text:
    Julia V. D. Thomson, Appellant, v. The Manhattan Railway Company, Respondent.

      Common earner — when liable to one passenger for injuries caused by another.

    In an action brought to recover damages resulting from personal injuries alleged to have been caused by two persons stepping on the plaintiffs foot while she was a passenger on defendant's railway, and while she was disembarking from defendant’s cars, it was proved that while the plaintiff was riding in one of defendant’s cars a man standing in front of her, who was also a passenger, and was slightly intoxicated, stepped upon her foot. He was able to keep his feet and was not disorderly, although the attention of the defendant’s guard had been called to him. It was also shown that at a time some three years later the plaintiff, while leaving one of defendant’s cars, and while on the platform was again injured by a passenger about to enter the car stepping on the same foot. There was no evidence to show that either injury was "caused intentionally, nor that in either instance the person causing the injury was so disorderly as to be dangerous, or to interfere with the comfort or safety of, or to annoy the defendant’s other passengers.

      field, that a man in a state of inebriety has a legal right to ride in a public con-. veyance so long as he remains quiet, and that he cannot be legally expelled until he becomes dangerous or annoying to his fellow-passengers ;
    That a common carrier is not an insurer of its passengers, and is not liable for the wrongful acts of a passenger, except upon its failure to discharge the duty imposed upon it of the utmost vigilance in maintaining order and guarding passengers against violence;
    That the defendant could only be held liable for a neglect of duty by its agent, where the latter was, or in the discharge of his duties should have been, cognizant of the circumstances requiring him to act.
    Appeal by tbe plaintiff, Julia Y. D. Thomson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of March, 1893, dismissing the complaint.

      Charles J. Patterson, for the appellant.

      Davies, Short & Townsend, for the respondent.
   Dykman, J.:

This suit was for the recovery of damages for injuries to tbe plaintiffs foot.

The complaint contains two counts for injuries to the same foot. The first injury was by being trodden -upon by a passenger who was standing in the same car where the plaintiff was seated, about the 1st of June, 1888.

The plaintiff entered the car at the City Hall station, and after it started she noticed a man in a state of intoxication standing in the aisle holding on to a strap nearly in front of her.

After the man had been in that position some time he lurched and stepped on the plaintiff’s foot. He was holding on to the strap and lurching at every turn. Some ladies appeared to be frightened but neither they nor the plaintiff made any special manifestation of their fear. A passenger called the attention of the guard to the intoxicated man, and suggested that he be put off or found a seat, and made some other suggestions, but the man was not removed. He addressed no one, threatened no one, and was neither obscene nor profane so far as we can gather from the record.

In relation to the second cause of action the facts are these: The same foot of the plaintiff was stepped on about three years after-wards, on the platform of the defendant’s station at the City Hall in New York city, as she left the defendant’s car. She was returning home and reached the station about six o’clock in the evening, when the station platform was unusually crowded. When the train came to a stop the guard on the car platform opened the car gate and cried out, Let them off first,” and then left the car. The plaintiff landed safely and had advanced a few steps on the platform, pushing her way through the crowd, when another person stepped on the same foot and inflicted the second injury.

' At the trial, when the plaintiff rested her case, the trial judge dismissed the complaint on motion of the defendant, and the plaintiff excepted to such dismission.

The question, therefore, is whether the testimony introduced on the part of the plaintiff was sufficient to carry the cause to the j ury.

Carriers of passengers are not insurers of their personal safety against all contingencies. They are responsible only for want of care or skill.

As, therefore, they are liable for failure to exert such care and skill they are bound to take all reasonable means and measures to secure the safety and comfort of their passengers.

In the exercise of that power they have the right to repress disorderly conduct in their vehicles, and to expel therefrom persons whose conduct is such as to render it reasonably certain that disturbance or impropriety will follow. (Vinton v. Middlesex R. R. Co., 11 Allen, 304.)

There is no legal principle which imposes liability upon a carrier of passengers for the wrongful acts of a passenger, but because such carriers have the right to refuse passage to one who is drunk or disorderly, and to expel him after he has been received, if he so conducts himself as to be dangerous to other passengers or interfere with their comfort, and it is their duty to expel persons who imperil the safety or annoy their fellow-passengers, they may become responsible for injuries inflicted or resulting as a consequence of such negligence.

Yet, it must be borne in mind that all passengers have the same legal rights of which they cannot be deprived until they are forfeited by misconduct.

A man in a state of inebriety has a legal right to ride in a public conveyance; and so long as he remains quiet and molests no one he cannot be legally expelled. It is only when he becomes dangerous or annoying to other passengers that he becomes liable to expulsion.

The question was fully examined in the Court of Appeals in our State in the case of Putnam v. The Broadway, etc., R. R. Co. (55 N. Y. 114), and the principles there laid down were these : A railroad company is not liable for the wrongful acts of a passenger, but it is bound to exercise the utmost vigilance in maintaining order and guarding its passengers against violence.

It has authority to refuse to receive as a passenger, or to expel one who so demeans himself as to endanger the safety or interfere with the reasonable comfort and convenience of other passengers, and this police power the conductor or other servant in charge of the car or train is bound to exercise, with all the means at liis command, when occasion requires. If this duty is neglected, and in consequence a passenger receives injury which might have been reasonably anticipated, the company is liable.

The fact that an individual has drunk to excess will not, in every case, warrant his expulsion ; it is rather the effect on him, and the fact that, by reason of his intoxication, he is dangerous or annoying to others, which gives the right and imposes the duty of expulsion.

The conductor is only called upon to act upon improprieties or offenses witnessed by or made known to him, and the company can only be charged for the neglect of some duty arising from circumstances of which the conductor was cognizant, or of which in the discharge of his duties he ought to have been cognizant.

That was the celebrated car hook-murder case, when Foster killed Putnam with a car hook. Both were passengers on a surface car. Foster was tried for the crime and convicted of murder and executed.

Thereafter the administratrix of Putnam brought civil suit against the railroad company for the recovery of damages resulting from his death, which she claimed was the result of the negligence of the company. The Court of Appeals held the facts even in that case insufficient to charge the railroad company with negligence, and the misconduct -of Foster in that case was much more disorderly and annoying than that of the man who' inflicted the injury upon the plaintiff.

