text:
    ALLEN W. SELLECK, Respondent, v. J. LANGDON & CO., Appellants.

      Negligence in constructing a trestle work — when a questionfor the jury-.— the injury must he a usual consequence of the manner of construction in question.

    In an action brought to recover damages by an employee, who was engaged in unloading coal-cars standing on a trestle some eight feet high, it appeared that on the afternoon of the accident, and just prior, thereto, a wagon, which was being driven along a plank-roadway by the side of the trestle, struck a slanting brace and displaced the support upon which a plank rested along side of which a car was run upon the tracks; that the plaintiff alighted from the car, got on to the platform the usual way, and as he stepped upon the plank, the outer end of which had been supported by the displaced trestle, it tipped and he fell to the ground, breaking his leg.

      Held, that unless the damage was a usual consequence, in the ordinary course of events; from the manner in which the premises were used, an action to recover such damage could not be sustained.
    That if, in view of the business to be carried on at the trestle, of delivering coal from the cars into the wagons by means of the chute, near to the supports of the platform, it was to be expected that the teams and wagons used in receiving the coal would, without negligence or wrong on the part of the persons in charge of the same, come in contact with the supports, then a case was made for the decision of a jury whether the defendant was guilty of negligence in constructing the platform in the manner adopted, or in not so guarding the structure as to prevent wagons from coming in contact with it.
    Appeal by tbe defendants from a judgment, entered upon tbe verdict of a jury for $6,000 in favor of the plaintiff, in the office of the clerk of the county of Erie on the 23d day of April, 1889; and also from an order denying a motion for a new trial, which was entered in said clerk’s office on the 26th day of April, 1889.
    The action was brought to recover for damages sustained by the plaintiff in falling from a trestle-work on the premises of the defendant.
    The defendant was a foreign corporation dealing in coal and having a coal-yard and an office in the city of Buffalo. The plaintiff was the defendant’s servant, employed as a laborer in and about the yard; and at the time he received the injuries of which he complains, he was engaged in unloading coal-cars standing on a trestle which was eight or nine feet high, constructed by the erection of bents set eight feet apart, fastened together by stringers, upon which the railroad track was laid. The coal-ears were drawn or pushed up the trestle, which was built on an incline, by a locomotive engine. The bents consisted of a ground sill, twelve by twelve, the upright posts and cap being of the same size. It is unnecessary to give any further description of the trestle. It had been erected eighteen or twenty years, and the proof tended to show that some of the timbers were decayed and punky. The plaintiff was injured in December, 1885. During the preceding summer, the defendant constructed on one side of the trestle a plaftk-walk, which was of the same height from the ground as the top of the caps of the bents, for the use of the men engaged in unloading coal, to walk upon in passing from one car to another, and as a rest for a portable wooden horse used as a support for the screen into which the coal in the car was shoveled and carried over the plank-walk or platform, and dumped into wagons stationed under the lower end of the screen, which served as a chute between the car and the wagon. The platform was supported by spiking a plank two by twelve and twelve feet long on each side of the cap of each bent, which extended beyond the end of the cap three feet, and by the use of another plank, two by ten, called a brace, which was nailed to the outer end of the projecting plank and extended down to about the middle of the sill, in a slanting position and nailed to a sill, and also to the upright at a point about two feet above the sill, so that the brace stood at an angle of about forty-five degrees. The floor of the platform consisted of three planks, each one foot wide, three inches thick and sixteen feet long; and they were laid so that each plank was supported at each end by one of the brackets and in the middle by two. The ends of the plank came together and did not overlap, so that each end of a plank extended beyond the bracket that supported it some six inches. Along the side of the trestle there was a plank road-way for the teams which came into the yard for coal, received direct from the car by means of the chute. On the afternoon of the accident, and just before it occurred, the plaintiff was in a box-car, the door of which was nearly over one of the bents, and was engaged in shoveling coal into the chute to load wagons. One Davis, who had purchased the coal, came into the yard with a wagon and drove upon the plank-way to receive a load of coal, and as he was driving under the chute the forward corner of his wagon struck the slanting brace nailed to the bent on the side opposite from himself and partially displaced the bracket from its fastenings, so that it did not afford any support for the ends of the plank which rested on the same. All the coal remaining in that car was loaded into this wagon. The plaintiff immediately left the car and came down on to the platform in the usual and customary way, and as he struck the outer plank the end of which had rested on the displaced bracket, it tipped and he fell to the ground beside the wagon and broke his leg. The plaintiff left the car and fell within ten or fifteen minutes after the bracket was displaced. Davis was a purchaser of the coal which was delivered to him from the car. The width of the plank-road-way for the use of the teams and wagons is not stated in the case, but it appears to have been constructed before the platform, and the ends of the plank towards the trestle extended under part, if not the whole, of the platforin. The diagram printed with the case showed that the end of the chute extended beyond the outer edge of the platform ; and how near to the slanting brace it was necessary to drive, so as to place the wagon in a proper position under the chute, cannot be correctly ascertained from the evidence. It appears that there was a free yard of considerable space in front of the trestle. When the bracket was struck, it was observed by a workman in the yard employed by the defendant, and the evidence tended to show that he informed the plaintiff before he stepped upon the platform that the same was broken and in a dangerous condition, but this the plaintiff denied, and that was an open question for the consideration of the jury. It did not distinctly appear whether the servant last-named was a fellow-servant of the plaintiff’s or whether he repre-' sented the defendant in the management of its business at that place.
    The duty which it is claimed that the defendant owed the plaintiff and neglected to perform was set out and charged in the complaint as follows : “ That it was the duty of said defendant to see that the said platform or walk was built in a proper manner — safe and suitable manner — so that its employees and servants engaged in and about the unloading of said cars could safely stand upon and walk along said platform or walk without danger or injury to life or limb; that said platform or. walk was built in a careless, unskillful and negligent manner; that the persons employed in the building thereof were not carpenters or builders, and were utterly incompetent to do the said work in a safe and proper manner, as the defendant well knew; and that said platform or walk was so constructed as to be unsafe and dangerous for persons to stand upon and walk along without great danger to life or limb; that on the 13th day of November, 1885, it became necessary for the plaintiff in the course of his said employment to step upon said platform, and he did step and stand upon said platform, and while so standing upon the said platform, and without any fault or neglect on his part, and without any knowledge on his part of the unskillful construction and dangerous and unsafe condition of said platform, and by reason of the defective construction of said platform, as hereinbefore stated, a portion of the said platform, upon which the plaintiff stood, broke and gave way, precipitating the said plaintiff to the earth and sidewalk below, thereby breaking his leg,” etc.
    There was no averment in the complaint that the platform became insecure and unsafe for use in consequence of the injury to the same caused by the act of Davis in displacing the bracket.
    The defendant moved for a nonsuit, which was denied and an exception taken. Exceptions were taken to the charge as made, and to the refusal to charge as requested.

      Spencer Clinton, for the appellants.

      George T. Quinby, for the respondent.
   Barker, P. J.:

The defendant, as the master of the plaintiff, owed him the duty of keeping in a reasonably safe and secure condition the staging or platform constructed for the use of the men engaged in unloading the coal cars standing on the trestle. This the defendant admits. After reading the evidence with care and attention, we think it may be asserted, without successful contradiction, 'that if the bracket which supported the end of the plank at the point where the plaintiff stepped upon the platform in descending from the car had not been displaced by the act of Davis, in driving his wagon against it, the same would have been in a safe and secure condition for use, and the plaintiff would not have received the injuries of which he complains. This is the conclusion which we have reached after giving the case our best consideration. After the accident, the bracket was restored to its former position, without giving it additional strength, by adding new timbers, and the use of the platform, before and afterwards, demonstrates to our minds that it would not have given way at that time, except from the injury which happened' to it immediately before it fell. It is not understood by us that the learned counsel for the respondent, in his oral or printed argument, contends to the contrary. It, therefore, clearly appears, and must be so held in disposing of the questions presented by this appeal, that the proximate cause of the plaintiff’s injury was the act of Davis, who drove the wagon against the bracket and pushed it from its proper position and caused the platform to be in a dangerous condition until it was repaired.

It is contended by the defendant that it is not liable to the plaintiff for the injury which happened to him in consequence of the act of Davis, as he was not its servant nor subject to the orders of its manager; that, if he was guilty of negligence in breaking down the platform, the plaintiff must look to him for indemnity. In this connection we may state the plaintiff’s position, which is, that the platform was weak and constructed in a faulty manner, and was exposed to the danger of being injured and broken down by teams and wagons used by those who came into the defendant’s yard by its invitation to receive coal from the cars placed on the trestle; that the platform was erected for the purpose of facilitating the unloading of cars and transferring coal by means of the chute directly into the wagons of the buyers, to whom the same was delivered at the mouth of the chute, which was supported in part by the wooden horse which stood on the platform. To accomplish this the wagons, both empty and loaded, were necessarily driven so near the slanting braces that there was actual and constant danger of their coming in contact with the same and displacing the brackets, and thus leaving the platform in an unsafe and dangerous condition; and that the defendant was guilty of negbgence in not constructing the platform with greater strength, so that it might receive without injury a jar or blow produced by being struck by a wagon, or in neglecting to guard the supports of the platform so that they could not be injured by the teams and wagons when driving to and from the coal chute.

