the boat and crew to Mink and Burnett, and during the continuance of the charter party they exercised absolute authority over both ; so far as the crew was concerned, they were subject to the orders of Mink and Burnett. It was, therefore, their duty to prevent the molestation of the jjassengers by the crew, and there was none other who could. The defendant had no superintendent or other person on board to exercise any supervision or care, and as it was destitute of power it should be held free from responsibility. The appellant has referred to an English case where the lessee of a ferry hired from the defendants a boat and crew for one day to carry passengers across. He received the fares and paid the defendants for the boat. They sent the crew and paid them. The plaintiff, who was a passenger, went on board for the purpose of crossing, and was injured while there by the breaking of some of the tackle by the negligence of the crew, and the court permitted a recovery. It appeared in that case, however, that the crew was controlled by the defendants, and beside that, the cause of the injury was the breaking of the tackle belonging to the boat. The case is not sufficiently analagous to this to render it authoritative. There are several English cases much like this. In the case of Milligan v. Wedge (12 Ad. & El. 737) the defendant, who was a butcher, employed a drover to drive an ox to his slaughter house; the drover employed a boy to drive the ox, and he permitted it to run into the show room of the plaintiff, where he caused damage. The defendant had the verdict, which was sustained on appeal.

In Quarman v. Burnett (6 M. & W. 497) the defendants owned a carriage and hired a pair of horses and driver to draw it for a short time, during which the horse and chaise of the plaintiff was injured by the carelessness of the driver, and a suit was brought against the defendants.

The plaintiff obtained the verdict, and the judge reserved the right to move for a nonsuit, and upon that motion the decision was that the defendants were not liable, and a verdict was entered in then' favor. The opinion in that case contains the following language: “ That person is undoubtedly liable who stood in the relation of master to the wrongdoer, he who had selected him as his servant from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey. * * * But the liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist, and no other person than the master of such servant can be liable on the simple ground that the servant 'is the servant of another, and his act the act of another.”

In the cases of Robinson v. Corbett (9 M. & W. 709); Allen v. Haywood (7 Ad. & El. 960), the facts were similar to the others, and the decisions were to the same effect. In the case of Langley v. Pointer (6 M. & W. 697), which was similar,, the judges were divided upon the question.

The only English case which supports the contention of the plaintiff is Bush v. Steinman (1 Bos. & Pul. 404), but that case has been overruled and repudiated both in England and in this country and .is no longer entitled to any respect. (Blake v. Ferris, 5 N. Y. 62; Hillyard v. Richardson, 3 Gray, 349.) This last case is very instructive, and the facts were these :

The defendant, who was the owner of a building by the roadside, entered into a written contract with one Shaw to alter the building into a dwelling house, and to furnish all materials necessary therefor. Shaw procured some boards and sent them by a teamster, who acted under his direction, to the place for use there, and the teamster piled them up by the side of the road. In a short time thereafter the plaintiff was riding along the road, when his horse became frightened by the boards and bolted from his course, and the plaintiff was thrown from his wagon and injured. Tlié plaintiff obtained a verdict which was set aside in an elaborate opinion which held the defendant free from liability, and concluded with these words:

“ Yiewing this as a question not of authority, but to be determined by the application to these facts of settled principles of law, upon what principle can the defendant be held responsible for this injury ? He did not himself do the act which caused the injury to the plaintiff; it was not done by one acting by his command or request, it was not done by one whom he had the right to command, over whose conduct he had the efficient control, whose operations he might direct, whoso negligence he might restrain.

“ It was not an act done for the benefit of the defendant and from the doing of which an implied obligation for compensation vrould arise. It was not an act done in the occupation of land by the defendant or upon land to which, upon the facts, he had any title.”

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

The judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J. :

license: Public Domain

text:
    Jane Kirkwood, as Administratrix, etc., of James L. Kirkwood, Deceased, Respondent, v. Frank Gehring, as General President of the Lithographers’ International Protective and Insurance Association of the United States and Canada, Appellant.

      Findings of trial judge — when assumed to be justified by the evidence.

    "When no case has been made upon an appeal and the record contains no evidence, except some exhibits, it must be assumed that the findings of the trial judge are supported and justified by the evidence.
    Appeal by the defendant, Frank Gehring, as General President of the Lithographers’ International Protective and Insurance Association of the United States and Canada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of October, 1893, upon the decision of the court rendered after a trial at the Kings ■County Special Term.

      Thomas T. Magner, for the appellant.

      Wm. B. Hurd, Jr., for the respondent.
   Dykman, J. :

This is an appeal from a judgment entered upon the decision of a judge after a trial before him without a jury.

No case has been made, and the record contains no evidence except ■some exhibits.

We can base our examination upon nothing but the findings of the judge, which we must assume are supported and justified by evidence, and upon that assumption they are sufficient to sustain the judgment.

The judgment should be affirmed, with costs.

BrOwn, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    Thomas Campion, Respondent, v. S. Webber Parker, Appellant.

      What is insufficient to justify the reversal of a judgment.

    It is not sufficient to justify the reversal of a judgment that an appellate court would have decided the questions of fact otherwise than as they were found by the jury upon the trial of the action. The jury is the absolute arbiter of the-facts upon contradictory evidence.
    Appeal by the defendant, S. Webber Parker, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 27th day of November, 1893, upon the verdict of a jury, and. also from an order entered in said clerk’s office on the 6th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      F. W. Leonard and Wilson Brown, Jr., for the appellant.

      John J. Grennan, for the respondent.
   Dykman, J.:

This action was originally commenced in a court of a justice of the peace for work, labor and services performed by the plaintiff for the defendant.

The cause was there tried before a jury and the plaintiff obtained a verdict for $159.' Upon appeal to the County Court there was a new trial before the jury and a verdict for $160.

Now the defendant has appealed from the judgment to this court.

All the questions involved are questions of fact, and two juries-have found them substantially alike. If the testimony of the plaintiff is taken for the true facts the judgment is supported.

The only persons who could furnish the facts were the plaintiff and the defendant, and the testimony of both went to the jury.

It is not sufficient to justify a reversal that we would have found the facts differently. The jury is ever the absolute arbiter of the-facts in cases like this, and the appellate tribunal is powerless.

The judgment and order should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


text:
    Maria L. Davis, as Administratrix, etc., of Ira C. Davis, Deceased, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Master and servant — safe place of employment — damages for personal injuries— whether m' not a defective structure was originally constructed by the master is immaterial.

    A master must be careful to provide a safe place for his servant while the latter is in. the discharge of his duties, and the servant is authorized to assume that his master has performed his duty in that respect.
    Upon the trial of an action brought to recover dapaages for personal injuries sus* tained oy the plaintiffs intestate, while in the employ of the defendant, by the breaking of a coal bin, there was evidence tending to show that the bin -was not originally constructed by the defendant.

      Held, that such fact was not material;
    That if the defendant adopted the bin and used it, the defendant was under an obligation to use ordinary care and caution in maintaining such bin in a safe condition;
    That if the bin became unsafe by reason of insufficient inspection and repair, such carelessness on the part of the owner would impose liability upon the owner for an injury resulting to one of its servants from that cause.
    Appeal by tbe defendant, Tbe New York, Lake Erie and Western Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered 'in tbe office of tbe clerk of the county of Rockland on tbe 13th day of October, 1893, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and also from an order entered in said clerk’s office on tbe 3d day of October, 1893, denying tbe defendant’s motion for a new trial made upon the minutes.

      Lewis F. Carr, for the appellant.

      Frank Cotnesky, for the respondent.
   Dykman, J.:

This is an action for tbe recovery of damages which resulted from tbe death of tbe plaintiff’s intestate, who was her son.