Foster made himself obnoxious to the other passengers, insulted a lady and made threats of personal violence against Mr. Putnam.

This man did nothing of that kind; he was in a state of inebriation, but not very profound, as we assume from the fact that he kept his feet, and as we must assume from the testimony of the plaintiff, walked into and out of the car; his inebriety made him neither belligerent nor loquacious.

There is no claim that his injury to the plaintiff was intentional, and we detect no misconduct on his part which would have justified his expulsion from the car.

We also find the evidence entirely insufficient to charge the guard with any neglect of a duty which the law imposed upon him. It is true that his attention was called to the man, but he neither saw nor received information of any impropriety, nor anything to indicate a disturbance. It follows that we find no cause of action under the first count.

Under the second count there is no reason for an extended examination. The railroad company was bound to furnish a safe and con-venieut place of exit from its car, and it did so. The station platform was in order, and adequate for the strain xo which it was subjected. The plaintiff left the car in a crowd of people and took one or two steps upon the platform, when some person trod upon her foot. There was no sign of approaching danger, and it could not have been averted. The guard directed the people to allow the passengers to leave the car first, but his request was unheeded, and he was powerless. He saw nothing to indicate danger to the plaintiff, and her injury was an accident which no ordinary diligence would prevent, and for which the company cannot be made liable.

It thus appears that the plaintiff had no cause of action against the defendant, and the judgment should be affirmed, with costs.

CulleN and Pbatt, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    Nicholas Wilhelm and Another, Plaintiffs, v. Charles Wilken, Defendant.

      A quit-claim deed is a conveyance within the provisions of the Recording Act.

    A so-called quit-claim deed which contains the words “remise, release and quit claim,” as the words of conveyance, is a conveyance within the Recording Act and subsequent provisions of the Revised Statutes. (1 R. S. 789, § 142; 756, § 1; 762, § 38.)
    Such a deed is in fact a deed of lease and release and a grant. It is sufficient to pass the title of the person executing it, and when given for a valuable consideration, and accepted without notice of the existence of a prior deed and duly recorded, the grantee therein is protected under the provisions of the Recording Act.
    Submission of a controversy on an agreed statement of facts under section 1279 of the Code of Civil Procedure.

      Harry V. Morgan, for the plaintiffs.

      Frcvnle, A. Bennett, for the defendant.
   Dykman, J.:

This is a submission of a controversy without action, and the following are the facts upon which the case is submitted to the court:

In September, 1893, tbe plaintiffs made a written contract with the defendant by which they undertook to sell and convey to him the southwesterly half part of lot No. 167 on a map of Wash-ingtonville, for $500 and deliver him a warranty deed of the same free from incumbrance on the 25th day of September, 1893.

Ten dollars was paid by the defendant when the contract was executed, and the remainder of the - purchase monpy was to be paid upon the delivery of the deed.

By the advice of counsel the defendant refused to complete the contract, basing such refusal upon the following facts:

. In February, 1864, lots Nos. 166 and 167 upon the aforementioned map of "Washingtonville were conveyed to one Cornelius H. Tallman by one William D. Forshay, by deed of conveyance duly executed and recorded, and it. is conceded that Tallman’s title was valid.

The following is the chain of title from Tallman down to the plaintiffs:

Cornelius H. Tallman and Wife, To John Augustus Page.

Warrantee Deed with full Covenants,

Dated November 29, 1864, >Ack’d December 2, 1864, & Bec’d February 7, 1893, in Liber 1304. of Deeds at page 103.

That deed conveys lots Nos. 166 and 167, Washingtonville.

Cornelius II. Tallman and Wife, To Louisa A. Peneield.

Quit Claim Deed, Dated July 11, 1889, Ack’d July 11, 1889, Tlec’d July 22, 1889, in Liber 1172 of Deeds at page 340.

That deed conveys lots Nos. 166 and 167, Washingtonville, and this language follows :

“ Have remised, released and quit claimed, and by these presents do remise, release and quit claim, unto the said party of the second part, and to his heirs and assigns forever, all those certain lots (then follows a full description of the premises), together with all and singular, the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatsoever, as well in law as in equity, of the said parties of the first part, of, in and to the above-described premises and every part and parcel thereof, with the appurtenances. To have and to hold all and singular, the above-mentioned and described premises, together with the appurtenances, unto the said party of the second part, her heirs and assigns forever.”

Louisa A. PeNfield To Nicholas WiliielM and Wil-HELMINA, his Wife.

Warrantee Deed, with Full Covenant, Dated July 17, 1889, Ach’d July 17, 1889, Eec’d July 22, 1889, in Liber 117Y2 of Deeds, page 328.

That deed conveys lots Nos. 166 and 16Y, Washingtonville.

Before accepting that deed the plaintiffs had the title examined, and it appeared to be valid. Down to that time and for a long time subsequent thereto the plaintiffs had no notice of the conveyance by Tallman to Page or that any one made any claim by virtue thereof.

At the time of the execution of the deed from Tallman to Pen-field and from Penfield to the plaintiffs, the premises were unoccupied, unimproved, uncultivated and unfenced. The consideration in the deed from Tallman to Penfield is $100, but the premises were sold subject to taxes and tax leases.

The consideration in the deed from Penfield to the plaintiffs was $1,000, and they went into possession immediately upon the receipt of their deed and have remained in possession since that time.

Upon these facts the plaintiffs demand judgment declaring their title to the premises valid and requiring the defendant to complete his purchase.

The defendant demands judgment declaring that the plaintiffs have no title to the premises and that his deposit of ten dollars be returned to him.

From the facts recited it appears that the plaintiffs are bona fide purchasers for value without notice of the deed of conveyance to Page, and that the deed from Tallman to Penfield was recorded previously to the deed to Page.

The deed from Tallman to Penfield, however, is what is ordinarily denominated a quit-claim deed. In more strict language, it is a deed of release, and the insistance of the defendant is that the Recording Act does not protect a purchaser for a valuable consideration under such a deed.

The language of that act is this: “Every conveyance of real estate within this State hereafter made shall be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall be first duly recorded.” (I R. S. 756, § 1.)

“ The term £ conveyance,’ as used in this chapter, shall be construed to embrace every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity.” (1 R. S. 162, § 38.)