The chief point made by the appebant for the purpose of securing a reversal of this said judgment is, that the displacing of the bracket by the act of Davis was the proximate cause of the accident, and not the faulty manner in which the platform was constructed, if it was faulty at all; and that such defect in construction was merely one of the incidents in the train of circumstances preceding and'connected with the accident, but not, in legal contemplation, the cause of the same. From the evidence, as now presented, we think the disputation between the parties on the question of the defendant’s negbgence presents a question of fact to be determined in the same way as other questions of fact are disposed of in this class of cases. There is often much difficulty in ascertaining in cases as they arise the line between the proximate and the remote causes of a wrong for which a remedy is sought, but ab the cases recognize the general rule to be that the law takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which may reasonably be expected to result, under ordinary circumstances, from the misconduct or breach of duty charged upon the defendant. Wharton, in his work on Negbgence (§ Y3), says:

“Negligence is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being, as in ordinary and natural sequence immediately results in such injury.” Again, he says (§ 78): “Nor when we scrutinize the eases in which the test of ‘ reasonable expectation ’ is applied, do we find that the c expectation ’ spoken of is anything more than an expectation that some such disaster as that under investigation will occur on the long run from a series of such negligences as those with which the defendant is charged.”

Judge Cooley, in his work on Torts (p. 69), states this principle of legal causation as follows:

“ If the wrong and resulting damage are not known by common experience to be natural and usual in sequence, and the damage does not, according to the ordinary course of events follow from the wrong, then the wrong or damage are not sufficiently joined or concatenated as cause and effect to support an action.” In Lowery v. The Western Union Telegraph Company (60 N. Y., 198). Judge Andrews, who prepared the opinion of the court, in commenting upon the rule., says: " “ The law does not undertake to hold a person who is chargeable with a breach of duty towards another, with all the possible consequences of his wrongful act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which, in the language of Pollock, C. B., in Rigby v. Hewitt (5 Exch., 240), may reasonably be expected to result, under ordinary circumstances, from the misconduct. Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened. In some sense, therefore, each is a cause of the injury, but to fasten a legal responsibility for the injury upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or condition which made the injury possible, would be an impracticable rule, and one which, if enforced, would, in most cases, inflict .a punishment wholly disproportioned to the wrong. There is no serious conflict of authority in the statement of the general rule, that a wrong-doer is liable only for the natural and proximate consequences of his wrongful act.”

In Butler v. Kent (19 Johns., 228), the rule is stated in this language:

“ In cases of torts it is necessary to show that the particular damage in respect of which the plaintiff proceeds must be the legal and natural consequence of the wrongful acts imputed to the defendant.” In Lewis v. Railroad Company (54 Mich., 55), it appeared that a passenger on .a train was carried, past his station on a dark night, and misinformed by the conductor where he was. Through the misinformation he took a route which led him over a culvert, and slipped, and fell into it and was injured. It was held, (1) that the company’s negligence in carrying him past the station and giving him the misinformation was not the proximate cause of the injury ; and (2) that in an action for an injury the courts cannot go back of the proximate cause, and as between other causes preceding that, select one rather than another upon- which to permit a recovery. (See, also, Selleck v. Railroad Co., 58 Mich., 195; Daniels v. Balentine, 23 O., 532; McClary v. Railroad Co., 3 Neb., 44; Henry v. Railroad Co., 76 Mo., 288; Ryan v. Railroad Co., 35 N. Y., 210.)

From these various authorities it may be stated, as the true and guiding rule, that, unless the wrong and damage are known to be usually in consequence, the damage, according to the ordinary course of events following from the wrong, they will not support an action. If in this case the evidence would justify the conclusion that, in view of the business to be carried on at the trestle of delivering coal from the cars into the wagons, by means of the chutes near to the supports of the platform, it was to be expected that the teams and wagons used in receiving the coal would, without negligence or wrong on the part of the persons in care of the same, come in contact with the supports, then a case was made, as we think, for the determination of the jury, whether the defendant was guilty of negligence in constructing the platform in the manner adopted, or in not guarding the structure so as to prevent the teams and wagons from coming in contact with the supports of the platform. We incline to the opinion that a case was made for the jury with proper instructions, and that the nonsuit was properly denied.

But we are also of the opinion that one of the exceptions to the special charge, relative to the liability of the defendant for the injuries which happened to the plaintiff in consequence of the act of Davis, was well taken. In the general charge no special instructions were given to the jury as to the rule of law which would make the defendant liable for the act of Davis, nor any statement made to them that his act was the proximate cause of the accident. The court, however, did charge the jury that the-plaintiff claims that the road for teams to use when loaded with coal going to and from the chute, which loaded the coal into the wagon, was defectively constructed, in that the trestle was liable to be hit by wagons going to and fro, and that, in this particular, there was a defect in the mode of construction, but stated to the jury, in general terms, that the breach of duty imputed to the defendant consisted in the construction of the platform in an insecure and improper manner., and that it was unsafe and unfit for the use of the men in the defendant’s service. At the conclusion of the general charge, the defendant asked the court to charge specifically that the defendant is not entitled to recover for injuries. received by reason of the plank-way being injured by the coal wagons, such injury not being brought to the knowledge of the defendant, and it having had no opportunity to repair it. To this the court replied, that would be-so, as an abstract proposition.” At the same time, the “ road being constructed for the purpose of letting wagons in and out, the question as to whether it is fit and properly constructed, and as to whether it was a matter that might contribute to the injury, is one of fact which I submit to the jury.” To the refusal of the court to charge as requested and to the charge, as given in response to the request, the defendant excepted.

This request to charge was obviously based upon the defendant’s view of the case, that it was not liable for the consequences for the act of Davis in breaking down the support of the platform; and if it be true, as a legal proposition, that it was not in any view of the case responsible to the plaintiff, then the proposition should have been affirmed by the court, because it does not appear that anyone representing the defendant at the coal yards had notice of the condition of the platform before the plaintiff was injured. But, as we have already stated, we think that a case was made for the jury, and it was for them to say whether it was fairly and reasonably to be expected that the wagons, as they approached the chute to be loaded with coal, would be brought into contact with the platform as to injure it and destroy its safety; and it was not error to reject the propositions which the court was requested to charge, as it assumed, as a matter of law, that the defendant was not liable for the consequences resulting from the acts of Davis. By the request to charge, the attention of the court was called specifically to the defendant’s position; that it was not liable for the consequences of the act of Davis in driving his wagon against the platform, and the plaintiff could not recover for the reason that the condition of the platform, had not been brought to the knowledge of the defendant before the accident happened. The remarks of the court which followed the refusal to charge, and which were put in the form of instructions to the jury, must have referred either to the platform for the use of the men, or the plank-road-way for the use of the teams and wagons; and whichever was intended by the court, the instructions were, in substance and effect, that if the same was not fitly and properly constructed, and might have contributed to the plaintiff’s injury, then the defendant was guilty of negligence and liable to the plaintiff ■ for the damages he had sustained. In view of the charge which had already been made, the jury must have understood that the instructions, in substance and effect, embraced the legal propositions we have stated. This part of the charge would have been without any meaning unless the jury were to be guided in reaching a conclusion by the fact, as they may have determined it from the evidence, if the court referred to the platform, as the subject of its remarks, then the error is obvious, for the jury were authorized to find for the plaintiff if they believed the same was improperly constructed and contributed in any degree to his injuries. The rule adopted, rejected the legal proposition that the defendant was not liable for the consequences resulting from the acts of Davis in breaking down the platform, unless it was the natural and proper result of the way and manner the platform was constructed, and ought to have been foreseen, in the light of attending circumstances. By the rule stated in the charge, the defendant’s liability was established if the jury found that the same was improperly constructed and might have contributed to the plaintiff’s injiu’ies. In a sense, the platform did contribute to his injuries. Although Davis was grossly negligent or intentionally drove against the platform, for the platform formed a link in the chain of circumstances, which resulted in breaking tbe plaintiffs leg, as tbe plaintiffs own act formed another link when he engaged himself to work for the defendant.

If the charge related to the road-way, as I think it did, then it was clearly erroneous, for it is not charged in the complaint that the defendant was guilty of negligence in not keeping the same in repair, nor is there any evidence which would justify the finding that it was not in good order. We are of the opinion that the jury were misled by those instructions which may have resulted in securing to the plaintiff his verdict, and we have no hesitancy in ordering a new trial on this ground, which makes it unnecessary to consider the other exceptions taken by the defendant.

Judgment and order should be reversed and a new trial granted, with costs to abide event.

Dwight and Macombeb, JJ., concurred.

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


source: Caselaw Access Project

author: Barker, P. J.:

license: Public Domain

text:
    ELIZABETH J. DUDLEY, Plaintiff, v. EDWARD D. PARKER and Others, Defendants.

      Givil damage act — sale to one person of liquor, by drinking which, his companion becomes intoxicated, and as a consequence injures a third person.

    In an action to recover damages for injuries sustained from a collision with a wagon driven by one Shaw, who was in a state of intoxication, it appeared that Shaw and a companion named Gage, entered the place of business of certain liquor dealers, the defendants in the action, Shaw remaining near the front-door in conversation with one of the defendants and Gage passing to the rear of the store, where he purchased a pint bottle of whisky, for which he paid the clerk. Thereupon he and Shaw left the store and separated, agreeing to meet the next day, which they did, and started out on a ride together, taking the bottle of liquor with them and drinking of its contents, and thereby creating the intoxication on the part of Shaw, which, it was alleged, was the cause of the accident, before the happening of which, however, Gage had left the wagon.
    Upon the trial of the action, the jury were charged that should they find, as a matter of fact, that Gage and Shaw went into the defendants’ place of business, when the purchase was made, for the common purpose of purchasing liquor to be drank by them on some subsequent day, and that Shaw went into the defendants’ store with Gage, knowing that his object was to purchase liquor to be drank by them in common, that the plaintifE had made out a case within the statute so far as the question of sale was involved.