Tbe deceased was in the employ of the defendant as a coal shoveler at Piermont in Rockland county.

The defendant was in possession of a long dock extending into the Hudson river, which was used for storing coal in very large quantities. There is a railroad track running the entire length of the dock, and there is a series of bins on each side of the track. For the purpose of separating the different grades of coal the bins are divided by partitions which run crosswise of the dock.

In the summer of 1891 one of those bins was filled with stove coal to the top, which was about twelve feet high, and then the coal was piled on a slant of about forty-five degrees to the height of thirty-five or forty feet. The adjoining bin was empty. About that time there was an explosion of dynamite upon the Hudson River railroad about opposite the dock, which shook the bins and caused the boxes or cribs forming this bin to bulge out. Braces were placed on the north side of the bin at that time.

Thereafter the vacant bin was partly filled with chestnut coal, and so remained until the latter part of November, 1891, when the defendant commenced to remove the coal therefrom. For that purpose a portable railroad track was laid from the bin to the top of a trestle, which extended along the south of it. The coal was loaded into a small car, drawn up the track to the top of the trestle, and then dumped into a chute which conveyed it into a vessel lying in the river.

On the 27th day of Novembér, 1891, the plaintiff’s intestate and some others were engaged in shoveling coal into one of those cars. They were but a few feet from the partition when a portion of it suddenly gave way and fell upon him and killed him.

The jury rendered a verdict of $5,000 in favor of the plaintiff, and from the judgment entered upon that vei’dict and from the order denying a motion for a new trial upon the minutes of the court the defendant has appealed.

There is no claim of any contributory negligence on the part of the deceased, and the sole question involved in the appeal is whether the testimony showed such a want of care on the part of the servants of the company as will sustain the verdict.

There was some testimony to show that the bin was not constructed originally by the defendant, but that question is not material, inasmuch as the defendant adopted the bin and used it, and was, therefore, under obligation to use ordinary care and caution, at least in maintaining it in a safe condition so far as its servants were concerned.

If, therefore, the structure became unsafe and dangerous by reason of insufficient inspection and reparation, that would be carelessness which might impose liability upon the defendant for an injury resulting to one of its servants from that cause. "We think the evidence convicts the defendant of negligence in that regard.

The structure was weakened by the concussion caused by the explosion across the river, and that fact was known to the foreman of the defendant, who braced the bin where it bulged. ' Whether more bracing was not required was a question which the jury might well decide against the defendant. The foreman was unable to say that he even examined the structure on the south of the place where he placed the braces.

Again, it was a very serious question for the jury to determine whether the manner of removal of the coal, adopted by the foreman, was not erroneous and careless..

The great bulk of the coal was removed from one side of the partition, while there was an enormous bank of coal thirty-five or forty feet high on the other side pushing against the partition, with no counteracting pressure from the opposite side. The partition was thus left to sustain unaided the very great weight which came against it. It requires no argument to show that such a method of proceeding submitted the shovelers to an unnecessary danger.

While the cribs were full they supported each other, and ordinary care and caution would not justify the destruction of such support beyond what was actually necessary.

The case of Rigdon v. Allegany Lumber Co. (13 N. Y. Supp. 871; affd., 131 N. Y. 668) is an authority in favor of the plaintiff in this action.

The foregoing views are based upon the rule of law which requires a master to be careful to provide a safe place for his servants while in the discharge of their duties, and authorizes the servants to assume that their masters have performed their duties in that regard.

Here we have proof o'f an occurrence which would not happen in the ordinary course of events and sufficient to raise a presumption of negligence, and the defendant failed to sustain the burden thus cast upon it to relieve itself from such presumption.

There was an exception to the charge of the judge which presents no error.

The judgment and order should be affirmed, with costs.

Brown, P. J., concurred; Pratt, J., not sitting.

Judgment and order affirmed, with costs.


author: Pratt, J.:

text:
    Timothy Callahan, Respondent, v. Wilbur H. Searles, Appellant, Impleaded with George M. Kopp and Another.

      What amounts to an arrest.

    If an officer goes into the presence of a person and inquires about certain stolen property, shows his shield and directs such person to come with him to a certain specified place, there is an arrest of such person.
    Appeal by the defendant, Wilbur H. Searles, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 18th day of October, 1893, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order made on the 11th day of October, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      WilUasn G. Valentine and Frcmeis Za/rkin, for the appellant.

      Nelson H. Baker, for the respondent.
   Pratt, J.:

This is an action for false imprisonment, and the counsel for the defendant well says in his brief that such a case would not be likely to happen in a lifetime. That such a coincidence should happen is remarkable, but I think it is clear that an arrest and detention, or imprisonment, was sufficiently proved to sustain a verdict for the plaintiff. The fact that the officer went into the presence of the plaintiff, inquired about the stolen projierty, showed his shield, and told the plaintiff to come along with him to defendant’s, was .an arrest.

Even if the plaintiff was not arrested by a distinct order of tbe defendant, the act of tbe officer was ratified afterwards at the store where the defendant ordered the plaintiff to be detained until it was proved that the shoes had been a few doors from the defendant’s store.

A technical false imprisonment was proved within well-settled rules of law. (Gold v. Bissell, 1 Wend. 210; Searls v. Viets, 2 T. & C. 224; Mowry v. Chase, 100 Mass. 79-85; Clark v. Starin, 47 Hun, 345.)

We should have been much better satisfied with the verdict if it had been much smaller, but we are unable to say that it is so excessive as to warrant us in setting it aside.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment and order affirmed, with costs.


text:
    Bennett F. Hines, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Master and servant — •risk of employment — right of a servant to assmne that his employer will use due care for his pi’otection.

    While a servant, by the acceptance of the service, assumes all risks incident to a dangerous employment, he has the right to expect that his employer will use the care required of him by law for the servant’s protection.
    Appeal by the defendant, The New Yorb Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of December, 1893, upon the verdict of a jury rendered after a trial at the Dutchess Circuit, and also from an order entered in said clerk’s office on the 26th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Robert F. Wilkinson, for the appellant.

      A. M. c& C. Card, for the respondent.
   Dykman, J.:

This is an appeal from a judgment and order denying a motion for a new trial upon the minutes of the court.

The action was brought for the recovery of damages for injuries sustained by the plaintiff while in the employ of the defendant upon the Harlem branch of its road in the capacity of a brakem'an.

There is a public highway which crossés the railroad a short distance above Dover Furnace upon an ordinary wooden bridge of sufficient height to admit the safe passage of a brakeman when sitting down,1 but not when standing.

The company had caused the usual warning tell-tale to be constructed on the north side of the bridge, and the plaintiff had knowledge of the existence of both. The tell-tale was constructed in the usual manner so that the suspended ropes could strike a brakeman on the top of a car passing under the same, but on the day of the accident two of the midmost wires were bent, and the ropes which hung from them twisted around the others so as to leave an opening sufficiently wide to permit the passage of the body of a man without contact.

On the day of the accident, in January, 1893, the plaintiff was operating the brakes upon a freight train of six cars, including a caboose. As the train approached Dover Furnace from the north the plaintiff crossed on top of the first car in front of the caboose, facing towards the south, and applied the brake on the north end of the second car from the caboose, then crossed the second car and applied the bi’ake on the north end of the third car. All this time the car was in sight of the bridge; after applying those brakes the plaintiff remained on the top of the third car facing the north.

At a signal given for that purpose the plaintiff let off the brake on the third car and was walking on the top of the second when he was struck by the bridge and knocked down on the top of the car and received the serious injury for which this action is brought.