Deeds of bargain and sale and of lease and release may continue to be used and shall be deemed grants, and, as such, shall be subject to all the provisions of this chapter concerning grants. (1 R. S. 739, § 142.)

As we have already said, an ordinary quit-claim deed is a deed of lease and release, and by this statute is deemed to be a grant.

Moreover, the terms remise, release and quit claim, employed in the deed in question, accompanied by a valuable consideration, as in this case, are sufficient in law to' pass any interest or estate which the person making the instrument had at the time of its execution. (Jackson v. Fish, 10 Johns. 456; Striker v. Mott, 28 N. Y. 92.)

An instrument containing those operative words has been held to be a valid deed of bargain and sale. (Jackson v. Root, 18 Johns. 60 ; Lynch v. Livingston, 6 N. Y. 434.)

Quit-claim deeds are by no means uncommon in practice, and we may assume that many titles are held under them, and it is too late now to hold that they are not conveyances within the meaning of the Recording Acts.

It is quite remarkable that tlie question lias not been decided-in this State, but so far as we can ascertain it lias not.

There is certainly no reason why tlie deed from Talhnan to Pen-field should not be declared a valid instrument for the conveyance of the title. It was so intended by the parties, or at least by the grantee, who paid a valuable consideration without notice of the prior deed.

Our conclusion is, therefore, that the deed is a conveyance within the Recording Statutes, which protect the purchaser and render the deed to Page valid as against Penfield, the grantee.

This conclusion validates the title of the plaintiff, and the defendant must be required to complete his purchase.

As each party asks, for costs they must be awarded to the plaintiffs.

Let judgment be entered according to the foregoing views.

Peatt and Cullen, JJ., concurred.

Judgment in favor of the plaintiff on the submission, with costs.


text:
    Gabriel Tuthill, Respondent, v. The Long Island Railroad Company, Appellant.

      Change of venue for the convenience of witnesses — considerations other than the number of witnesses.

    Upon the decision of a motion to change the place of trial of an action for the convenience of witnesses there are other controlling considerations to he taken into account besides the number of the necessary witnesses of the parties.
    Appeal by the defendant, The Long Island Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Orange on the 6th day of November, 1893, denying, with costs, the defendant’s motion to change the place of trial for the convenience of witnesses from the county of Orange to the county of Kings or Queens.

      W. O. Beecher, for the appellant.

      Vana/mee, Watts <& Vail, for the respondent.
   Dykman, J.:

Tbis action is based upon the negligence of tlie defendant wliicb resulted in injury to the plaintiff.

The venue is laid in Orange county, where the plaintiff resides, and the defendant made a motion at a Special Term of tbis court to change the place of trial from Orange county to either Kings or Queens county for the convenience of witnesses. The motion was denied and the defendant has appealed from the order of denial.

The defendant swears to twenty witnesses and the plaintiff swears to twenty-one. Assuming, as we must, that all these witnesses are deemed necessary by the parties, the plaintiff makes tlie stronger case. It has been held that the motion must be denied where the number of witnesses is equal. (Wood v. Bishop, 5 Cow. 414.) But there are other controlling considerations. It is very unusual to change the place of trial from the country to the city, either the city of New York or Brooklyn.

The reason is that tlie court calendars in those cities are large and the uncertainties of a trial are so great that a litigant whose witnesses reside in the country encounters delays and expenses which would ordinarily deter him from the pursuit of his rights.

On the other hand, a cause upon the calendar of a country Circuit can always be set down for trial for a day when it will be reached and tried. In that way the convenience of witnesses is best sub-served, even though they all reside in the city in which the trial is sought to be-had.

In this case the distance to be traveled is the same for each set of witnesses, but that has now come to be a matter of small moment. The facilities of travel have annihilated space, and distance is counted by hours and minutes.

It is true the county of • Queens is mentioned in the motion as an alternate county. The courts in that county are held at the court house in Long Island City, and the inconveniences of twenty-one witnesses in attending court .there would be well nigh insurmountable.

Moreover, there is a difference in the situation. of the parties. The plaintiff is in poor financial circumstances and unable to transport his witnesses. The reverse is the condition of the defendant. The health of the plaintiff is shattered and he is unable to endure fatigue; no sucb condition obtains with the witnesses for the defendant.

The plaintiff is a resident of Orange county and his physicians reside there likewise. So do all his friends who knew his physical condition before the accident.

In our view, this is not a case where the location of the transaction should control.

The' defendant’s witnesses do not all reside either in Kings or Queens countyaccording to the affidavit six of them reside in New York.

Under all thfe circumstances surrounding the case, we think it should be retained in Orange county, and that the order should be affirmed, with ten dollars costs and disbursements.

Peatt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Petition of the Trustees of The New York and Brooklyn Bridge to Acquire Title to Certain Real Property in the City of Brooklyn, Respondent, now of Thomas J. Leary, Appellant, and Others.

      Inchoate right of dower — ■attaches to the proceeds of property taken by eminent domain —the real estate taken is divested, thereof.

    ■Where real property belonging to a married man is taken by the exercise of the right of eminent domain, during coverture, upon the appraisement and payment of the value to the owner of the fee, an absolute title is acquired divested of any inchoate right of dower existing in his wife.
    In proceedings for the condemnation of real property under the right of eminent domain, the inchoate right of dfower of a wife must be recognized and protected in the proceeds, as against her husband.
    Appeal by the defendant, Jessie Leary, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the Ith day of September, 1893, directing that one-third of the compensation to be received from certain real estate as the consideration thereof be paid to Thomas J. Leary.

      Edward M. Groiot, for tbe appellant Jessie Leary.

      Eromme Brothers, for tbe respondent Tbomas Leary.
   Dykman, J.:

This is a proceeding for tbe acquisition of real property by tbe exercise of tbe riglit of eminent domain.

The fee of the property was in Tbomas J. Leary, and bis wife, Jessie Leary, was made a party to tbe proceeding.

A judgment entered upon default was opened on tbe application of the wife on tbe ground that she 'bad not been served with notice, and tbe judgment was modified so as to provide that one-third of tbe compensation for tbe property, after tbe payment of liens, should be paid into court to abide further order. That judgment lias been acquiesced in without appeal and its provisions have been performed.

The compensation for the premises condemned was $31,000. One-third of the equity after the payment of a mortgage is $6,111, and that is the sum of money now involved.