      Held, tliat if Gage and Shaw had a common purpose to buy the liquor, to he drank by them at a future time, then the case came within the statute, although the sale was made to Gage, individually, and he alone paid for the liquor, and the defendants had no actual knowledge that the liquor was to be drank in part by Shaw with the consent of Gage.
    That the statute does not limit the seller’s liability to the injured party, to cases where the injury to the person making the complaint arises from the intoxication of the person to whom the liquor was sold and delivered.
    That the defendants’ liability in this case did not depend upon their having reason to suppose or believe, under the circumstances of the case, that Shaw and Gage had arranged between themselves for purchasing the liquor of the defendants to be drank by both of them.
    Motion by défendánts for a new trial founded on exceptions taken on tbe trial of the cause at the Cayuga Circuit, January 12, 1889? and ordered to be heard at the General Term in the first instance-The plaintiff is the wife of Carroll E. Dudley, and the action was founded upon the provisions of chapter 646 of the ,Laws of 1873.

      F. P. Wright, for the plaintiff.

      S. F. Payne, for the defendants.
   Barker, P. J.:

The plaintiff and her husband, while riding in their own carriage on a public highway, were run into and their carriage overturned and they were thrown out by one Shaw, who was driving a horse before a buggy and going in the same direction. The plaintiff received severe personal injuries. The evidence tended to show that Shaw was in a state of intoxication and that his conduct in the management of his horse was careless and reckless. The defendants were liquor dealers in the city of Auburn, and the evidence tended to prove and fairly justified the conclusion that the liquor which caused Shaw’s intoxication, in whole or in part, was sold by them on the evening of the day preceding the accident.

The serious question in the case is, whether the sale of the liquor by the defendants was made under such circumstances as to make them liable to the plaintiff for the injuries which she sustained, within the provisions of the act (chap. 646, Laws of 1873) entitled “An act to suppress intemperance, pauperism and crime.” For the purpose of considering the questions presented by this appeal the provisions of the statute may be briefly stated as follows: “Every * * * person who shall be injured in person or property, * * * by any intoxicated 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.” The evidence shows that Shaw and one Gage, both of whom resided in Auburn, were friends and companions. Both were employed in the same manufacturing establishment as mechanics or laborers, and on Saturday evening, which was the day before the accident occurred, they planned a ride together, in a buggy, which Shaw was to procure at his own expense. At this time they were. on the street together near the defendants’ place of business, and they entered the store hi company, Shaw remaining near the front door in conversation with one of the defendants, and Gage passed to the rear of the store and purchased from a clerk a pint of whisky, which was put into a bottle which Gage had with him, for which he paid the clerk; and then Shaw and Gage left the store together, and soon separated, agreeing to meet the next morning at an appointed place, and there is no proof that either drank any of the liquor that night. Gage was in the habit of occasionally purchasing liquor at the defendants’ store, and they knew him as one of their occasional customers who purchased liquor in small quantities, and neither of them had much acquaintance with Shaw. The evidence is scant on the subject, but we think it justifies the inference that before Shaw and Gage entered the defendants’ store it was understood between them that Gage should have his bottle- filled with whisky, to be drank by them on their ride the next day. As the exceptions were ordered to be heard here in the first instance, only questions of law are before us for review. The next morning they started on their ride into the country, Shaw having procured a horse and buggy, and soon they commenced to drink from the bottle. Before the accident, Gage, had left the buggy and another person occupied his seat, Shaw all the time driving the horse.

"We are of the opinion that a case was made for the consideration of the jury, with proper instructions as to the law of the case. The court charged the jury, in substance, that if Shaw did not participate in the purchase of the liquor from the defendants, they were not liable. That if Gage purchased the liquor on his own account, and paid for it with his own money, and afterwards gave the liquor or a portion of it to Shaw, which contributed to the intoxication of the latter, then the defendants were not liable; and the court also stated to the jury, that if they should reach the conclusion that Shaw did not go into the store for the purpose of participating in any way in the purchase of the liquor, and that he had no knowledge that Gage was intending to purchase liquor for their own use, then the plaintiff could not recover. lie then instructed the jury that if they should find, as a matter of fact, that Gage and Shaw went info the defendants’ place of business on the evening of the ninth of October, 1886 (which was the time the purchase was made), for the common purpose of purchasing liquor to be drank by them at some subsequent time, and that Shaw went into the defendants’ store with Gage, knowing that his object was to purchase liquor to be drank by them in common, then the jfiaintiff had made a case within the statute, so far as the question of sale by the defendants was involved.

The defendants asked the court to charge, that if the defendants sold and delivered the whisky to Gage, and had no knowledge or information that the whisky was to be drank by Shaw, the defendants were not liable ; and, also, that if the defendants at the time of the sale and delivery of the whisky to Gage had no knowledge that the sale and delivery were for Gage and Shaw, the defendants were not liable. The court refused to charge either of the propositions and the defendants excepted; and they also took exceptions to the charge as made to the first proposition. For convenience, the law of the case as stated in the charge may be condensed and put in this form: If Gage and Shaw had a common purpose to buy the liquor to be drank by them at a future time, then the case came within the provisions of the statute, although the sale was made by the defendants to Gage, individually, and he alone paid for the same, and they had no actual knowledge that the liquor was to be drank in part by Shaw with the consent of Gage. As applicable to the facts and circumstances of this case, we incline to the opinion that the charge was correct, and that neither of the exceptions were well taken.

A right of action is given by the statute to the class of persons mentioned therein, who have suffered a loss in consequence of the intoxication of any person against the person who sold the liquor which caused the intoxication in whole or in part. In terms the statute does not limit the seller’s liability to the injured party to cases where the injury to the person making the complaint arises from the intoxication of the person to whom the liquor was sold and! delivered. To give the statute such a construction, would be to defeat in part the legislative intent and purpose as declared in the title of the act, and prevent a recovery in many cases which come within the spirit as well as the very letter of the statute. The defendant’s proposition, as expressed in the request to charge, would exempt the seller from all the penalties of the act in every case where the liquor sold causes the intoxication of a person other than the person to whom the sale was, in form, made and the liquor delivered, unless the seller had actual knowledge that the same was to be drank by some other person as a beverage. To this proposition we cannot give our consent, and it was not error to reject the same. To render a refusal to charge erroneous, the request must be in such form that the court is in duty bound to make the same without any qualification. It is fair to presume that every person, engaged in selling liquor by small measure knows that, in most instances, the same is purchased to be drank as a beverage by some one ; and if he has reason to believe, when the sale is made, that some other person than the person to whom the sale was, in form, made and the liquor delivered was interested in the purchase and was to drink the same in whole or in part, the seller exposes himself in ease such person becomes intoxicated by drinking the liquor toad the pecuniary liability imposed by the law. Suppose a child, unknown to the dealer, should apply for the purchase of a small measure of liquor, and the same should be supplied and taken by the child to the home of its parents and drank by them, and one or both of them should become intoxicated by its use, could the seller successfully defend an action brought against him on the sole ground that he had no knowledge that the liquor was to be used by the parents of the child who purchased it ? In such a case there would be sufficient evidence in the circumstances connected with the purchase, to suggest to the dealer that the child in making the purchase was, as a matter of fact, acting for and in behalf of another, and to put the seller on inquiry for the purpose of ascertaining to whom the sale was, in fact, made. Many other cases likely to occur might be stated for the purpose of illustrating the proposition that the statute does not require actual knowledge on the part of the seller as to who the real purchaser is, or the person who is to share in drinking the liquor in order to charge him with liability under the provisions of the statute.

The trial court gave the statute a construction that the defendants were liable if the purchase was, in fact, made in pursuance of an understanding between Gage and Shaw that the liquor should be purchased for their common use, although the defendants did not know, nor have any reason to suppose or believe, that Shaw was to share in the use of the liquor. "We incline to the opinion, and so hold, that tire charge in this respect was erroneous, and should have been qualified so as to make the defendants’ liability depend upon their having reason to suppose or believe, under the circumstances of the case, that Shaw and Gage had arranged between themselves for purchasing the liquor of the defendants to be drank by both of them. If neither of them knew or had reason to suppose or believe that, as matter of fact, Shaw Avas interested in the purchase, then the defendant Avould not be liable, butit would present a case where liquor Avas purchased by a person Avho afterwards gave the same to be drank by another. The statute imposes serious penalties on all dealers of intoxicating liquors who shall sell the same as a beverage where intoxication is caused by its use, which are wholly unknown to the common law, and but few general rules can be laid down which Avill be applicable to all cases arising under the statute, and each case must be determined by its facts and attending circumstances.

The motion for a new trial should be granted, with costs to abide event.

Macomber, J., concurred; Dwight, J., not voting.

Motion for new trial granted, with costs to abide event.


author: Dwight, J.:

text:
    POST-EXPRESS PRINTING COMPANY, Respondent, v. JAMES ADAMS and Others, Appellants.

      Bill of particulars — as to loss of patronage caused by a boycott of the plaintiff, specifying the number of patrons and the damages.