The cause was tried at the Circuit, and the jury rendered a verdict in favor of the plaintiff for $2,900. At the close of the plaintiff’s case upon the trial the counsel for the defendant moved to dismiss the complaint on the ground of the absence of proof of negligence on the part of the defendant, and of the freedom of the plaintiff from negligence. Also, that it was proven that the negligence of the plaintiff did contribute to the injury. That motion was denied, and the defendant now assigns that denial as error.

At that stage of the case there was evidence from which the jury might find in favor of the plaintiff upon all the questions involved.

At the time of the accident the plaintiff was engaged in the discharge of his duties, and at the place where he was required to be for that purpose, and while he assumed all the risk incident to a dangerous employment by the acceptance of the service, he yet had the right to expect that the defendant would use the care required by law for his protection.

The charge of the trial judge to' the jury was favorable to the defendant and imposed upon the plaintiff’s case a burden which was heavy and severe.

The jury was told that, If the company erected a good tell-tale and the tell-tale was in order, it is immaterial to the defendant whether the man was notified by it or not; they were not bound except by the law, and if they obeyed the law they are not liable.” Again, the jury was told, “ The plaintiff must prove that he did his duty. A brakeman upon a train is bound to be vigilant and alert, to look out for danger, to inform himself constantly as to the effect of any act which he does upon the railroad, and if in the exercise of vigilance, he knew or should have seen that this tell-tale was out of order, he cannot recover even though the company did wrong.”

This charge fails to instruct the jury that the plaintiff had the right to rely upon the performance by the defendant of the duty to maintain the tell-tale in order, but as the case successfully sustained the burdens imposed upon it by the charge the point ceases to be material further than to show that the jury must have found the evidence amply sufficient upon the questions involved to sustain the action.

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

Brown, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


text:
    Patrick Evers and Another, Appellants, v. Long Island City, Respondent.

      Municipal corporation — liability of, for defective sewers — its duty to construct is judicial; its duty to keep in repair is ministerial.

    Where a sewer has been constructed by a commission appointed under a special ' act of the Legislature and has been accepted by a municipal corporation, the negligence of the municipal corporation in maintaining the same creates a liability against it in favor of a person injured by such default on its part. It is the duty of a city to keep its sewers in repair, so far as the property connected with them by private drains is concerned, and for its neglect so to do it is liable to persons who suffer thereby an injury which would not have occurred if the sewers had been maintained in good order.
    If a city sewer is negligently permitted to become obstructed or filled up, so that it causes the water to flow back into cellars connected with it, there is a liability therefor on the part of the city, which is bound to preserve and keep the sewer in repair, so that it shall not become a source of annoyance to others.
    Although the duty resting upon a city to make streets, sidewalks and sewers is judicial in its nature, yet, after they are constructed, the duty of keeping them in repair is ministerial, and an omission in the performance of that duty imposes a liability on the city in favor of the party injured.
    Appeal by tbe plaintiffs, Patrick Evers and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 20th day of January, 1894, upon a dismissal of the complaint directed by the court after a trial at the Queens County Circuit before the court and a jury.

      Lymam, W. jRedimgton, for the appellants.

      WilUam JE. Stewa/rt, for the respondent.
   Dykman, J.:

This is an action to recover damages for injuries sustained by the plaintiffs by reason of the negligence of the defendant in the construction and maintenance of a sewer in Long Island City.

At the close of the plaintiffs’ case the complaint was dismissed, and from the judgment of dismissal the plaintiffs have appealed.

The plaintiffs are in possession of a house and lot on Flushing avenue in Long Island City. There is an earthen sewer pi]ie fifteen or eighteen inches in size in Flushing avenue, and the plaintiffs connected their cellar with this sewer, by permission at the time of the erection of their dwelling, by a six-inch pipe which is higher where it runs into the cellar by two or three feet than the main sewer pipe. The water closet of the plaintiffs was in the cellar of the house.

The cellar was dry and the plaintiffs had a stove in it and used it for a summer kitchen until they were driven out by the sewage which cante into the cellar from the sewer.

The Flushing avenue sewer runs from a point east of the plaintiffs’ house westerly to the East river, and carries off the sewage of a large and thickly populated district, and receives sewage from premises above and beyond those of the plaintiffs.

The testimony tended to show that the main sewer was built by commissioners some years ago, and that they had made a report in writing and turned over their books and papers to Long Island City. Patrick Gleason, a witness for the plaintiffs, testified that he was mayor of Long Island City for six years ending January 21, 1893; that his attention was first called to this sewer in 188G, when an alderman of Long Island City; that as mayor of Long Island City he signed contracts for the maintenance and cleaning of these sewers on Flushing avenue ; that the city itself cleaned them and entered into contracts therefor, and the mayor and commissioner of public works signed the contracts; that there was a general complaint for four or five years; that filth from the sewer came into the cellars of residents on the avenue; that he caused a map to be made by an engineer appointed by the board of health; that there was a pitch in this sewer both ways some 300 or 400 feet east of the plaintiffs’ premises; that the witness recommended the common council to appropriate money to reconstruct the sewer according to the map made recently by the engineer; that the reason filth from the sewer came into the cellars was because the sewer was not properly constructed.

Two witnesses testified that they were employed by Long Island City by resolution of the board of aldermen in May, 1893, to do work about this sewer in its reparation.

Another witness testified that he had the contract in writing from Long Island City for cleaning this sewer, and cleaned it for the last time in May or June, 1893. It appeared from the testimony that there was for years an outlet in the main sewer some 300 or 400 feet east of the house of the plaintiffs, where there was a connection made that let the excessive sewage run out upon certain waste lands on the north side of Flushing avenue; that this outlet was a break or opening in the sewer and the pipe both; that somebody had broken out the brickwork of the manhole at this point about three feet from the bottom and had inserted an earthen pipe into this opening to let the water or sewage out upon the waste land north of Flushing avenue, thereby relieving the strain on the main sewer. It further appeared that this outlet was closed up by order of the board of aldermen of Long Island City in May, 1893, by two men employed by the city, who stopped it up with brick and cement.

The testimony on the part of the plaintiffs also showed that before this outlet or break-hole was closed up they only had trouble after very heavy storms, and then only clear water backed up through their connecting pipes into the cellar, but after the hole or outlet was closed in May, 1893, a very little rain forced sewage matter, water closet deposits, papers and filth from the main sewer up through the connecting pipes with a rush into the cellar, sometimes two feet in depth.

Since May, 1893, this has occurred five or six times, and it sends foul and noxious odors through the house so that the plaintiffs were unable to use the cellars excejff to pass to the water closet and back, although previous to that time they had used it for a summer kitchen. It appeared that measurements had been taken of the depth of sewage in different manholes commencing at the premises of the plaintiffs, and going east with the following result: Eight inches, ten inches, nine inches and twelve inches. These measurements included the portion where the witness Gleason testified the sewer pitched both ways and was not properly constructed. One witness examined the sewer at the locality in question, and went down into it and found a stump of a broom and chips in it, and the sewage stationary, being about ten or twelve inches in depth. It appeared that the plaintiff Patrick Evers had notified the mayor, aldermen, health commissioners, city inspector, and commissioner of public works of Long Island City several times of the trouble with the sewer, and requested relief, but nothing was done.

The plaintiffs suffered loss from the sewer through damage to per-

sonal property, sickness in their families, damage to the household and other annoyance and inconvenience.

It appeal’s from this recitation of facts that the sewer in question though constructed originally by commissioners under a special act, was turned over to the city many years ago, and the commission has ceased to exist. The sewer has been owned and controlled by the city ever since. The expense of the sewer was paid primarily by the issuance of certificates, but ultimately by the assessments upon the property benefited. By the charter of the city power is bestowed upon the common council to regulate the building and reparation of sewers. (Laws of 1871, chap. 461, p. 905.)