Subsequently tbe husband made application to the court for tbe payment of this last sum to him. Tbe wife opposed such application and demanded that tbe money be invested during the lifetime of tbe husband, and that her inchoate right of dower in tbe premises be recognized and protected. Her application was denied, and an order was made which directed tbe money to be paid to the husband. Upon that motion no one appeared but tbe husband and wife, and the controversy is between them exclusively. The wife has appealed from the order, and the quéstion involved is whether, in proceedings for the condemnation of real property under the right of eminent domain, the inchoate right of dower of a wife is to be recognized and protected in the proceeds as against her husband.

Where real property belonging to a married man is taken for a public purpose by the exercise of the right of eminent domain during the coverture, upon an appraisement and payment of the value to the owner of the fee, an absolute title is acquired divested of any inchoate right of dower existing in his wife.

So much is fundamental resulting from the nature of the proceedings, and the theory upon which the power of the sovereign to condemn private property for a public use is based.

That theory is that the People in their right of sovereignty are deemed, to possess the original and ultimate property in all lands within the jurisdiction of the State, and may resume the possession again to meet public necessities.

That was also the decision of the Court of Appeals in the case of Moore v. The Mayor, etc., of New York (8 N. Y. 110).

But that does not seem to dispose of the question involved in this appeal. Here the question arises between the husband and the wife over a. fund which may be deemed real estate as well as the surplus arising from a sale upon the foreclosure of a mortgage upon the property of the husband in- which the wife had joined.

In that 'case the inchoate right of dower is held to attach. (Matthews v. Duryee, 4 Keyes, 525.)

In the case of Mills v. Van Voorhies (20 N. Y. 412) it was said that the inchoate rights of the wife are entitled to protection as much as the vested rights of a widow.

The case of Moore v. The Mayor decided that the wife had no interest in the lands of her husband which required compensation to be made to her where they were taken for a public purpose. That while the husband lived he represented the absolute fee which the statute vests and concludes persons upon the confirmation of the report of the commissioners.

But is that decisive of this appeal ? In the case of Simar v. Canaday (53 N. Y. 304) it is said in the opinion of the court: “ We think that it must be considered as settled in this State, notwithstanding Moore v. The Mayor and some dieta in other cases, that as between a wife and any other than the State, or its delegates or agents exercising the right of eminent domain, an inchoate right of dower in lands is a subsisting and valuable interest which will be protected and preserved to her, and that she has a right of action to that end.”

This limitation of the Moore case materially circumscribes its operation and leaves it to stand as an authority only as between the wife and the State and its delegates.

In the Simar case a husband and wife had joined in a conveyance of his land, the sale being induced by the fraud of the grantee, and it was held that the wife had a cause of action against him for damages sustained by the loss of her inchoate right of dower.

This limitation of the Moore case was also noticed in the opinion in the case of Doty v. Baker (11 Hun, 222), where it was held that a release by a wife of her inchoate right of dower in the lands of her husband was a good consideration for his payment or promise to pay her a portion of the purchase money.

In the case of Smart v. Haring (14 Hun, 276) it was held that, such a release by the wife was a good consideration for such a promise, and that a conveyance of property to her in pursuance of such agreement is valid except as to creditors, and is valid as to them to-the extent of the value of such inchoate right computed according to the rule laid down in Jackson v. Edwards (7 Paige, 408).

Where a husband, in order to induce his wife to relinquish her right of dower in certain lands which he wished to sell, agreed to give her seventy dollars a year during her life, the release of her dower was a valuable and sufficient consideration for the promise. (Foster v. Foster, 5 Hun, 557; Garlick v. Strong, 3 Paige, 440.)

In the case of Jackson v. Edwards (7 Paige, 408) the chancellor laid down the rule for computing the value of the wife’s contingent right of dower during the life of her husband.

That case was decided in January, 1839, and in 1840 the Legislature enacted a law which provided for settling the rights of married women in the manner stated by the chancellor for ascertaining the value of the inchoate right of dower of married women in case of a sale of premises, and of securing the money by investment. (Laws 1840, chap. 1YY.)

Dower is highly favored in equity. The right of a doweress is a. legal and moral right to sustenance out of her husband’s estate, and in that respect she is in the care of the law. (Story’s Eq. § 629.)

In view of the authorities, theréfore, and also upon principle, our conclusion is that an inchoate right of dower in lands taken by right of eminent domain is a subsisting interest, which will be protected.

The right of the wife in the fund involved in this appeal should be settled in accordance with the rule laid down by the chancellor in Jackson v. Edwards (supra), and the order should be reversed, with ten dollars costs and disbursements.

PRATT, J., concurred; OulleN, J., not sitting.

Order reversed, with ten dollars costs and disbursements.


text:
    Coe H. Ten Eyck, Respondent, v. The Town of Warwick and Others, Appellants.

      Navigable stream — not created by the artificial deepening of a stream by a dam.

    When a stream not naturally navigable flows into a lake, and by the erection of a dam by a private corporation having the privilege of drawing off the water and owning the fee of the land flooded, the lake is turned into a reservoir, and the water is thus caused to back up in the stream so as to make it navigable, such stream does not thereby become technically a navigable stream, and a bridge across it on the line of a highway is not a public nuisance.
    The common-law definition of a navigable stream, namely, one in which the tide ebbs and flows, has never been adopted in this country, but the rule adopted here is that of the civil law, which makes a-stream navigable where in its ordinary or natural state and condition the stream is capable of use by the public in floating or transporting tire products of the country; it is not necessary that the property transported should be carried in boats, or that the stream should be continuously fit for such use, or such that it can be so used against the current.
    Appeal by the defendant, William A. Randall, as commissioner of highways of the town of Warwick, Orange" county, New York, and the said the Town of Warwick, Orange County, New York, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Orange on the 14th day of November, 1893, enjoining the defendant from closing a swing bridge over a stream.

      Bacon <& Merritt and George W. McJZTroy, for the appellants.

      James ParJcer, for the respondent.
   Dykman, J.:

This is an appeal from an order continuing an injunction.

The defendants besides the town are the commissioners of highways, and the object of the action is to prevent' and restrain them from closing a bridge over a stream which leads into the lower portion of Creen wood lake.