    In an action to recover damages resulting from an alleged boycott of tlie plaintiff’s business, the complaint charged that the defendants and several other persons, acting together and calling themselves “The Central Labor Union,” agreed to place the plaintiff under boycott, and in pursuance of such agreement, caused to be circulated among the inhabitants of the city of Rochester, a great number ■of printed circulars advising the friends of street-car drivers not to buy the newspaper printed by the plaintiff, and to discontinue advertising in its columns; and also orally solicited the business patrons and subscribers of such paper to discontinue business relations with the plaintiff under the threat of pecuniary loss to such patrons and subscribers if they failed to comply with such request.
    The defendants moved for a bill of particulars as to the names and addresses of those persons, other than the defendants, whom they caused to solicit and threaten the plaintiff’s patrons and subscribers; the names and addresses of its business patrons and subscribers solicited to discontinue relations with the plaintiff and the particulars of the plaintff’s alleged damages through loss of patronage.

      Held, that the demand for such bill of particulars was a reasonable one and should be granted.
    Appeal from an order of Monroe Special Term, denying defendant’s motion for a bill of particulars of the plaintiff’s claim, entered in the office of the clerk of Monroe county, August 5, 1889.

      JD. G. Feely, for the appellants.

      Satterlee cé Yeomcm, for the respondent.
   Dwight, J.:

The action is for damages resulting from an alleged “ boycott ” of the plaintiff’s business. The complaint charges that the defendants and several other persons, acting together and calling themselves ■“ The Central Labor Union,” did agree to place the plaintiff under a boycott, and in pursuance of such agreement did circulate and cause to be circulated among the inhabitants of the city of Rochester a great number of printed circulars, of which a copy is set out in the complaint, which, among other things, cautioned or advised the friends of street car drivers not to buy the Post-Express; that they also, in pursuance of such agreement, sent and caused to be sent to the patrons of the plaintiff, who were advertising in its-newspaper (the Post-Express), another printed circular, of which a copy is set out in the complaint, requesting such patrons to discontinue advertising through the columns of that paper; that they did also, in pursuance of such agreement, orally solicit and cause others to solicit the business patrons of the plaintiff and subscribers of its paper to discontinue business relations with the plaintiff under the threat of pecuniary loss to such patrons and subscribers if they failed to comply with such request; that all such acts were done with the malicious intent to injure' the plaintiff, and “ that the plaintiff has, in consequence of the premises, lost patronage and been greatly damaged,” and plaintiff asks judgment for $10,000.

The defendants moved for a bill of particulars of the plaintiff’s, claim, asking that the plaintiff be required to specify, in substance, as follows:

1. The names and addresses of those persons other than the-defendants whom, it is alleged, they caused to solicit and threaten, the plaintiff’s patrons and subscribers as stated above.

2. The names and addresses of its business patrons and subscribers whom, it is alleged, the defendant solicited or caused others to solicit to discontinue relations with the plaintiff under threats of pecuniary loss, etc.

3. The particulars of the plaintiff’s alleged damages by loss of patronage, whether arising from the withdrawal or withholding of advertisements or from decrease of circulation, giving the names, and addresses of persons or firms who withdrew or withheld their advertisements and of those who discontinued their subscriptions in consequence of the alleged wrongful acts of the defendants.

The motion was denied at Special Term, and from that order this-appeal was taken.

We think the demand for particulars was a reasonable one and ought to have been granted.

First. If the plaintiff or its officers know, of their own knowledge or are informed, as they state and verify in their complaint, that business patrons of the plaintiff have been personally solicited and threatened by the defendants in the manner charged, they must be supposed to know who those patrons are, and it is a reasonable ■demand of tlie defendants to be informed of the names'of persons wbom tlie allegation is intended to embrace. It is to be observed that no demand is made for particulars of the publication or circulation ■of the first circular mentioned, nor of the persons to whom the second circular was sent, but only of the business patrons of the plaintiff orally and personally solicited and threatened by the defendants and others employed by them. If the plaintiff’s officers know of such persons who have been thus approached they can probably give their names; if they do not know of them, it is difficult to account for the verified allegations of the complaint in that respect.

Second. Counsel for the respondent here object that the order •asked for, would require the plaintiff to give the names of all the persons associated with the defendants in the “ Central Labor Union,” ■Such a requirement, it will be seen, is not embraced in the motion. The “ others,” whom the plaintiff is asked to name, are those only whom, it is alleged, the defendants caused to solicit and threaten patrons of the plaintiff to its injury. The act, in this respect, ■charged upon the defendants in the general allegation of the complaint, is described as that of causing other persons to do unlawful acts to the injury of the plaintiff. It is certainly not unreasonable that the plaintiff should inform the defendants who the persons are whom it is intended to allege they have Caused to do the wrong complained of. (Childs v. Tuttle, 48 Hun, 228.)

Thwd. Whether the defendants are entitled to a bill of particulars of the plaintiff’s damages depends upon whether or not the plaintiff’s allegation in that respect is to be regarded as setting up a ■claim for special damages. H the plaintiff proposes to claim special ■damages, that is, loss of patronage in particular instances, either in advertising or in its subscription list, it must, of course, give a bill of particulars of such loss. If the intention was only to allege general damages, as where, in actions of slander or of libel, injury is alleged to reputation and to feelings, then no more particular specification of the injury is required. In other words, if the plaintiff intends to give evidence of particular instances of loss, occasioned by the wrongful acts of the defendants, those instances must be specified by a bill of particulars, the alternative being that the plaintiff will not be permitted to give evidence of any such particular instances which have not been so specified.

The allegations -of this complaint are extremely general and give? but little information to the defendants to guide or assist them in preparing to meet the evidence to be made in support of the plaintiff’s claim. To give such information is the proper office of a bill of particulars. We think the case is one which fairly calls for the interposition of the court to limit and define the scope of the charges which the defendants are called upon to meet, which it has ample power to do under section 531 of the Code of Civil Procedure. (Cunard v. Francklyn, 111 N. Y., 511.) Whether the plaintiff (as suggested by its counsel) shall have the benefit of an examination of the defendants, or either of them, to aid in framing its bill of particulars, must be determined on a motion by the plaintiff for that relief.

The order appealed from should be reversed and the motion granted for a bill of particulars of the three allegations enumerated above. Neither party should have, costs of the motion, but the appellants should have ten dollars costs and the disbursements of this appeal.

Barker, P. J., concurred ;. Macomber, J., not sitting.

Order reversed, with ten dollars costs and disbursements and motion granted as indicated in the opinion.


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    CHARLES S. MURRAY, Appellant, v. LYDIA A. MABIE, Respondent.

      Bill of particulars — of the exact terms of an affirmative agreement, set up in the answer as having been substituted for the one sued upon

    In an action to recover for services rendered in the sale of real estate, the answer alleged “ that the plaintiff did not procure a purchaser on the terms authorized by the defendant, and in consideration that this defendant would convey the-property * * * for a different sum and on different terms than any authorized by her, * * * the said plaintiff agreed that he * * * would waive all claims for compensation or commission, except a certain sum then agreed upon and which the defendant then paid in full.”

      Held, that a motion on behalf of the plaintiff for a bill of particulars setting out when and where such contract was made, what was the “different sum” and what were the “ different terms ” for and upon which the defendant agreed to convey the property- what was the “ certain sum” which the defendant agreed to accept for his services, and where ahd when such a sum was “paid in full,” should have been granted.
    Appeal from an order of September 10,1889, at a Special Term, lield in Erie county, denying the plaintiff’s motion for a bill of particulars of certain averments of the defendant’s answer.

      J. M. Hull, for the appellant.

      O. O. Gottle, for the respondent.
   Dwight, J.:

The second count of the complaint is upon a quemt/um meruit, for services rendered by the plaintiff for the defendant in the sale of real estate belonging to the latter. The answer to that alleged cause of action contains the following averments: “ The defendant alleges that the plaintiff did not procure a purchaser on the terms authorized by the defendant; and in consideration that this defendant would convey the property * * * for a different sum and on different terms than any authorized by her * * * the said plaintiff agreed that he * * * would waive all claims for compensation or commission, except a certain sum then agreed upon, and which the defendant then paid in full.”

By his notice of motion the plaintiff asked to be informed of the following particulars of the special contract thus averred by the defendant, viz., when and where such contract was made; what was the “ different sum ” and what were the “ different terms ” for and upon which the defendant agreed to convey the property; what was the “ certain sum ” which the defendant agreed to accept for his services, and where and when such, sum, was “paid in full.”

We think the plaintiff was entitled to the information sought. It is true the pleading was good without the particulars specified. It is a good answer to a complaint, on a qu,antum meruit, to aver that the services were rendered under a special contract. But the office of a bill of particulars is not to supply necessary allegations ■in a pleading, but to furnish information of particular facts which the party expects or intends to prove under the general allegations of his pleading, and thus to limit the scope of inquiry and enable the opposite party to prepare to meet tbe proofs to be made. (Cunard v. Francklyn, 111 N. Y., 511; Childs v. Tuttle, 48 Hun, 228.) Of' course it is idle to say that the plaintiff knew the facts as well as the defendant; the parties are at issue on the facts, and the plaintiff is not asking for information of .wliat the facts are, but of what facts the defendant will attempt to establish. Although, as we have said, the answer of a special contract was good as a pleading, the proofs will be required to go further and show what the contract was, and when and where it was made; and it is for information of what the defendant expects or intends to prove the contract to have been in these particulars that the plaintiff asks by his motion.

We think the case is a very proper one for the application of the rule provided by the statute (Code of Civ. Pro., § 531), viz., “ the court may in any case direct a bill of the particulars of the claim of •either party to be delivered to the adverse party.”