Under such circumstances the duty devolved upon the defendant to keep the sewer in repair so far as the property connected with it by private drains is concerned, and the defendant is liable for negligence to such persons if they sustain injury which would have been averted if the sewer had been maintained in order. (McCarthy v. City of Syracuse, 46 N. Y. 196.)

As the sewer was constructed and accepted by the city, the negligence in its maintenance created a liability against the city to the injured party. (Barton v. City of Syracuse, 36 N. Y. 58.)

If the sewer is negligently permitted to become obstructed or filled up so that it causes the water to flow back into cellars connected with it, there is a liability therefor on the part of the municipal corporation for the control of it; and it is bound to preserve and keep in repair the erections it has constructed so that they shall not become a source of annoyance to others. (Dillon on Mun. Corp. § 802.)

Although the duty resting upon the corporation to make streets, sidewalks and sewers is judicial in its nature, yet, after they are constructed, the duty of keeping them in repair is ministerial, and an omission in its performance imposes liability to the party injured. (Hines v. City of Lockport, 50 N. Y. 236.)

In the case of Smith v. The Mayor (66 N. Y. 295) the sewer was sufficient, but was temporarily obstructed. It was there held that the city was liable for negligence alone, and as there was no proof of notice the action failed.

In this case' the proof of notice was ample. The liability of municipal corporations for injuries to property resulting from defective sewers has been maintained by the courts in cases analagous to this, based upon the duty of such corporations to exercise the powers conferred upon them by their charters to construct sewers and make their improvements for the benefit of property owners.

Our conclusion, therefore, is that the judgment should be reversed, with costs.

Brown, P. J., and Pratt, J., concurred.

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


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    Charles W. Banham, Respondent, v. Mary A. Roberts, Appellant, Impleaded with Charles F. Odell and Others, Respondents.

      Mechanic’s lien —payments in advance of the terms of the contract to the prejudice of lienors.

    Under the provisions of chapter 343 of the Laws of 1885, payments made in advance of the terms of a contract will not he allowed to operate to the prejudice of lienors, wno In such case may, under this act, compel the owner to pay the amount thus advanced a second time.
    Appeal by the defendant, Mary A. Roberts, from a judgment of foreclosure and sale, of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 23d day of August, 1893, upon the report of a referee, and also from an order entered in said clerk’s office on the 23d day of August, 1893, affirming the report of the said referee.

      W. II. II. Ely, for the appellant.

      Purdy da Squire, for the plaintiff, respondent.

      Pale da Damson, for the defendants, respondents.
   Dykman, J.:

This is an action for the foreclosure of a mechanic’s lien. It was tried before a referee to hear and determine, and he decided in favor of both the claimants, one of the defendants being a lienor or holder of á lien.

The owner lias appealed from the order confirming the referee’s report and also from the judgment entered thereon.

The plaintiff filed two notices of lien upon the property, one of which he assigned to the defendants, the Odells, and upon the other commenced this action.

The Odells and Turner, the original contractor, were brought in as defendants after the commencement of the action.

It seems the owner had paid a sum equal to the contract price for the building before the notices of liens were filed, but it also appears that the payments under the contract were anticipated, and by the provisions of the act under which this action is prosecuted, payments made in advance of the terms of the contract cannot operate to the prejudice of the lienors. (Chap. 342, Laws of 1885, § 2; Cheney v. Troy Hospital Assn., 65 N. Y. 282; Post v. Campbell, 83 id. 282.)

If the owner shall be obliged to pay beyond the contract price in this case, such obligation is the result of her indiscretion in making payments in advance of the terms of the contract.

It is claimed by the appellant that some of the work is not the subject of a lien under the provisions of the Mechanic’s Lien Law, but we think it all falls within the term appurtenances.

Much complaint is made respecting the well, but the evidence discloses no abuse or overcharge. Rock was struck at the -depth of seven feet, and at eighteen feet water was reached. After that the well was sunk deeper to make a reservoir, and as the powerful explosives employed tore out a space unnecessarily large it was decided to’ build it up with brick from bottom to top. That was done; rubble masonry filled in back of the brick. There was no overcharge and the claim under both liens was meritorious.

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

Brown, P. <L, and Pratt, J., concurred.

Judgment and order affirmed, with costs.


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    William J. Foley, as Administrator, etc., of John Foley, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Lessee, Respondent.

      Parent and child — negligence of the parent imputed to the child — not in case of a voluntary injury — it must concur with negligence on thepan't of the child — walking on railroad tracks — engineer of a locomotive, when not bound to stop his train.

    A child non sui juris is incapable by his own negligence of forfeiting his legal rights, but the carelessness of his parents may be imputed to him. They are his keepers, to whose exclusive care and custody he is confided, and if they allow him to be heedlessly instrumental in causing his own injury they cannot recover damage therefor.
    Such rule will not, however, excuse a voluntary injury or a grossly negligent act on the part of the party causing the injury, and in an ^action brought to recover damages for injuries sustained by their child the negligence of the parents must concur with the negligence of their child in order to constitute contributory negligence.
    Walking upon the track of a steam railroad is regarded as negligence in a child non sui juris as well as in an adult.
    Where a father and mother of a child are both at home, and know that their child is put in the street, near a place of great danger, they will be deemed to have knowledge that such child is prone to wander into forbidden places, and under such circumstances it is negligence per se to allow such child to wander upon a steam railroad track.
    The engineer on a locomotive traveling at the rate of from forty to forty-five miles an hour is not bound to stop his train upon seeing children on the track, if he sounds the alarm when it is light, and at a place where there is no noise to drown the blast of the whistle. He has a right to assume that the children will hear the alarm and leave the track, when there is no difficulty in their doing so, and he is not bound to assume that any of them will fall in doing so.
    Appeal by tbe plaintiff, William J. Foley, as administrator, etc., of John Foley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Orange on the 2d day of December, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Orange Circuit, with notice of an intention to bring up for review on such appeal all exceptions to the orders and rulings of the trial court upon which said judgment was based.

      John M. Ga/rdner, for the appellant.

      AsJibel Green and A. 8. Gassedy, for the respondent.
   Dykman, J.:

This is an action for the recovery of damages for causing the death of the plaintiff’s intestate, who was his own son, about four years and four months old.

The plaintiff resided at New Windsor, on the.west side of a public road leading from the city of Newburgh to Cornwall, and about 600 to 700 feet from the place where the accident occurred. He had a wife and two children residing with him, his son John, the deceased, four years and four months old, and a daughter Mamie, aged seven years. The children were playing near the house with Annie McCullough. The mother saw them all playing about 140 feet from the house at half-past two o’clock in the afternoon. The father saw them playing within about fifty feet of the house an hour before the accident. That is the last that either father or mother saw of the children until after the occurrence. The mother had seen Anna McCullough playing, with her children on one or two occasions previous to this. On the afternoon of November 13, 1892, which was Sunday, Anna McCullough started with the other two children down the highway, and after passing some brickyards they started and walked up the track of the West Shore road toward Newburgh. They passed over one culvert or trestle above the Gillie’s yard and passed the Walsh yard, and were walking over the second culvert or trestle opposite the Christie yard. When upon the culvert they heard the locomotive whistle blow, looked back and saw the cars coming. John, the deceased child, then tripped and fell upon the trestle, and was still down when the engine reached him. After the train passed, the boy was found under the culvert, about the fourth tie from the north end, dead. Across the culvert or trestle were square ties or timbers, about eight or ten inches apart, upon which, the track was laid, the stringers running at the side of the track about six inches in height. The boy was struck by the Newburgh local, which was running north. There were no highways crossing the tracks of the railroad between Cornwall and the city of Newburgh, a distance of about four miles, and the accident occurred within those limits south of the city. The track is straight for three-quarters of a mile or more south of the culvert. The train consisted of three coaches and a combined car, locomotive and tender. The air brakes and appliances were in good order. When about 1,000 or 1,200 feet away the engineer, looking through the cab window, saw something upon the track and immediately blew the whistle. He then saw they were two girls. Both left the track, and then one turned and came back. He blew the whistle twice. When he saw one girl go back he applied the air brakes with one hand and reversed the engine with the other, and when he was within about 200 feet of the trestle .for the first time he saw this boy. He was down on the trestle, and only saw. him from his body up. He could not see his arms, and the boy was lying with his face flat down. When the girl started back the engineer Saw something which he thought was a dog, but which he immediately discovered -was something .else and it proved to be the deceased boy. At the time of the accident the train was running at a speed of from forty to forty-five miles an hour, which is not an unusual rate at that place or at other points on the road between stations where the track is clear. To stop such a train, running at that rate of speed, would require a distance of about' 1,000 feet. At the close of all the testimony upon the trial the defendant moved for a nonsuit on the ground of contributory negligence of the plaintiff, who was the father of the deceased, and also of the deceased, and that no negligence was shown on the part of the defendant, and the motion was granted.' The plaintiff then appealed from the judgment which was entered in the action to the General Term.