There is a large number of affidavits on both sides, and we have endeavored to glean from them facts which are either uncontra-dicted or satisfactorily established upon which to base our conclusion. In that effort we find the following facts :

Greenwood lake was formerly called Long pond and lies partly in the State of New York and partly in the State of New Jersey. The portion in New York was in Orange county.

In its natural condition the lake was about six miles long from north to south and about three-quarters of a mile wide. No navigable stream ever issued from the lake, and there was far back into time an old dam at its lower end. Neither was there any inlet except small brooks or mountain streams. There was a highway leading from the Chester road to the northerly end of the lake near where the Windmere Hotel now stands, and from there easterly to and across a small stream of water called Sucker brook, which emptied into the lake at its northerly end near the Waterstone Cottage.

That road was carried across the brook by an ordinary plank bridge. The brook was about three and a half miles in length, three or four feet wide and quite shallow. That brook ran in front of the premises occupied by the plaintiff, through level meadow land, but below there the banks of the stream were higher.

About the year 1835 the Morris Canal and Banking Company constructed a dam at the southerly end of the lake about ten feet in height for the purpose of creating a feeder for its system of canals in the State of New Jersey.

After the erection of that dam the water, raised by means of it, filled up the channel of Sucker brook and flowed out over the meadows above, and so formed what is now termed the northerly portion of the lake. The hotel of the plaintiff is about one mile north of the original northerly end of the lake, and upon the portion thereof so formed by the slack water held by the new dam of the Morris Canal and Banking Company. When the water was so raised by means of such dam it submerged the old road and bridge, and left them about six feet under water, and thereafter there was a road opened farther up, and on higher ground, and a bridge was constructed at the place where the bridge in dispute now stands over which the new road was carried.

That road and bridge were constructed by persons living on the east side of the lake, who were cut off by the submergence of the old road and bridge. The bridge was made of plank which rested upon .wooden sleepers in the ordinary manner. Rowboats could pass under it but no others. That road was used by the public and was subsequently adopted as a public highway by the town of Warwick, Orange county.

The lands overflowed by the raising of the dam were paid for by the Morris Canal and Banking Company, which has and exercises the right to draw off the water at its pleasure.

The bridge so erected by private parties, and afterwards adopted and maintained by the public authority of the town, was as complete an obstruction to navigation as the present bridge. That bridge was repaired from time to time and was finally condemned as dangerous.

In the fall of 1891 the plaintiff commenced the construction of a steam launch above the bridge, and completed her in the forepart of the year 1892. Upon her trial trip the plaintiff desired to run her down the stream into the lower part of the lake.

Upon reaching the bridge the plaintiff signed a written instrument by which he agreed to replace the bridge if it was removed,, and it was thereupon demolished and the boat passed along.

The plaintiff did not replace the bridge, and it remained down for some time, and that seems to have been the period during which the plaintiff operated his boat up and down the stream.

Some facts in relation to the construction of this draw, or swinging bridge, are not unimportant. After the old bridge was broken down to allow the passage of the plaintiff’s boat, he requested the commissioners of highways to build the new bridge so high up that his steamer could pass under the same, and proposed to build the approaches to such bridge at his own expense if it was so built higher. Upon ascertaining the expense of such approaches, however, he declined to build the same.

Thereupon the plaintiff proposed to the town officers that they should build a swing bridge, and promised, if such a bridge was built, that lie would take charge of the same, open and close it and save the town harmless from all expense and damage resulting from the same.

The town officers desired to accommodate the plaintiff and to facilitate him in his business, and for the purpose of such facilitation, and in reliance upon his promise and agreement, they built a swing bridge, which they would not have done except for his promise. These facts manifest tlie reason why the bridge was constructed so as to swing, and dispose of the claim that the defendants are under obligation to operate the bridge as a swing bridge because it is constructed in that way.

After the completion of the new bridge the plaintiff refused to carry out his agreement to operate the same, and demanded that the town should open and close it. Such demand was based upon the proposition that the water under the bridge was public navigable water, and that the town could not obstruct the free use and navigation thereof.

Thereupon the commissioners of highways fastened up the bridge and expressed the intention to close the same permanently. This :suit was then commenced and a preliminary injunction obtained, and from the order continuing the same this appeal is taken.

The claim of the plaintiff is based upon his right in the stream in question as a public navigable stream of water, and unless it be such his claim is baseless. He makes no claim beyond his absolute right in the stream in common with the public to navigate the water over which the biidge is built. His position is that the bridge is a public nuisance because it is an obstruction to a public navigable stream of water.

Without a pause to examine the right of the plaintiff to maintain this action to repress a nuisance which is common to the public and a wrong against the public only, and, therefore, to be redressed by a prosecution instituted by the State, (Doolittle v. The Supervisors, of Broome County, 18 N. Y. 155), we have concluded to examine and decide the appeal upon the merits.

The prolongation of Greenwood lake by the erection of the new dam assumes the character of a private reservoir. Its bed is owned by a private company, and the enlargement of the stream is due to ;the same cause.

By the common law of England the test of navigability of a •stream of water was the ebb and flow of the tide, but that rule never prevailed in this country because it was inapplicable to its condition. We have rivers navigable for thousands of miles and capable of floating the commerce of the world, which are tideless.

By the Roman civil law, rivers in which the flow of water is perennial belonged to the public and were navigable if they were capable of being navigated in tlie common-sense meaning of that term.

According to the Digest, a navigable river is statio iturve navigio. The Code Napoleon speaks of navigable rivers as flottables, that is, rivers admitting floats. (Angell on .Tide Waters, 19.)

The rule of the civil law has ever prevailed in the United States, and is another instance of our great obligation to that splendid system of jurisprudence which was developed by the Roman people.

In the State of New York the doctrine of the civil law has been carried to its utmost limit, and the rule to be deduced from the authorities is that all streams are deemed navigable which are capable in their natural state and in their ordinary volume of water of transporting to market the products of the fields, forests and mines.

Because some products may be floated to market as rafts and upon rafts, it is not essential to the public character of the stream that property can be carried in vessels.

As some streams are unnavigable against their current, if they are floatable in their natural state, so as to be of jmblie use with the current, their public character is liberally supported.