The order appealed from should be reversed and the motion granted, without costs of the motion to either party, but with ten dollars costs and the disbursements of the appeal to the appellant.

Barker, P. J., concurred; Macomber, J., not voting.

So ordered.


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    EDWARD O’GRADY and Others, Plaintiffs, v. HENRY O’GRADY and Others, Defendants, THOMAS NOONAN, a Judgment-creditor of HENRY O’GRADY, Appellant.

      Jurisdictional defect {a failure to order notice to lienors to be published in an action for partition) cannot be remedied by amendment nunc pro tunc — presumption that a proper party, not brought into the suit, is prejudiced.

    In an action for the partition of real estate, the interlocutory judgment directed a sale of the premises. Neither the order of reference to take proofs, nor any other order prior to the judgment, contained a provision for the publication of ■the notice, required by section 1562 of the Code of Civil Procedure, to persons not parties to the action, having liens upon any undivided shares or interest in the property.
    A notice to lienors in the usual form was, however, printed without authority. The original order of reference was made May 13, 1887. On March 22, 1889, notice was given to one Thomas Noonan, who held a judgment lien on one ■undivided sixth of the premises owned by the defendant I-Ienry O’Grady; of a motion to amend tlie original order of reference, nunc pro tunc, by inserting in it the necessary notice of reference to lienors, and designating for such publication the newspaper in which the notice had been published without authority, which motion was granted:

      .Held, that the order was an ex post facto order which assumed to remedy a jurisdictional defect in proceedings by which it was sought to deprive the said Thomas Noonan of property rights, and was improperly granted.
    'That the fact that Henry O’Grady’s share of the proceeds of the sale was exhausted before the lien of the said Thomas Noonan was reached, did not show that the latter was not prejudiced by the omission to bring him in as a party to the proceedings.
    .Prejudice is to be presumed in every case where a party’s rights are adjudged without a hearing or an opportunity to be heard.
    Appeal by Tilomas Noonan, a judgment-creditor of the defendant Henry O’Grady, from an order of the Monroe County Court, entered in the cleric’s office of the county of Monroe on the 15th day •of April, 1889, amending an order of the Monroe County Court, made and entered on the 12th day of May, 1887, nunc pro tunc, as of the 12th day of May, 1887, by inserting therein the following words: “ And that said referee cause the notice required by law to be published once in each week, for six successive weeks, in the Rochester Daily Union and Advertiser, a daily newspaper pub-dished at Rochester, in said county of Monroe, the county in which 'the property herein sought to be partitioned is situated.”

      William, A. Sutherland, for the appellant Thomas Noonan.

      J. M. JS. CP Grady, for the plaintiffs, respondents.
   Dwight, J.:

The action was for the partition of real estate. The interlocutory judgment directed a sale of the premises. Neither the order of reference to take proofs, etc., nor any other order prior to judgment, contained any provision for the publication of notice, required by section 1562 of the Code of Civil Procedure, to persons not parties to the action, having liens upon any undivided share or interest in the property. The appellant, Thomas Noonan, who was not made a party to the action, had a lien by judgment on the undivided one-sixth of the premises which was owned, by the defendant 'Henry O’Grady. "What purported to be a notice to lienors, in the usual form of such notice, was printed without authority in a newspaper-published in the county where the premises were situated, but it never came to the attention of the appellant, and he had no knowledge of the action or of any of the proceedings therein until after the final judgment and a distribution of the fund.

Nominal provision was made in the interlocutory judgment for-the payment of liens on the share of the defendant Henry O’Grady; but the balance of the fund representing his share, after satisfying other provisions of the judgment, was exhausted in payment of a lien prior to that of the appellant, and the latter received no part of' the fund.

The original order of reference was made May 13,1887. On the 22d day of March, 1889, the plaintiffs gave notice to the appellant (by service of an order to show cause) of a motion to amend the original order of reference, mono pro tuno, by inserting in it the necessary direction for the publication of notice to lienors, and designating for such publication, the newspaper in which the notice had been published without authority. The motion was granted, notwithstanding the objection of the appellant, and an order for such amendment was entered on the 28th day of March, 1889; from, that order this appeal was taken.

The order was clearly erroneous. The objection to it was jurisdictional. It was an ex post faeto order which assumed to remedy a jurisdictional defect in proceedings by which it was sought to deprive the appellant of property rights. It assumed to give con-elusive effect to the publication of a notice which had been made nearly two years before without any authority of law, and by that, means to validate a judgment which, as to the appellant, was absolutely void for want of jurisdiction. The appellant not having, been made a party to the action, as might have been done under section 1543 of the Code of Civil Procedure, the only mode by which the court could acquire jurisdiction of him and of his rights-as a lienor, was by the publication of a notice under the provisions-of section 1562 of the same statute. Such publication would have been, at the best, only constructive notice, and to give it effect as-such, it must be in strict compliance with the statute. (Halletv. Righters, 12 How. Pr., 43.) The statute itself (Code of Civil Procedure, § 1578), makes the judgment in such an action a bar to the rights of the lienor only in case notice “ was given * * * as-prescribed-in section 1562 of this act.” Such notice cannot be given ex post faeto, two years after the judgment has been rendered.

The ineffectual provision of the interlocxitory judgment for payment of liens on the share of Ilenry O’Grady, is no answer to the objection to the order in question ; the appellant received no benefit from that provision. Nor does the fact that Henry O’Grady’s share-of the proceeds of the sale was exhausted before the lien of tire-appellant was reached, determine the question whether the latter was prejudiced by the omission to bring him in as a party to the-proceedings. Prejudice is to be presumed in every case where a. party’s rights are adjudged without a hearing or an opportunity to-be heard; and under the facts of this case, it is quite probable-that if the appellant had been heard at the various stages of the-proceeding, the value of his lien might have been preserved in whole or in part.

The respondents rely upon the liberal provisions of the Code of' Civil Proceedure in respect to amendments; but it is clear that no-retroactive amendment can cure a jurisdictional defect (Kendall v. Washburn, 14 How. Pr., 380), nor will any amendment in pleadings, or proceedings be allowed for the benefit of one party, without, provisions which save the rights of all other parties to be affected thereby.

The order appealed from should be reversed and the motion denied, with, costs.

Barker, P. J., and Macomber, J., concurred.

Order reversed and the motion denied, with ten dollars cost of' opposing the motion and ten dollars costs and disbursements of this appeal.


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    In the Matter of the Petition of FRANCIS A. HILL, a Taxpayer of the Town of Ontario, Wayne County, Respondent, v. ANDREW F. SHELDON, as County Treasurer of Wayne County, Appellant.

      Costs — not alloioable in proceedings under section 4, chapter 907 of 1869, as amended by chapter 283 of 1871.
    In proceedings instituted by a taxpayer by petition to the county judge, under the provisions of section 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, -no costs can be awarded by the county judge.
    Appeal by the defendant from the final order of the county judge of Wayne county, entered m the office of the clerk of Wayne county on the 27th day of December, 1888, in proceedings instituted under chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, granting to the petitioner, besides other relief, costs of the proceeding.

      C. II. Roys, for the appellants.

      J. Welling, for the respondents.
   Dwight, J.:

The proceeding ¿s by petition to the county judge under the provisions of section 4 of chapter 907 of the Laws of 1869, as •amended by chapter 283 of the Laws of ,1871.

We regard the decision of the case as controlled in all respects, as to its merits, by that of the Court of Appeals in Clark v. Sheldon (106 N. Y., 104), which was a proceeding of the same -character, by a taxpayer of another town of the same county, against flic same defendant, as in this case. But the question of costs in the proceedings before the county judge did not arise in that -case; no costs having been awarded by the county judge to either party, and the costs awarded by the Court of Appeals being con fined to those in that court and in the Supreme Court on appeal. In this case the county judge awarded costs to the petitioner against the defendant.

This provision of the order was clearly erroneous. As we said in Patterson v. Burnett (23 N. Y. St. Rep., 363), costs under our present practice are a creation of tlie statute, and can be awarded only in cases which are clearly brought within the statutory provision. In this case, the statute cited above, which authorizes the proceeding makes no provision for costs therein at any stage, and there is no general or special provision of statute which justifies an award of costs in the proceeding before the county judge. Section 3240 of the Code of Civil Procedure provides, generally, for the award of costs in special proceedings, in the discretion of the court, but only when the proceeding is instituted in 'a court of record or on appeal to a court of record. This proceeding was instituted before the county judge as an officer designated by the statute for that purpose, and not in any court of record or otherwise.

The order should be modified by striking out the provision as to costs, and as so modified affirmed, without costs of this appeal to either party.

Barker, P. J., and Maoombee, J., concurred.

Order appealed from modified by striking out the provision as to costs, and as so modified affirmed, without costs.to either party.


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    GEORGE C. UNGLISH, Respondent, v. GEORGE W. MARVIN, Appellant.

      Agreement to work land on shares, and occupation thereunder fw two years, does not create a tenancy — remedy of a party wrongfully dispossessed.

    An oral agreement to work lands on shares for the period of five years, does not create a tenancy, and the occupation by the party agreeing to work the lands-for the first two years of the term, does not create a tenancy from year to year which can be terminated only by its limitation or by the notice prescribed by law.
    If tire rights of the party entitled to work lands' upon such terms, as a tenant in common of the crops and products of the land used during the occupancy, are denied and infringed, it justifies an action for damages, but no action can be maintained upon the contract as an executory one.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the report of a referee, in the office of the clerk of Monroe county on the 3d day of December, 1888.