The nonsuit was based upon the failure of the proof to establish negligence against the defendant, but the question of the contributory negligence of the deceased is also presented upon this appeal, and both questions are, therefore, to be examined.

While the deceased child was non sui juris, and was incapable of forfeiting his legal rights by his own negligence, yet, if his parents were negligent, their carelessness may be imputed to him. They were his keepers, to whose exclusive care and custody he is confided in contemplation of law. If, therefore, they allow him to be heedlessly instrumental in his own injury they cannot recover damage therefor. Such a rule would permit them to recover for injury resulting from their own misconduct. While the rule, however-, will not excuse a voluntary injury or a grossly negligent act, it has fp.ll application to a case like the present where neither is proven. Walking upon the track of the railroad would be regarded as negligent in an adult, and so it must be deemed negligent in the deceased child. If the rule now is as it seems to be (Kunz v. City of Troy, 104 N. Y. 351), that the negligence of parents must concur with the negligence of the child to constitute contributory negligence, we think both are manifested by the testimony in this case.

The child was unlawfully upon the railroad track with two other children, one nine and the other seven years of age. They had been away from their parents over one hour; they were near a railroad which was in full operation, and, therefore, palpably a place of danger. • The father and mother were both at home, and knew their children were out on the street near a place 'of great danger. They must be: deemed to have ’possessed knowledge that such children were prone to wander'into by and-forbidden places.

We think it was negligence per se to have allowed those children to wander away as-they did.

In relation to the negligence of the defendant, it is’ to be said that there are no highway crossings for several miles below the city of Newburgh, and, therefore, there was no reason why the train should have diminished its speed. There is no proof that the track or any of the appliances of the train were in disorder. The engineer was on his guard, and his testimony is all we have to prove what he saw. He did see the children and* sounded the alarm, but he was not then bound to stop his train, as it was light and there was no noise to "drown the blast of the whistle; he had- a right to assume that the children would hear the alarm and leave the track, as there was no difficulty in their so doing. They had only to step aside a few feet upon the other track, and he could not assume that either of them would fall.

“ All the engineer was bound to do after the discovery of the peril was to irse reasonable diligence and care to avoid it.” (Chrystal v. Troy & Boston Railroad Company, 105 N. Y. 164; 124 id. 519.)

We find the evidence insufficient to sustain a finding that he did not use reasonable care or was guilty of negligence.

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

Our conclusion is that the judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment affirmed, with costs.


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    Charles Distler, Appellant, v. The Long Island Railroad Company, Respondent.

      Boarding a train in motion — presumably negligence — direction of the conductor not sufficient to overcome the presumption.

    It is, presumably, negligence to attempt to board a train upon a steam railroad when it is in motion.
    In an action brought to recover damages for personal injuries sustained by the plaintiff when boarding the defendant’s train while in motion, unless the presumption of negligence resulting therefi■om is overcome, there can be no recovery.
    The fact that the conductor of a train called to the plaintiff to get on the train when in motion is not sufficient to relieve the plaintiff from the charge of contributory negligence in doing so.
    Appeal by the plaintiff, Charles Distler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 24th day of October, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Kings County Circuit, and also from an order entered in said clerk’s office on the 6th day of November, 1893, dismissing the plaintiff’s complaint.

      M. I. Towns, for the appellant.

      W. C. Beecher, for the respondent.
   Dykman, J.:

This action is based upon negligence; the plaintiff was nonsuited at the Circuit, and from the judgment dismissing his complaint he has appealed to this court.

As a special train upon tlie defendant’s road was approaching the East New York-station it slowed down for another railroad crossing without intending to stop at the station. It was not scheduled to stop there. As the train approached the crossing and the station, which was near, the plaintiff was waiting to board it, and the conductor called out to him to get on. As he jumped upon the step of the car it started suddenly forward, and he was thrown to the ground and seriously injured.

The plaintiff was nonsuited at the Circuit, and has appealed from the judgment dismissing his complaint.

It is exceedingly hazardous to attempt to board a train upon a steam railroad when in motion. According to the law, as settled in this State, it is presumably negligent, and unless such presumption of negligence is overcome by testimony offered by the plaintiff there can be no recovery in such a case.

To excuse such an act and free the plaintiff from the charge of contributory negligence, there must be a coercion of circumstances which did not leave the passenger the free' and untrammelled possession of his faculties and judgment. (Solomon v. Man. El. R. R., 103 N. Y. 437; Hunter v. Cooperstown & S. V. R. R. Co., 126 id. 18.)

In this case there was no coercion of circumstances, and the presumption of contributory negligence must prevail against the plaintiff.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

J udgment affirmed, with costs.


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    Frederick Hoch, Appellant, v. James R. Cocks, Respondent.

      Specific performance of a contract.

    Whether the specific performance of a contract to purchase real estate shall be decreed is iargely a matter of discretion with the court, and the rule is to deny an application therefor where to decree specific performance would be inequitable and unjust.
    Appeal by the plaintiff, Frederick Hoch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of "Queens on the 3d day of April, 1893, upon the report of a referee dismissing the plaintiffs complaint on the merits.

      George F'inclc, for the appellant.

      Jolm P. Kwby, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered on a report of a referee dismissing a complaint upon its merits. The relief prayed for was a specific performance of an alleged contract for the sale, of real estate.

It is conceded by both parties that the defendant cannot give title, as he is not the owner in fee, but only owns an undivided one-half interest in the property.

Whether specific performance shall be decreed is largely a matter of discretion with the court, and the rule is to deny it where such a course would be inequitable and unjust.

In this case it is admitted that the land is worth $2,500, and the. claim of the plaintiff is to have it decreed to him for only $500.

I have thus, far assumed that there was a valid, legal contract proved for the sale, as claimed by the plaintiff.

The referee, however, has found upon conflicting testimony that no such contract was entered into, and we think this conclusion is supported by the evidence. The vital point is that the minds of the parties never met upon quantity and description of the land in question. This is evident from the price fixed upon and the testimony of the parties. The land was unfenced; no survey was made, and no fixed boundary agreed upon.

The decree below allowed the plaintiff to recover the money ha had paid, which was all he could justly do under the facts disclosed, (Margraf v. Muir, 51 N. Y. 155.)

The judgment should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


author: Brown, P. J.:

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    Thomas Neill, Jr., Appellant, v. Order of United Friends, Respondents.

      Insurance contract — construction in favor of assured.