Neither is it essential that the floatable capacity must be continuous. If it be ordinarily and subject to fluctuations in volume attributable to natural causes, and occurring with regularity and continuing sufficiently long to make it useful as a highway, it is subject to the public use. These deductions are justified by the fob lowing cases: Shaw v. Crawford (10 Johns. 236); People v. Canal Appraisers (33 N. Y. 498); Morgan v. King (35 id. 459); Pierrepont v. Loveless (72 id. 211); In re Daniel Ball (10 Wall. 557); United States v. Burlington & H. Ferry Co. (21 Fed. Rep. 331).

It will be observed that in all these authorities the -words ordinary condition,” “ ordinary volume ” and “ natural state ” are used to specify the condition required to constitute navigability. That is, streams must be capable in their natural condition of floating commodities to market.

In the case of Morgan v. King (supra) the court said: The true rule is that the public have a right of way in every stream which is capable in its natural state and its ordinary volume of water of transporting in a condition fit for market, the products of the forests or mines,” etc.

It must be “ so far navigable or floatable in its natural state and its ordinary capacity as to be of public use in the transportation of property.”

Tlie stream in question in its natural state answered none of tlie requisites of tlie law to render it navigable. In its ordinary condition it would float nothing of importance.

We have seen that a stream may be subject to a public use if it be ordinarily subject to periodical fluctuations in volume and height which occur with regularity, but this stream meets none of these requirements.

Its augmentation was caused by artificial means by-a private company, and it may be reduced to its original condition at any time at the volition of the company, subject to no public control.

' Sir Matthew Hale, in his celebrated treatise De Jure Maris,, says: “ There be streams or rivers that are private, not only in property or ownership, but also in use, as little streams and rivers that are not a common passage for the King’s people. Again, there be other rivers, as well fresh as salt, that are of common or public use, for carriage of boats and lighters, and these, whether they are fresh or salt, whether they flow and reflow or not, are grima facie-guhlici jxuris common highways for man or goods or both, from one inland town to another.”

In the case of Ledyard v. Ten Eyck (36 Barb. 124) the judge who prepared the prevailing opinion of the court, in speaking of Oazenovia lake, said : “ This lake is about five miles long and three-fourths of a mile wide, has no current and no main inlet. The land lying along its shores is mostly improved and used as farming land-Elegant mansions have been erected, and the region of country is-healthy and beautiful. But this lake, in my judgment, is in no legal- , or just sense of the term navigable water, it is not, in the language-of Lord Hale, a highway ‘ for man or goods or both, from one; inland town to another.’ ”

These remarks apply with equal force to Greenwood lake.

An extensive and thorough examination has failed to. disclose either principle or authority for holding the stream in question a public navigable stream of water.

It is distinguishable in no way from the numerous small meandering streams throughout this State which find their way into rivers. •and lakes, but wbicb are entirely useless for any practical purpose of floatage.

Tire order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

OulleN and Pbatt, JJ., concurred.

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


author: Pratt, J.: DykmaN, J. :

text:
    Thomas J. Burke, as Overseer of the Poor of the Town of New Rochelle, Respondent, v. Peter Burpo, Appellant.

      Town officers constitute a board — delegation of official power — exercise of discretion — bastardy proceedings— order of filiation reversed.

    When there are two or more town officers of the same kind they constitute a hoard, and they cannot adopt any measure, nor institute any proceeding requiring the exercise of judgment_ or discretion, except when duly convened and acting as a hoard.
    'There can he no delegation of official power, and whether in a given case a public prosecution shall he instituted or an application shall he made to a judge or justice of the peace, requires the exercise of judgment and discretion.
    The facts and circumstances considered and commented upon which necessitate the reversal of an order of filiation and maintenance made in bastardy proceedings.
    Appeal by the defendant, Peter Burpo, from a judgment or order of the Court of Sessions of "Westchester county, affirming an order of filiation and maintenance, made January 24, 1893, and entered in bastardy proceedings instituted before two justices of the peace ■of the town of New Rochelle.

      Stephen J. Stihvell, for the appellant.

      Michael J. Tierney, for the respondent.
   Pratt, J.:

This is a bastardy proceeding brought by appeal from the judgment and order of the Court of Sessions of Westchester county, •affirming an order of filiation and maintenance made against the defendant by two magistrates of the town of New Rochelle.

The child in controversy was born on the 8th of January, 1893. Assuming the child was carried the full time, which is 280 days, as to which there is no proof to the contrary, conception must have taken place on the 3d or 4th of April, 1892. The girl, mother of the child, fixes the time of the intercourse in the first part of April, 1892; says it was about the second week in April, the first time it took place; the second time, a couple of weeks later, and the third time, about five weeks after the second time. It is undoubtedly true that the intercourse which made her pregnant took place in the first'week in April. She also testifies positively that it was not on a Sunday nor a rainy day; the latter we might also reasonably assume, as she says that it took place in an open lot upon the ground.

To meet this serious charge the defendant positively swears it is not true, and produces a witness for whom he worked every day, except Sundays and rainy days, from morning until night, from the 23d of March until the 16th of April, 1892.

There could be no ’mistake about this testimony, as the witness produced his time book, upon which he paid the defendant his wages. The same witness also says he went for the defendant in the morning at seven o’clock and took him to his work. The girl fixes the time of day each time as between nine and ten o’clock in the forenoon.

It is clear that this testimony cannot be true. The girl tells two very different stories about the connection. In the Court of Sessions she says that it took place each time at the same place and about the same time of the day; while in her complaint to the magistrate she says “ That when she went to the woods back of her father’s house for anything he would follow her and force connection with him.” In the same complaint she claimed force was used, but it is apparent from her own story that no force was ever used. This may not be very material, except to throw light upon the manner in which the charge was made up and maintained.

It is plain from her story that she is a weak-minded girl, easily influenced by others, and a fit subject to be made the dupe of any designing person. .

The testimony of the girl, while contradictory and unreasonable, cannot be said to be corroborated in any particular by a disinterested witness.

The father and mother testify to nothing material which is not emphatically denied by defendant, and the father is contradicted by Mrs. Archer, an entirely disinterested witness.

It is not at all reasonable that, on four different occasions, in broad daylight, the girl met and had intercourse with the defendant in open lots and lanes in plain view of several houses, and no one ever saw them together; besides, the fear of detection would have selected some other time and place for such a meeting

There seems to be some discrepancy about the age of the girl. The parents seem desirous of making her as young as possible, but the census clerk had her age rendered as twenty years.