      Hoyt dé Beach, for tlie appellant.

      Gr. E. Warner, for the respondent.
   Dwight, J.:

The action was for damages for the unlawful removal of the plaintiff from the possession of premises, consisting of farming lands in the town of Van Burén, in Onondaga county. The jilaintiff claims the possession under an oral agreement with the defendant to work the lands on shares for the period of five years from the first day ■of April, 1884. The plaintiff was disjiossessed at the end of two years, under a judgment of a justice of the peace, in summary proceedings, which judgment was afterwards reversed on appeal to the County Court of Onondaga county. The two judgments are made to appear only by the pleadings in this action, and it is not shown, either by the pleading or by evidence, what questions were litigated before the justice or what was the ground of reversal by ■the County Court.

The referee took evidence of the probable amount and value of “the products of the land during the remaining three years of -the five covered by the agreement, as a basis for estimating “ the value ■of the remainder of the plaintiff’s term;” and, after finding the facts, found as conclusions of law, in substance, that the oral agreement for the occupation of the land by the plaintiff for the period ■of five years, was, as such, void ; but that the plaintiff’s occupancy for a portion of the term created a tenancy from year to year, which could be terminated only by limitation or by the notice prescribed by law ; that the judgment of the County Court above mentioned was conclusive on the parties, and that the plaintiff was •entitled to recover the value of the remainder of his term.

The radical error, which vitiates the judgment entered on these ■findings, is in the conclusion of law that the occupation of the land for two years, under the oral agreement to work the same on shares for five years, created a tenancy from year to year, to the end of ■the term named in the void agreement. It is well settled that an agreement to work land on shares creates no tenancy at all. (Reynolds v. Reynolds, 48 Hun, 142, and the cases cited.) Such •an agreement is only in the nature of a contract for the hire of work, labor and services to be paid for by a share of the product of the labor; and such contract for more than one year, not being in -writing as an executory contract, is good only for one year. (2 R. S., 135, § 2.)

So far as the contract between the parties was executed, the plaintiff acquired the rights of a tenant in common of the crops and products of the laud raised during the occupancy (Reynolds v. Reynolds, supra), and for those rights, if denied or infringed, he had his action; but he could have no action' upon the contract as an executory one.

The conclusion of law of the referee, that “ the order of the County Court, reversing on appeal, the decision of the justice in ■summary proceedings, is conclusive on the parties hereto,” though correct in terms, is entirely immaterial as a finding in this case. That judgment or order was binding upon the parties in the proceedings in which it was made, but it is not binding upon them in respect to any of the issues in this action, because it does not appear that any issue in this action was litigated before the justice, or adjudged in the County Court.

It is impossible, upon the record before us, to sustain the judgment in this action.

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

Barker, P. J., and Macomber, J., concurred.

So ordered.


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    JESSE JEMMISON, Respondent, v. NATHANIEL KENNEDY, Appellant.

      Attorney fos' the Seneca Nation of Indians — right of the Indians to employ another attorney in an action for assault and battery.

    In an action brought to recover for an assault and battery, both of the parties being members of the Seneca Nation of Indians, the jury estimated the damages of the plaintiff at the sum of $335.
    An exception was taken by the defendant to the denial of a motion made by him for a nonsuit upon the ground that the plaintiff had brought the action by attorneys other than the “ attorney of the Seneca Nation of Indians,” in violation of section 3 of chapter 150, Laws of 1845.

      Held, that the motion was properly denied, as, by section 14 of chapter 865 of 1817, any Indian of the said Nation who had any demand or right of action which exceeded the amount which might be awarded by the peace-makers, was authorized to maintain and prosecute actions in the courts of tills State “in the same manner and with the like effect as between white citizens.” •
    Appeal by the defendant from a judgment, entered on the verdict of a jury, rendered at the Erie Circuit, in the office of the clerk of the county of Erie.

      F J. Blackman, for the appellant.

      O. W. Sielcmon, for the respondent.
   Dwight, J.:

This was an action for assault and battery. The parties were both members of the Seneca Nation of Indians. The jury estimated the damages of the plaintiff at the sum of $325.

The only exception in the record is that taken by the defendant to the denial of his motion for a nonsuit, which was made on the sole ground that the plaintiff had brought his action by attorneys other than the attorneys for the Seneca Nation of Indians.” There are several reasons why the ruling excejited to, was correct :

1. The defendant’s objection was, in effect, that the plaintiff had not legal capacity to sue. For, unless he was under some manner or measure' of legal disability as a suitor, he might bring his action either in person or by the attorney of liis choice. The objection was that the plaintiff had not legal capacity to sue as he had done in this action; that the action, to be maintained, must be brought by the attorney for the Seneca Nation. But this objection is one which must be pleaded either by demurrer or answer, or it is waived. (Code of Civ. Pro., § 499.) In this case the objection could not have been taken by demurrer, because it did not appear on the face of the complaint, but it might have been taken by answer, and not having been so taken, it was waived ; and it was, therefore, properly overruled.

2. The objection was founded upon a provision of the act of 1845 (Laws of 1845, chap. 150, § 2), Avhich provides for the appointment by the governor and senate of “ an attorney for the Seneca Nation of Indians,” and prescribes his powers and duties as follows : “ ITe shall, from time to time, advise the said Indians respecting controversies between themselves, and between them, or any of them, and any other person; he shall prosecute and maintain all actions, suits and proceedings for them or any of them as he may find necessary and proper.” The question is whether this provision is exclusive, or whether other actions which the attorney for the nation does not find necessary and proper ” to bring may be brought by the Indian himself in person or by such attorney as he may choose.

In the early case of Jackson v. Reynolds (14 Johns., 335) a similar provision of statute in respect to the Brothertown, Oneida and Stock-bridge Indians (Laws of 1813, chap. 92, § 27; 2 R. L., 153) was held to be exclusive of the right of the Indian to sue except by the attorney of his tribe; but the reasons assigned for the holding are not applicable to the present status of the Indians, especially of the Seneca Nation, under legislation long .subsequent to the date of that decision. That decision 'we find to have been based upon an assumed condition of tutelage and dependence of the tribes in question which rendered them incapable of alienating land or making contracts. The court, by Spencer, J., says: “ Tiie power of the legislature to restrain these Indians from suing or being defended, except exclusively by the attorney appointed for them, is as unquestionable as is the right to prevent them from alienating their lands or declaring them disqualified from contracting. Indeed, assuming that they are incapacitated, from their mental debasement, to sell their individual lands, or to contract, it would seem essentially just and proper to provide for them a person learned in the law to manage their suits,” etc.

Without stopping to inquire whether the legal status.of the Indians was, at that time, one of such complete disability as that indicated by the language quoted, it is apparent that such is not the case at present. Much legislation has intervened, the object of which has been to elevate the character and improve the condition of these wards of the State, by encouraging in them a spirit of self-reliance and cultivating habits of industry, thrift and providence. (See opinion of Barker, P. J., in Crouse v. R. R. Co., 18 N. Y. St. Rep., 711.) Of these legislative acts two of the most important are those of 1843 (chap. 87) and 1847 (chap. 365), which illustrate the progressive character of our legislation on this subject, and the great advance already made upon the conditions existing at the date of the decison in Jackson v. Reynolds.

Section 4 of the act of 1843 (supra) provides: “Any native Indian may, after the passage of this act, purchase, take, hold and convey lands and real estate in this State, in the same manner as a citizen; and whenever he shall have become a freeholder to the value of $100, he shall be liable, on contracts, and subject to taxation, and to the civil jurisdiction of the courts of law and equity, in the same manner and to the same extent as a citizen thereof. And the act of 1847 (§ 14) removes the last restriction upon the right of those Indians with whom we are concerned to sue each other in the courts of the State on all demands and rights of action exceeding the jurisdiction of the peace-makers of the nation, which, by the same statute (§ 8) was fixed at the sum of $100. The text of section 14 is as follows : “ For any demand or right of action which any Indian of the said nation may have' against any other Indian, and which, according to the provisions of this act, exceeds the amount which may be awarded by the peace-makers, actions may be maintained and prosecuted in the courts of this State in the same manner and with the like effect as between white citizens.”

There can, it would seem, be no question of the effect of this provision upon the rights of the Seneca Indians in the courts of this State. The enactment was subsequent to that which provided for the appointment of an attorney for the nation. (Act of 1845, supra) The last-mentioned provision, if not more radically affected, must at least be rendered subordinate and auxiliary, merely, to that quoted from the act of 1847.

"We conclude that the right of the plaintiff to sue the defendant in this action for a claim which, by the verdict of the jury was found to be in excess of $100, either in person or by his chosen attorney, was not subject to question, and, accordingly, that even had the defendant’s objection been pleaded, it could not have been sustained.

The judgment should be affirmed.

All concur; judgment affirmed.


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    EDWARD W. HANKINS, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Train dispatcher — negligence of, causing injury to a co-employee — company not liable — its duty as to making rules, etc.

    In an action, brought to recover damages for an injury sustained by reason of a collision between two freight trains on the defendant’s railroad, it appeared that the plaintiff was a fireman in the employment of the defendant upon one of the trains. The company had established a system of rules for the guidance of its servants in the performance of their duties, and the collision resulted from the neglect, on the part of a train dispatcher in the defendant’s employment, to observe such rules.