    It was provided by the by-laws of a corporation that should a member thereof become disabled in following his usual or some other occupation, by reason of accident or disease, he should be entitled, under certain conditions, to one-half of the amount of his relief fund certificate, to be paid to him and deducted from the total benefit due at his death.

      Held, that such provision should be so construed as to give it a meaning consistent. with the fair import of the words used, having reference to the purpose and object of the parties in entering into the agreement in which it was contained;
    That, as the language was that of the corporation, a construction should not be adopted which would defeat a recovery thereon, if it was susceptible of a meaning which would permit one;
    That the word ‘' or ” created two cases in which a member might be entitled to the benefit fund, one of which was when he was disabled from following his usual occupation.
    Appeal by the plaintiff, Thomas Neill, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange in April, 1893, directed by the court after a trial before the court and a jury at the Orange Circuit, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    Neither the judgment nor the order formed a part of the printed case.

      W. F. O'Weill, for the appellant.

      FLaeketi dc Williams, for the respondent.
   Brown, P. J.:

This action was brought upon a certificate of membership in the defendant corporation, which provided that “ Thomas Neill, Jr., * * * is a beneficiary member of the Order of United Friends, and entitled to all the rights and privileges of such membership and a benefit of not exceeding three thousand dollars from the relief fund, which sum shall, at death, be paid to his wife,” etc.

By the by-laws of the order it was provided that “ should a member become disabled from following his usual or some other occupation by reason of accident or disease,” he was entitled, after examination and upon approval of his application by certain officers named, to one-lialf the amount of his relief fund certificate, to be paid to him and deducted from the total benefit due at his death.

The plaintiff was a brakeman in the employ of the Ontario and Western railway, and was pushed from his train by a' tramp. Ilis foot was crushed by the cars and afterwards amputated, rendering him thereafter unable to follow the work of a brakeman. He was out of work for four months, and was then given employment by the railway company in watching a tower, and after that in watching a milk car at Weehawken.

It was stipulated by the parties that at the time of the injury and ever since, the assessments levied by the defendant were sufficient to pay the plaintiff $1,500.

The complaint was dismissed at the%lose of plaintiff’s evidence upon the ground that the loss of plaintiff’s foot did not disable him from following his usual or some other occupation. It would seem as if the language of this provision- must have been chosen for the purpose of raising disputes as to the right of a beneficiary to recover rather than to make plain the intent and meaning of the contract. If the intention was to afford an insurance during the life of a member only in case of his inability to perform his usual and all other occupations, the contract should have so stated. But the expression some other occupation,” is not the equivalent of “ all other occupations.” And if it wras intended to provide a benefit fund only in case a member was disabled so that he could not follow any occupation, it was wholly unnecessary to make any reference to his usual occupation. It would rarely happen that a person would be disabled so that he could not follow some occupation, yet, if the meaning of the provision is as claimed by defendant, the ability to work at any employment, no matter how trivial it was, would defeat a recovery. In construing such a provision in a contract as the one under consideration, the court will give it such meaning as will be consistent with the fair import of the words used, having reference to the purpose and object of the parties in entering into the agreement, and as the language is that of the defendant, a construction will not be adopted which will defeat a recovery if it is susceptible of a meaning which will permit one.

The expression quoted from the by-laws admits of two meanings, one, which treats the disability as a condition which would render the beneficiary unable to work, and the other, which treats the occupation as the source or occasion of the disability. The intent of the parties, as manifested by the last reading, would be that a member would be entitled to the benefit fund, provided that the accident or disease which caused his disability arose from his employment. That is, if the accident happened or the disease had its source in his occupation. In other words, it refers the disability to the occupation, and makes its source the test of the company’s liability. As the accident which caused plaintiff’s disability happened while engaged in his usual employment, his case falls within this construction of the contract. Under the other reading the source of the accident or disease causing disability is of no importance. Inability to labor is made the test of liability, and the member becomes entitled to the benefit fund, provided he is unable to follow his usual occupation or some pther occupation.

The defendant reads this sentence as if or ” was “ and ” and “ some other ” all other.” It cannot be so construed.

The word “ or ” creates two cases in which the member may become entitled to the benefit fund. Who would be included in the second class of cases we need not now determine. When a member who is permanently disabled from following some occiipation other than his usual occupation asserts a claim to the fund, the expression “some other occupation” will be construed and given its proper place in the contract.

It is sufficient for the present occasion that the plaintiff is unable to follow his usual occupation. That fact brings his case within the contract. Under either reading, therefore, of the condition of the contract in question, the plaintiff’s case, as made by the evidence, falls within it.

He has lost a limb, which is a permanent disability. The loss renders him unable to follow his usual occupation, and its loss was occasioned by reason of an accident which happened while engaged in following his usual occupation.

We are of the opinion, therefore, that the case -was one for the WW- .

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

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

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


author: Pratt, J. :

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    In the Matter of the Estate of Elizabeth Turfler, Deceased. Amy Williams, Appellant, v. Jacob C. Turfler, Respondent.

      Supplemental objections to an executor’s account — leave to file them-is discretiona/ry.

    It is discretionary with a surrogate whether or not to allow persons interested in an estate to file objections to the account of the executor thereof after the time for filing objections has expired, and to impose conditions upon the persons applying for leave to file such objections in case of the granting of their request.
    Appeal by Amy Williams, one of the legatees named in the last will and testament of Elizabeth Turfler, deceased, from so much of an order or decree of the Surrogate’s Court of the county of Rockland, entered in the Rockland County Surrogate’s Court on the 18th day of December, 1893, as denied the appéllant’s motion for the removal of the executor of the said estate and the appointment of an administrator with the will annexed, and as denied her leave to file certain supplemental objections to the account of the said executor.
    An application was made by Amy Williams to remove Jacob C. Turfler as executor of the estate of Elizabeth Turfler, deceased, and for leave to file supplemental objections to the accounts of such executor, and upon the hearing of such application before the surrogate an order was made denying the motion for the removal of the executor and the appointment of an administrator and further providing that said Amy Williams have leave, and the same hereby is granted, to file and serve within five days hereafter one supplementary objection to the accounts of said executor now in process of settlement in this court, to wit, an objection in writing relating solely to the averment made that the executor has failed to charge himself in his said accounts with certain moneys which belonged to the estate of said Elizabeth Turfler, but which he wrongfully retained as commissions due him as one of the executors of George C. Turfler, which objection shall specify the sum so to be charged; provided, however, that the said Amy Williams shall, within the time aforesaid, stipulate that she will not plead in bar the Statute of Limitations to any action or proceeding which may be brought against her at any time to recover any moneys paid to or received by her in excess of her proper share or portion of the estate of said Elizabeth Turfler, and that the trial of a certain action now pending in the Supreme Court of New York, Kings county, brought by said Amy Williams against said Jacob C. Turfler and George F. Turfler, shall be postponed at least thirty days if, at the time said action ife next called for trial, the final decree upon the accounting of said Jacob C. Turfler, as said executor herein, and the final decree upon the accounting of said Jacob 0. Turfler and George F. Turfler, as executors of George C. Turfler, now pending in this court, shall not have been entered, and notice thereof received by said executors’ attorneys., *

      T. C. Cronin and J. Newton Williams, for the appellant.

      Wm. Ford Upson, for the respondent.
   Pratt, J. :

We find no reason to remove the executor. So far as the papers show his duties have been conscientiously performed.

According to the decision of the surrogate it appeal’s that the mother' received, under the will, a life estate in several houses in New York City, on which the executor collected upwards of $111,000 rents, and paid the net proceeds,-$72,000, to the mother.

When the executor’s accounts were filed the ruling was made that the executor, as such, had no right to collect the rents nor to charge commissions therefor. But his good faith is not impeached, and if the beneficiaries under the will are to be allowed to file objections at this late day, it should be upon conditions as strict as those imposed below.