Here is a girl, weak-minded, allowed to stroll about at will, in the habit of going berrying and walking about the fields, going to the store evenings, living in a thickly settled neighborhood, who, according to her own story, -was so complaisant as to permit an old man to have connection with her for the first time in her life. Such a detail is incredible. But against this is the oath and character and blameless life of an old man, who for forty years has lived in the same community without reproach.

It is difficult to give credence to this girl’s story, that the first time in her life she yielded to the defendant’s embraces without any inducement whatever, or that she was so ignorant as not to know what he was doing.'

The charge is one so easily made and difficult to defend against, that the courts ought to be sedulous to examine the testimony carefully before finding a defendant guilty.

"We are not satisfied that the evidence in this case warrants the conviction. Order reversed.

CulleN, J., concurred.

DykmaN, J. :

This is a proceeding in bastardy, instituted by one of the overseers of the poor of the'town of New Rochelle.

After the hearing before two justices of the peace, the defendant was declared to be the father of the bastard child, and an order of affiliation was made against him. From that order the defendant appealed to the Court of Sessions of Westchester county, where the order was affirmed by a divided court, the county judge being in favor of reversal. Now tbe defendant bas appealed to this court.

Before any testimony was taken upon tbe trial in tbe Court of Sessions, tbe defendant’s attorney moved to dismiss tbe case on tbe ground that tbe town of New Rocbelle does not support its own poor, and tbe proceeding is brought and prosecuted without proper authority by one overseer of the poor of said town.

Upon that motion tbe decision was reserved, but tbe motion should have been granted.

When there are two or more town officers of tbe same kind they constitute a board, and they can adopt no measures or institute any proceedings requiring tbe exercise of judgment or discretion, except when duly convened and acting as a board.

There can be no delegation of official power, and whether a public prosecution shall be instituted or an application shall be made to a judge or justice of tbe peace in a given case requires the exercise of judgment and discretion, which can only be exercised by tbe board when regularly convened and acting as such. (The People ex rel. Board of Charities v. Davis, 15 Hun, 211; Powell v. Tuttle, 3 N. Y. 401.)

Special authority must ever be pursued strictly. “ The rule seems to be well established, that in the exercise of a public as well as. private authority, whether it be ministerial or judicial, all the persons, to whom it is committed must confer and act together, unless there be a provision that a less number may proceed.” (Downing v. Rugar, 21 Wend. 178.)

Such being the rule of law, the justice who issued the warrant for the arrest of the defendant acted without jurisdiction, because no-proper application was made to him to authorize him to act. (People v. Davis, supra.)

The order must, therefore, be reversed, the proceedings dismissed and the defendant discharged.

Order reversed, proceedings dismissed and defendant discharged.


author: Pratt, J.:

text:
    The People of the State of New York, Appellant, v. Patrick J. Gleason, Respondent.

      Power to purchase property for a municipal corporation does not authorize the audit of bills — indictment for a/adiiing a false claim.

    The power to purchase property for Long Island City neither grants nor implies the power to audit hills against it; that power is expressly delegated to and vested in the common council of said city.
    An indictment charging a person with the crime of-auditing a false claim against a municipal corporation is defective if it fails to state that it was the duty of such person to audit hills against such municipality, nor can an allegation of power to purchase he construed to mean a duty to audit.
    Appeal by tlie plaintiff, The People of tlie State of New York, from an order of tlie Court of Sessions, lield in and for tlie county ■ of Queens, on tlie 16th day of October, 1893, sustaining a demurrer and dismissing an indictment charging the defendant with falsely • auditing a bill against Long Island City.

      John Fleming, District Attorney, for the appellant.

      Frcmcis II. Ycm Yechten, for the resj>ondent.
   Pratt, J.:

This is an appeal from an order sustaining a demurrer to an indictment. It is not necessary to notice the motion to dismiss this appeal, as we think the decision below was right upon tlie merits.

The power to purchase neither grants nor implies the power to audit bills against Long Island City, but that power is expressly delegated to and vested in the common council of said city. (Laws 1871, chap. 461, vol. 1, p. 904.)

The indictment is defective, in that it fails to state that it was the duty of the defendant to audit bills against Long Island City. The object of the statute is to punish for a breach of duty, and if the person owed no duty there could be no breach.

It is an essential ingredient of the statutory crime that the public officer owed a duty which he violated, and unless such fact is alleged 'the case does not fall within the purview of the statute.

The act of 1890, giving the commissioners power to buy, does not .repeal all parts of the charter of Long Island City that devolve upon tbe common council tlie duty of auditing sucli bills, as it is not inconsistent therewith, and even if it did repeal the charter it would be necessary to allege in an indictment that it was the duty of the defendant to audit in order to charge a crime. The allegation of power to purchase cannot be construed to mean a duty to audit.

There is but one point in this matter, as the learned district attorney concedes, that if the allegation of power to purchase does not sufficiently allege a duty to audit, then the indictment is bad.. ¥e are of opinion it does not. ,

The order must be affirmed.

DyeMAN and OulleN, JJ., concurred.

Order affirmed.


text:
    Margaret L. Thomas, Appellant, v. Mary Smith, Respondent.

      Dismissal of the complaint on the opening of the ease — offense within chapter of the Laics of 1890 —judicial notice of ‘ ‘ ca/rnp meeting

    Tlie defendant in an action lias the right to make a motion to dismiss a complaint. on the ground that it fails to set forth a cause of action after the impaneling of a jury for the trial thereof, and before the case is opened; such motion is in effect a demurrer, and the practice is.not to he commended as a careful and. deliberate method of securing justice upon a trial.
    Where a person does an unlawful act, which results in a particular injury to-another, the latter has a remedy by action.
    In order that an offense should be within chapter 840 of the Laws of 1890, it is . not necessary that the person stating to a reporter libelous matter should procure its publication; it is merely required that publication thereof be secured by reason of her statement.
    Words in slander suits must be given their common and popular signification, and a court may take judicial notice.that a “camp meeting” is a religious meeting.
    Appeal by the plaintiff, Margaret L. Thomas, from a judgment. of tlie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of October, 1893, dismissing the plaintiff’s complaint after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit on the 21st day of October, 1893, denying the plaintiff’s motion that evidence be taken on the issues, raised, by the answer- and the defendant’s denial therein.