      Reid, that the train dispatcher was not, by virtue of his employment as such, and without regard to the extent of the discretion committed to him, and irrespective of the rules prescribed for his government, in such a position that his negligence was the negligence of his employer, nor was he divested of the character of a fellow servant of the plaintiff.

      Slater v. Jewett (85 N. Y., 61) distinguished.
    Where the master has exercised due care in the selection of the servants employed, and has prescribed adequate, specific and intelligible rules for their instruction and government, with a degree of care proportionate to the difficulty and importance of the duties which the servants in question are called upon to perform, the duty of the master to its servants is performed.
    Appeal by tbe defendant from a judgment, entered, upon tbe verdict of a jury in favor of tbe plaintiff for $10,000, in tbe office of tbe clerk of the county of Cattaraugus on February 25, 1889; and also from an order, entered in said clerk’s office on February 23, 1889, denying tbe defendant’s motion, made upon tbe minutes of the court, to set aside tbe verdict and for a new trial.'

      J. H. Stevens, Jr., for tbe appellant.

      W. S. Thrasher, for the respondent.
   Dwight, J.:

Tbe action was for damages resulting from a bodily injury sustained by tbe plaintiff in a collision between two freight trains, on tbe western division of tbe defendant’s road. Tbe plaintiff was in tbe service of tbe defendant, and was acting as fireman of one of tbe trains. Tbe collision was occasioned by the fault or negligence of a train dispatcher, in the office of tbe company’s division superintendent, at Hornellsville. Tlie defendant had several years before established a system of rules for the guidance and government of its servants in the performance of their duties, which were printed in convenient form and placed in the hands of all the persons engaged in the dispatching and running of these trains. These rules embrace careful and minute directions, especially for the guidance of train dispatchers, in the movement of trains by special orders, in deviation from their schedule time. The evidence tended to show that these rules were as complete and well devised as any that were known to the business, and that if they had been observed on this occasion by the train dispatcher, to whom they were entirely familiar and perfectly understood, the collision could not have resulted. The collision did, in fact, result from the neglect by tlie dispatcher of one or more of the rules above described. The court, at the circuit, instructed the jury that this neglect of the train dispatcher was chargeable to the defendant; and, of itself, entitled the plaintiff to a verdict, there being no question of contributory negligence in the case; and it was left to the jury only to assess the damages which the plaintiff had sustained.

The ground of this ruling and disposition of the case was, necessarily, that the train dispatcher was not to be regarded as the fellow servant of the plaintiff, but that, from the nature of his duties and employment, he stood in the place of the master, the defendant itself; that his neglect was the negligence of the defendant. Exceptions to the denial of the defendant’s motion for a non-suit, at the close of the evidence, to the charge of the court and its refusal to charge, and to its refusal to submit certain questions to the jury, abundantly raise the question of the correctness of the ruling of the court above indicated.

We think that ruling cannot be sustained. No court of review has, we believe, ever yet gone so far as to hold that a train dispatcher was, by mere virtue of his employment as such, and without regard to the extent of the discretion committed to him, and irrespective of the rules prescribed for his government, set, absolutely, in the place of the railroad company, his employer, and wholly divested of the character of a fellow servant, under the rule which charges the servant with the risk of the negligence of other servants in the same general employment. In no case has the safe dispatch of the trains of a railroad company been classed among those duties of a master which cannot be delegated so. as to relieve the master from liability to a servant for their neglect. The duties thus classified have been uniformly stated to be to use diligence and care to furnish the servant with proper and reasonably safe appliances and machinery, and with skillful and careful co-workers, and to make and promulgate rules and regulations which, if faithfully observed, will give reasonable protection to the servant. (Slater v. Jewett, 85 N. Y., 61, 73; Besel v. N. Y. C., etc., R. R. Co., 70 id., 171; Sheehan v. N. Y. C., etc., R. R. Co., 91 id., 339; Dana v. N. Y. C., etc., R. R. Co., 92 id., 639; Abel v. D. and H. Canal Co., 103 id., 581.) It is believed that all the cases in which the master has been held liable to a servant for the negligence of a fellow servant have been cases in which there has been, first, a neglect by the master himself of one or other of the duties above enumerated. Either the culpable act or neglect of the fellow servant has been within the sphere of some duty thus enjoined upon the master, or the master has failed to make and promulgate the necessary rules and regulations for the direction and guidance of the fellow servant in the performance of some duty properly delegated to him. It is in conformity with the first branch of this proposition that the courts have laid down the principle that the representative character of the servant, which makes the master liable to a fellow servant for his neglect, does not depend upon the grade of his service, but upon the character of the duty he is called upon to perform, (Monaghan v. N. Y. C., etc., R. R. Co., 45 Hun, 116, citing Crispin v. Babbitt, 81 N. Y., 516), and the character of the duty — as determining the liability of the master to a fellow servant for its neglect- — -is tested by the inquiry whether it is in the category of those duties which the law enjoins upon the master himself. It seems clear that the duty of the ordinary train dispatcher is not of that description. The duty is one which cannot be performed by the board of directors of the railroad nor by the general or division superintendent. The work is constant, by day and by night, and must be performed at many stations on the lines of a great railroad. In the office at Hornellsville three dispatchers were employed daily, each being on duty eight hours of the twenty-four. The work must be done by servants, and all that 'the master can be required to do is to exercise due care in the selection of those servants and to prescribe adequate; specific and intelligible rules for their instruction and government. These two requirements are within the enumeration of those which the law imposes upon the master; and when they are complied with, with a degree of care proportioned to the difficulty and importance of the duties which the servants in question are called upon to perform, the duty of the master to the fellow servant of these is performed. This limitation of the liability of the master, in case of the negligence of a train dispatcher, has, we think, been recognized in all the cases in which the question has been presented.

In the case of Monaghan v. The Railroad Company, above cited, the collision in which the plaintiff, a servant of the defendant, was injured, was alleged to have been caused by the fault and neglect of the defendant’s telegraph operator at the Childs street station in Rochester, who was, in fact, the train dispatcher at a very important point on the defendant’s road. Bradley, J., writing the opinion in that case, says : “ In view of the situation at the location in question, the defendant had organized a system with the view to the operation, with reasonable dispatch and safety, of this portion of its road. It had made rules for that purpose, of which the plaintiff was advised, and had employed men to conduct that system. * * * There is no question about the sufficiency of these rules and their reasonable application to the situation. The telegraph operator was charged with important duties at that point, as upon him was imposed the duty of controlling and directing the movement of trains there. This was within the system which the rules provided for at that particular locality, and did not make him the alter ego of the defendant (Slater v. Jewett, supra); * * * he was a co-employee ; ” and in that case a nonsuit was upheld.

In the case of Rose v. The Boston and Albany Railroad Company (58 N. Y., 217) where the fault or neglect complained of was that of a “ head conductor,” at Albany, whose duty it was made to prepare and dispatch certain trains, the General Term sustained a verdict for the plaintiff, but the Court of Appeals reversed the judgment and held that, upon the evidence, a nonsuit should have been granted. In that case the court said: “ It does not appear whether he (the head conductor) was intrusted with any discretion upon the subject of starting trains, or whether any regulations on the subject, either by a prescribed time table or otherwise, had been made by the company. But it is obvious that the company may have prescribed proper and safe rules in respect to the starting of these trains, and that those rules may have been disregarded by the persons who actually started these trains so near each other. It may be conceded that it is the duty of a railroad corporation to prescribe, either by means of time tables or by other suitable modes, regulations for running their trains with a view to their safety; but it is obvious that obedience to these regulations must be intrusted to employees having charge of the trains. Such obedience is matter of executive detail, which, in the nature of things, no corporation or any general agent of a corporation can personally oversee, and as to which employees must be relied upon.” And it was held that the motion for a nonsuit should have been granted upon the precise ground that it did not appear that the defendant had been negligent of its duty to prescribe the necessary rules and regulations for the government of its servants. The case of Sheehan v. The New Nork, etc., Railroad Company (91 N. Y., 332), was submitted to the jury upon the precise question whether the defendant’s rules and regulations for the dispatch of trains were reasonably adequate for the occasion then presented; and in the opinion of the Court of Appeals affirming a verdict for the plaintiff, Danforth, J., says: “No communication was sent to those persons (the conductor and engineer of one of the colliding trains); no rule of defendant required it.” And in the case of Dana, growing out of the same accident (92 N. Y., 639), in which a verdict, directed for the defendant, was sustained at General Term, the Court of Appeals, after citing the case of Slater {supra), to the effect that a railroad company is bound to carry on its business under a proper system or regulation, says: “ It does not appear from the record that the injury complained of was not immediately due to the defendant’s omission of duty in this respect, and the trial court erred in taking the ease from the jury.”

In the case of Sutherland v. The Troy and Boston Railroad Company (11 N. Y. St. Rep., 841), which was an action by a servant of the defendant for an injury caused by the error or neglect of a train dispatcher, the General Term, in the third department, set aside nonsuit on the ground, as stated by Landon, J., that “it was a question of fact (for tbe jury) whether the methods adopted by the defendant were ample and explicit enough to bring, without the likelihood of mistake or miscarriage, the requisite notice to the servants most concerned, of the orders upon which their safety depended;” and the cases of Sheehan and Dana were cited as authority for the decision.