It may be added that it was a matter of discretion with ■ the surrogate which this court cannot well reverse.

The order appealed from should- be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Order affirmed, with costs.


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    In the Matter of the Application of Thomas F. Gilroy, Commissioner of Public Works, to Acquire Certain Real Estate.

      Proceedings under chapter 490 of 1883 •— commissioners not entirely concluded by the oral testimony.

    The commissioners appointed under chapter 490 of the Laws of 1883, in proceedings instituted thereunder to acquire lands in Westchester county for a storage reservoir, are not entirely bound by the oral testimony given in the matter, and their report making an award must stand, unless it is apparent that the sum awarded is so grossly inadequate as to afford evidence of partiality, fraud or undue influence.
    An appellate court will not set aside an assessment by commissioners, except in extreme cases where the same is clearly proved to be grossly inadequate, or where it appears that the commissioners fell into some error in their estimates or adopted some erroneous principle, and the fact that a landowner may have had the greater number of the witnesses testifying in his favor is not sufficient to overcome the opinions of the commissioners.
    Appeal by the property owners, Mary W. Purdy and others, as executors and successors in interest of Isaac H. Purdy, deceased, and Isaac Purdy, individually, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the Yth day of January, 1893, confirming the report of commissioners of appraisal.

      F. S. Bangs, for the claimants, appellants.

      William, Ji. Clark and JFI. T. Dykman, for the commissioners, respondent.
   Pratt, J.:

This proceeding was instituted under chapter 490 of Laws of 1883, commonly known as the “Aqueduct Law,” to acquire land in Westchester county for a storage reservoir.

Commissioners were duly appointed, entered upon their duties, viewed the premises, heard testimony and arguments, and made a report. The only ground upon which the report is sought to be set aside is that the commissioners failed to award a sufficient amount to the appellants to afford them “ just compensation ” for the property taken, and damages caused by such taking.

It is to be observed that it is not claimed that there is any irregularity in the proceeding, or that any legal principle has been violated, but simply that, upon the proofs, the award is insufficient in amount.

The evidence is conflicting, no two witnesses fully agreeing as to a proper amount, but the report in no respect is lower than the sum fixed by any witness who testified to the lowest amount, or, in other words, the report is at a sum between the highest and lowest estimate, so that, as sometimes said of a verdict, it is supported by the evidence. But it must be recognized that the commissioners were not entirely bound by the oral testimony; they saw the property, its location and capabilities, and their report must stand unless it is apparent that the sum awarded is so grossly inadequate as to afford evidence of partiality, fraud or undue influence; it must appear that the award is grossly inadequate to justify a court in setting it aside.

The rule is well settled that except in extreme cases an appellate court will not set aside an assessment, unless the same is clearly proved to be grossly inadequate, or unless it appears that the commissioners fell into some error in their estimates, or adopted some erroneous principle.

Because the landowner may have more witnesses is not sufficient to overcome the opinions of the commissioners. (Matter of Central Park, 16 Abb. 56 ; Troy & Boston R. R. Co. v. Lee, 13 Barb. 169.)

Under well-settled principles the order appealed from must be affirmed.

Brown, P. J., concurred; Dykman, J., not sitting.

Order affirmed, with costs.


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    Josephine Whitlach, Respondent, v. The Fidelity and Casualty Company of New York, Appellant.

      Suicide — proof necessary to establish it.

    No jury is justified in finding as a matter of fact that a person has committed suicide, unless there he a preponderance of proof in support of such finding.
    Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 23d day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought on a policy of life insurance which provided that, in case of the death of the assured, the insurer would pay the principal sum thereof to the beneficiary therein named, “except that in case of death resulting from injuries wantonly inflicted by the insured or inflicted or caused by him while insane, the measure of this company’s liability shall be the sum of one hundred dollars.”
    Thé defendant’s answer alleged as a separate defense that the assured came to his death through and by reason of injuries wantonly or intentionally inflicted upon himself.

      Charles C. Nadal and T liornas 8. Moore, for the appellant.

      Thomas Darlington and John L. Hill, for the respondent.
   Pratt, J.:

The cause has been twice tried and is reported in 11 Hun, 146. The rule was then laid down that upon the pleadings the burden of proving death by suicide rested upon the defendants.

Upon the trial now under consideration the Circuit judge applied the rule as given him by the General Term, and the result was in favor of the plaintiff.

Upon the facts there was but one question for the jury; that was whether the death of Whitlach was the result of accident or suicide. No one was present when the pistol was discharged. Each party-tried to produce evidence that would shed light upon the condition of Wbitlacli’s mind before his death. Neither party claimed him to have been insane. We think it can be safely said that nothing was shown that would justify a jury in finding a verdict that the deceased intended to commit suicide.

The court charged that to find a verdict for defendant the jury must be satisfied by a preponderance of proof that Whitlach intentionally took his own life. We think that was a correct statement of the law. The common experience of mankind teaches that suicide is not an ordinary mode of death. The natural instinct of self-preservation is opposed to it. It is also a breach of the criminal law. No jury should be allowed to find one guilty of such a violation of law, of such a perversion of the ordinary rules of human action, except upon a preponderance of proof.

We think the Circuit judge correctly stated the rules of law, and that the requests to charge proposed by defendant, if granted, would have been more liable to mislead the jury than to guide them aright, and were properly refused.

The judgment and order should be affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not voting.

Judgment and order affirmed, with costs.


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    Gaius A. Van Kleeck and Others, Respondents, v. The Dutchess County Railroad Company, Appellant.

      Bridge over railroad tracks — consideration of its cost, involved in the decision of the question — evidence as to its practicability.

    In deciding whether a crossing should he erected over railroad tracks, the cost to the railroad of constructing the same, as compared with the benefit to the landowner, must be taken into consideration. The interest of neither party is to control, but the power to compel the building of proper crossings and culverts is to be exercised in a proper manner, having due regard to the convenience of the owner of the land, and without subjecting the railroad to extravagant, burdensome and unreasonable expense.
    The question as to whether the construction thereof should be compelled is one depending upon the facts and circumstances of each particular case, the location of the land and the needs and necessities of the owner.

      What the expense of such improvement would be is a material fact in such inquiry, which it is error for the trial court to refuse to find.
    It is an error, requiring a reversal of a judgment, to permit a non-expert witness to testify in answer to the question, “ Is it practicable to build a bridge there over that railroad at a reasonable expense?”
    Appeal by tbe defendant, Tbe Dutchess County Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 15th day of August, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Term, with notice of an intention to bring up for review on such appeal all questions of fact and law arising under the exceptions, findings and judgment.

      Milton A. Fowler, for the appellant.

      Ilufcut c& Travis, for the respondents.
   Pratt, J.:

This is an appeal from a judgment rendered at a trial before a judge without a jury.

The action was brought by the plaintiffs, who own a farm through which the defendant took a strip of land by condemnation for its railroad, to compel the defendant to build a crossing under its railroad for stock at one point and a bridge over its railroad for teams and stock at another, in addition to certain crossings already built by the company.

From the proofs before the court it is difficult to jierceive any necessity for a bridge over the railroad at all, and it is also very questionable whether any more cattle culverts are required for the reasonable use of the farm owned by the plaintiffs.

There is no such amount of travel over a farm crossing as to justify the great expense of building a bridge over a railroad.

It is well settled that the cost to the railroad, as compared with the benefit to the landowner, is to be taken into consideration in deciding whether a crossing shall be required. (Jones v. Seligman, 81 N. Y. 190-196; Wademan v. A. & S. R. R. Co., 51 id. 568.)

The interest of neither party is to control, but the power to compel the building of proper crossings and cirlverts is to be exercised in a proper manner, having due regard to the convenience of the owner of the land, and without subjecting the railroad to extravagant, burdensome and unreasonable expense.