The case of Slater v. Jewett (supra) has been urged by counsel for the respondent here as authority for the proposition that every train dispatcher does, by virtue of his employment as such, stand absolutely in the place of the master, and by any negligence on his part charges the master with liability to a fellow servant for injuries resulting therefrom. It is true that it was said in the opinion in that case of a class of persons there denominated “ train dispatchers,” and who are also spoken of as “ overlooking officers ” of railroad companies, that they concededly stand in the place of the company itself; but no question of negligence of any person 'of that class arose in that case; whereas the eminent judge who wrote the opinion reached the conclusion and the court held that the telegraph operator, whose duty it was to receive and transmit or communicate orders for the movement of trains, and who, by whatever name he may be called, was, in fact, the immediate dispatcher of the trains in question, did not stand in place of the master, and that his negligence did not charge the defendant with liability to a fellow servant, because his fault consisted in the neglect or violation of sufficient rules prescribed for his government.

In the case of Shiner v. Russell, Receiver, etc. (6 N.Y. St. Rep., 78), the court, at General Term in the second department, says: “ If, therefore, there were proper rules for the management of all the trains on the occasion in question, and the accident occurred through the negligence of any other employee in the execution of these proper rules, the plaintiff cannot recover.”

In the case of Ford v. The Lake Shore and Michigan Southern Railroad Company (17 N. Y. St. Rep., 393), in the General Term of the Superior Court of Buffalo, Beckwith, Oh. J., says: “ The proofs tended to show that the defendant had never promulgated any rules or given any direction as to the manner of loading lumber, nor as to the kind of cars to be used in its transportation over its road. The importance and extent of the business of transporting lumber would, seem to require the adoption of some system on the part of the railroad companies having regard to the safety of their servants and others. But in this case the evidence was such as to allow a finding by the jury that the defendant left all that part of its duty to the foremen who superintended the loading of the lumber. These foremen, therefore, stood in the place of the defendant, and their acts were the acts of the defendant.” '

In Anthony v. Leerett (105 N. Y., 600) the defendant’s appeal was sustained on the ground that the injury complained of resulted from the disobedience by a fellow servant, of instructions given by the master, which if obeyed would have prevented the accident. And in Abel v. The Delaware and Hudson Canal Company (103 N. Y., 581) the nonsuit was set aside on the ground that it was a question for the jury whether the instructions actually promulgated by the defendant were sufficient, if observed, to have prevented the accident.

We think it is the clear doctrine of these and many other cases of similar import that, in an action by a servant against the master, the negligence of a fellow servant of whatever grade, unless the duty neglected was one of those which the law imposes upon the master himself, is attributable to the master only where he has failed to prescribe adequate and proper rules and regulations for the government of the fellow servant in the performance of his duties; or, to vary the statement of the same conclusion, that the master will not be held liable to his servant for the disobedience by a fellow servant, whatever his duty (with the exception above noted), of rules and regulations properly prescribed by the master, which, if obeyed, would have prevented the injury complained of ; and further, that where any questions exist as to the adequacy of the rules, or the sufficiency of their promulgation, that question is one for the jury.

If these conclusions are correctly drawn, it was error for the court in this case to direct a verdict for the plaintiff for such damages as the jury might assess.

The judgment and order appealed from should be reversed and a new trial granted.

Barker, P. J., and Macomber, J., concurred.

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


text:
    CHARLES B. GRAVES v. AUGUSTA C. GRAVES, Individually and as Executrix, and JOHN C. GRAVES, as Executor of the Will of CAROLINE C. MOORE, Deceased.

      Will — when a mother and each of several children take equal sha/i'es under a gift to them of the residue of an estate.

    The testatrix, by her will, provided as follows: “I do give, devise and bequeath, all the rest, residue and remainder of my property and estate, both real, personal and mixed, of every name and nature, and wherever situate, to my adopted daughter, Augusta O. Graves, wife of John C. Graves, -of Buffalo, New York, and to the child or children of said Augusta O. Graves, who shall be living at the time of my death, to be divided equally, share and share alike, between the said Augusta O. Graves and the said child or children.”
    Held, that each of the children of Mrs. Graves took a share of the residue equal to that of its mother.
    A Case agreed upon, in a controversy submitted without action, for the purpose of obtaining a construction upon certain provisions of the last will and testament of Caroline C. Moore, deceased.

      Henry W. Sprague, for the plaintiff.

      Jt’rank M. Loomis for the defendants.
   Dwight, J.:

The object of this submission is to obtain a judicial construction of the ninth or residuary clause of the will of Mrs. Caroline O. Moore, late of Buffalo, deceased. The defendant, Mrs. Graves, was the adopted daughter of the testatrix, and the plaintiff is the son and one of seven children of Mrs. Graves, who were living at the time of the death of Mrs. Moore.

The clause in question reads as follows: “ I do give', devise and bequeath all the rest, residue and remainder of my property and estate, both real, personal and mixed, of every name and nature and wherever situate, to my adopted daughter, Augusta O. Graves (wife of John C. Graves, of Buffalo, New York), and to the child or children of said Augusta C. Graves who shall be living at the time of my death, to he divided equally, share and share alike, between the said Augusta C. Graves and the said child or children.”

The question in controversy is whether the division shall be by moieties between the mother, Mrs. Graves on the'one hand, and the children, as a class, on the other hand, or in equal parts between or among the mother and the several children as individuals. We think it reasonably clear that the provision must receive the latter construction.

The question is not between a distribution per capita and a distribution per stirpes, because here is no sti/rpes or stock represented by the children, and whose share it might be supposed to have been the intention of the testatrix to give to them. In all the cases cited by the defendant, the devise or bequest was to one or more persons named, and to the children, not named, of one or more other persons, and in most of those cases the persons named and deceased parents of the classes of children, respectively, stood in the same relation to the testator. In such cases, the distinction of per cepita and per stirpes may obtain, and the intention be inferred, in the absence of other indications, to give to each class of children the share which might have been that of the parent, if such parent were living, the principle followed, being, in case of doubt, to favor a construction which would distribute the gift as nearly as possible in accordance with the statute of distribution. (See Ferrer v. Pyne, 81 N. Y., 281; Vincent v. Newhouse, 83 id., 505; Clark v. Lynch, 46 Barb., 68.)

On the other hand, in all the eases to which we are referred or of which we have any knowledge, in which the gift has been to one person, and the children of the same person to be divided equally between them, a contrary rule has been applied, and all the beneficiaries named individually, or designated in a class as the children of one named, have taken in equal shares per capita.

In Seabury v. Brewer (53 Barb., 662), the provision of the will was for the appropriation of the estate equally to the benefit of the testator’s wife and two children named; the court held it “ very clear that the parties named take per capita, and not per stirpes ; and, therefore, each is entitled to one-third,” etc.

In Armstrong v. Moran (1 Bradf., 314), the gift of a residue was to the testator’s brother James, and his children, and the child of his sister Catherine, “ to be equally divided between them and their heirs and assigns forever.” It was held that James and each of his children took equal shares.

In Morgan v. Pettit (3 Dem., 61), the testator provided that on the arrival of his youngest child at lawful age, his estate “ be divided equally between my said wife and children.” The same effect was given to the provision as in the last case.

In Lord v. Moore (20 Conn., 122), and in the late case, in South Carolina, of Durant v. Nash (9 S. E. Rep., 19), the property was to be divided equally between wife and children, and in • both cases it was held that the wife took only an equal share with each of the children.

Criticism is made upon the use of the word “ between ” and not “ among,” in the direction for division in the case at bar. It is true, that in very strict use of language, the preposition “ between ” is more properly employed where the reference is to two persons or things only; and “ among,” where the reference is to more than two; but the distinction is too nice to furnish a rule of construction, and it is known to all that “ between ” is very commonly used as synonymous with “ among ” in such connection. It may also be noted that in this case the gift was to Mrs. Graves and her child or children who should be liviiig, etc.; so that, in one of the alternatives supposed, there would be but two to share in the division; in that case the use of-the word “among” would be inappropriate. And in four of 'the five .cases last above cited — the number of beneficiaries designated being more than two — the preposition employed was “ between ” and not “ among.”

Moreover, in the provision here in question other language was used which has been held significant of an intent to divide in equal shares among all the beneficiaries indicated. The language is “ to be divided equally, share and share alike,” between, etc. In Murphy v. Harvey (4 Edward’s Ch., 131), it was held that “ the words (to be equally divided), when applied to a gift to several persons of different degrees of consanguinity to the testator, supersede the manner of distribution which the statute of distributions has prescribed.” In Lee v. Lee (39 Barb., 172), where the gift of a residue was to a brother, the children of a deceased sister, .and the daughter of another brother, “ in equal proportions, share and share alike,” it was held that each of the nephews and nieces took an equal share with the brother named as a beneficiary; and in Stevenson v. Lesley (70 N. Y., 512), it was held that the division should be per capita, and not per stirpes, because of the use of the words “ to be equally divided ” and “ share and share alike.” (See, also, In re Verplanck, 91 N. Y., 439, 444.)

We think the authorities cited, amply sustain the contention of the plaintiff to the effect that, by the terms of the provision in question, in the will of Mrs. Moore, each of the children of Mrs. Graves takes a share of the residue, equal to that of their mother.

We have considered the other and independent provisions of the will, and the facts extrinsic to the instrument, which are presented by the submission, and find in them nothing which impugns the construction which we are compelled to give to the particular provision.

Judgment accordingly should be ordered for the plaintiff.

JBarkee, P. J., and Macomber, J., concurred.

Judgment ordered that plaintiff and the defendant, Augusta O. Graves, each takes an equal undivided eighth part of the property embraced in the ninth or residuary clause of the will.