The question is one that depends upon the facts and circumstances of each particular case, the location of the lands and the needs and necessities of the owner. While he is to be reasonably accommodated, the railroad must be justly and equitably dealt with.

What the expense would be of making the improvements demanded by the plaintiffs was a material fact which the court below refused to find. This we think was error. It was also error in refusing to find the height, details and cost of overhead bridge with approaches, and also cost and kind of under-crossing for cattle.

There are numerous exceptions remaining, but we will only notice-one other, to wit, in permitting a non-expert to answer the following question: “ Is it practicable to build a bridge there over that railroad at a reasonable expense ? ” No one but an engineer, or a man experienced in bridge building or kindred work, could intelligently answer such a question, besides the answer decided the issue in the case.

It seems to us, in view of the above reasons, and the fact that the defendant has already built three grade crossings within about a third of a mile, and that to comply with the demand of the plaintiffs will entail great expense and hardship upon the defendant, there ought to be a new trial.

Brown, P. J"., and Dykman, J., concurred.

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


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    John Ziegler, Appellant, v. George W. Pearsall and Another, as Executors, etc., of Elizabeth B. Brush, Deceased, Respondents.

      Action for services rendered a decedent —judge's charge as to the interest of a witness.

    Upon the trial of an action brought to recover for services claimed to have been rendered to a testatrix in her lifetime, the services were alleged to have been rendered by a Mrs. Harris, and the most important witness called by the plaintiff, the assignee of tlie claim, to prove that the services had been rendered, was. Mrs. Harris’ daughter.
    The judge, in commenting upon the evidence, stated that Miss Harris was naturally interested in her mother’s claim, to which remark an exception was taken.

      Held, that although, strictly speaking, such remark might have been an error, it. was not such an error as would prejudice the plaintiff when the substance and intent of the charge was that the jury were at liberty to pass upon the credi bility of the testimony.
    Appeal by tbe plaintiff, John Ziegler, from a judgment of the Supreme Court in favor of the defendants dismissing the plaintiff’s complaint, entered in the office of the clerk of the county of Kings on the 16th day of December, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also-from an order entered in said cierk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

      Simon Sultan, for the appellant.

      Jmnes C. Church, for the respondents.
   Pratt, J.:

We have examined this case with great care, and have arrived at the conclusion that it was rightly decided at the Circuit upon the-merits. ■

The evidence was conflicting, but it presented a case that a jury-might well regard as having no foundation in justice or equity.

There is only one exception that requires any comment. The-claim was for services rendered a testatrix in her lifetime which had been assigned to the plaintiff. The assignor was a Mrs. Harris, who-claimed to have rendered the services, and the most important witness to prove the services was Miss Harris, her daughter.

The judge in commenting on the evidence, stated that Miss Harías was naturally interested in her mother’s claim, to which remark an exception was taken. Strictly speaking, perhaps that .was error, but we cannot see that the plaintiff was prejudiced thereby; on the-contrary, it clearly appears that he was not prejudiced.

The substance and intent of the charge was that the jury were at liberty to pass upon the credibility of the testimony, which was-entirely proper-

Taking into consideration her cross-examination and the evidence of the defendants, it was a case that had to be submitted to the jury and the credibility of her testimony passed upon. There was no possibility that the words used by the judge could have misled the jury, as all the facts as to her relation to the parties and the case were fully developed, and were understood by the jury.

The charge was not that Miss Harris was interested in the result of the suit, but was a remark simply to call attention to her relation to the principal party to the claim; in truth, she was naturally interested for her mother, but not pecuniarily interested, and no intimation of the latter kind was suggested by the charge.

The whole charge, taken together, was correct and important, and the verdict evidently just.

The claim for rent was equally without foundation; as matter of fact testatrix never occupied the rocyn at all, and upon assignee’s own showing the room was given up on the twentieth of April, at least eight weeks before the termination of said alleged letting, but only three weeks’ credit was allowed upon the bill. This transaction seems to characterize somewhat the motives of the assignor in making up her claims.

The verdict was just and the judgment and order must be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment and order affirmed, with costs.


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    Frank Monteverde, Respondent, v. The Board of Supervisors of Queens County, Appellant.

      Substantial performance of a contract — a, question of fact.

    It is ordinarily a question, of fact whether or not there has been a substantial performance of a contract.
    Appeal by the defendant, The Board of Supervisors of Queens County, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of July, 1893, upon the report of a referee.

      John Fleming, for the appellant.

      Benjmnin W. Downimg and W. T. B. MilliTcen, for the respondent.
   Pratt, J.:

The determination of this cause depends largely on the question whether the plaintiff substantially performed his contract. That is ordinarily a question of fact. The contract price of the work was $21,700, and the referee finds that all the work stipulated for was done with the exception of some small matters which could be completed for $154.

The testimony abundantly supports that conclusion. It appears that the engineers of the county were in constant attendance while the work was in progress. It was done under their supervision, and the chief engineer certified to the county before this action was commenced that the road could be completed according to the contract for the sum of $501. At that time the plaintiff had dona work for which he was then entitled to receive about $3,500, being the balance of eighty per cent he had a right to draw as the work-progressed. He urged the payment of this and offered to complete the work. The defendant refused to pay him. By that breach of their duty plaintiff was authorized to bring his action for the work already done.

The contract was substantially performed. Had it not been the plaintiff would be entitled to recover for the work so far as done as a consequence of defendant’s refusal to pay as required by the contract.

The judgment should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


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    John Raven, Respondent, v. William R. Smith, Appellant.

      Judgment — when reversed.

    A judgment will not be reversed because of the improper admission of evidence upon the trial of the action, unless the party against whom the judgment was rendered was injured by the reception of such evidence.
    Appeal by tlie defendant, William B. Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office' of the clerk of tíie county of Westchester on the 9th day of October, 1893, upon the verdict of a jury rendered after a trial at the Westchester Circuit, and also from an order entered in said clerk’s office on the 5th day of October, 1893, denying the defendant’s motion, for a new trial made upon the minutes.

      James R. Bowen, for the appellant.

      Frederick W. Clark and A. J. Burns, for the respondent.
   Pratt, J.:

The plaintiff testified, under exception, that his men reported to him that they had been stopped from work, having been discharged by defendant. That did not injure defendant, for the fact of being' stopped was testified to by another witness and was not contradicted by defendant, who went upon the witness stand at a later stage of the trial.

It is also objected that plaintiff was allowed to put in evidence a. copy of a notice served by him on defendant, without having previously given notice for the production of the original. Such notice was given at the trial, after defendant had failed to produce the-original. No suggestion was made that defendant was unable to produce the original, or that he desired to do so. Nor did he, when upon the witness stand, deny receiving the notice. It is plain that defendant was not injured by the reception of the copy in evidence..

It appears that at the time the verbal contract was made a Mr. Fairchild was present, who made minutes of the conversation.. Neither party asked him to produce his minutes, although he was-examined as a witness. Had they been produced it may' well be-that we should be better satisfied with the proof. But the parties elected to go to the jury upon, their own testimony, and the verdict based upon it cannot be set aside as contrary to the evidence.

So as to the measure of damages. Two witnesses testified the work could be done at a cost that would allow plaintiff a profit of five .cents a cubic yard. Three testified that it would cost much more than the agreed price.

As it is not disputed that plaintiff wished to proceed at the contract price, and was not called upon to do so, the jury may well have believed the plaintiff’s witnesses.

¥e cannot say the verdict was wrong.

The judgment and order should be affirmed, with costs.

Brown, P. J., concurred; Dykman, J., not sitting.

Judgment and order affirmed, with costs.