      Won. J. Nicholson, for the appellant.

      J. T. Marecm, for tbe respondent.
   Pratt, J.:

This is an appeal from a judgment entered on an order dismissing the complaint on a motion made after the jury had been impaneled, and before the case was opened, upon the ground that the complaint failed to set forth a cause of action.

It was, in effect, a demurrer. As matter of law defendant had a right to make such motion, but the practice is not to be commended as a careful and deliberate method of securing justice upon a trial. Had a demurrer been interposed plaintiff’s counsel would have been apprised of the fault (if any) in his complaint, and had time to prepare for argument or take measures to cure the defects in his pleading.

The complaint is as follows, to wit:

“First. That the plaintiff is a married woman, the wife of Mr. Harry Thomas, and is a woman of standing and respectability in the community and among her neighbors where she is known.
“ Second. That as plaintiff is informed and believes, the defendant, with the intent to injure and defame plaintiff in her domestic and social relations, on or about the 10th day of August, 1892, in the city of Brooklyn, stated and declared and spoke to and in the hearing of a representative of the weekly newspaper published weekly in Brooklyn in the vicinity where plaintiff resides, and of sundry other persons, that £ she (meaning this plaintiff) was intoxicated at a camp meeting held an evening or two prior; that she (meaning plaintiff) caused a disturbance at the meeting, and that she had to be put out by a policeman.’
That said statements by defendant were absolutely false, and were made maliciously by defendant to have same published and to malign and disgrace this plaintiff.
That said false statements against plaintiff, so publicly made by defendant, have been published as intended by defendant, and by the reason of the acts of defendant aforesaid, and of her said statements, and the publicity maliciously secured by defendant to spread same in said community, and through a newspaper, plaintiff has thereby been caused great trouble and anguish in mind and body, and has been put to legal and other expense in refuting and denying defendant’s said calumnies, all this to her damage in tlie sum of ten thousand dollars.”

It is necessary, in the first place, to see what the complaint charges. It not only charges slanderous words spoken, but more; it charges an unlawful act on the part of the defendant by and from which the plaintiff has suffered damage.

It is generally conceded that where a person does an unlawful act, which results in a particular injury to a person, the latter has a remedy by action.

That unlawful act was stating to a newspaper man, a reporter, libelous matter concerning the plaintiff, and thereby securing the publication thereof. (Chap. 340, Laws of 1890.)

Is there any doubt, that the publication was secured thereby ? The statute does not say that the person in making the statement must procure it to be published or take any active part in its publication in order to be guilty of a misdemeanor, but that making the libelous statements and thereby securing the publication thereof is sufficient.

I also think that the complaint charged a libel. Suppose a person went into a newspaper office and dictated to a stenographer, for the purpose of having it published, libelous matter, would he not be liable for setting the libel in motion ? It is not necessary that he should write it out. He is as much a principal in the matter as the editor or publisher, more guilty, in fact.

A libel was published, and all engaged in it knowingly were principals, and the complaint sufficiently so charges, specifically setting-out the part played by the defendant.

Neither do I regard it as clear that a good cause of action for slander is not set out in the complaint. Defendant charged that the “ plaintiff was intoxicated at a eamjp meeting held an evening or two prior.” “ That she (meaning the plaintiff) caused a disturbance at the meeting, and that she had to be put out by a policeman.”

The respondent seems to concede that disturbing a religious meeting is slanderous per se, but says it is not alleged that a camp meeting is a religious meeting.

I venture to say that not one person in ten thousand in this community in hearing the expression- camp meeting- would think the term meant anything but a religious meeting. Words in slander suits must be given their common and popular signification.

It would, not have been stretching judicial authority much if the court had taken judicial notice of the fact that a camp meeting was a religious meeting under the well-established rule that courts will take notice of whatever ought to be generally known in the limits of their jurisdiction. At all events, a simple amendment would not have surprised the defendant and would have been in furtherance of justice.

That the defendant appreciated fully the complaint is apparent from the fact that she duly hied her answer in which, among other matters, she pleaded substantially the trath of the libelous charges in justification. Considering all these facts we do not think that the order for dismissal ought to have been granted.

"We think that the plaintiff should have been allowed to proceed with her case and amend, if necessary.

A trial is meant to be a fair struggle after the trath, and not a rivalry in shrewdness or a trap for the unwary. (Salisbury v. Howe, 87 N. Y. 128.)

The plaintiff had stated facts and conduct on the part of the defendant which were willful, unlawful and malicious, and the court was bound to give her such relief, when proved, as the laws required.

The judgment must be reversed and new trial granted, plaintiff to have leave to amend, without costs.

DyKMAN and'CuLLEN, JJ., concurred.

Judgment reversed and new trial granted, without costs, plaintiff to have leave to amend.


text:
    Susan A. Phelps, Respondent, v. John W. Phelps and Another, Appellants.

      Action to establish inchoate dower in the proceeds of the sale of real estate, the title to which was in a third person.

    Qlucre, whether a wife can maintain an action to have an inchoate right of dower adjudged to exist in the proceeds of sale of certain real property not standing in her husband’s name, and to which he never had legal title, when the complaint in the action brought to establish such dower right alleges an agreement in writing, signed by the person holding the legal title to such land by deed, that it is held for the benefit of her husband, although it fails to state in full what the agreement was, or that it would give her husband a right to have a conveyance made to himself of the fee.
    .Appeals by the defendants, Jolm W. Phelps and Richard Goodwin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in-the office of the cleric of the county of Kings on the 29th day of August, 1893, overruling the demurrers of the respective defendants to the complaint, and also from an order of the Supreme Court, made at the Kings County Special Term and entered in said cleric’s office on the 29th day of August, 1893, overruling such demurrers and directing judgment for the plaintiff.
    This action was brought for the purpose of obtaining an adjudication that the plaintiff had an inchoate right of dower in the proceeds of the sale of certain real property alleged to have been purchased in the name of a third person for the benefit of her husband, who paid the entire consideration therefor, and who was the real owner of the same.

      Albert G. McDonald, for the appellants.

      James D. Bell, for the respondent.
   Pratt, J.:

This case involves the question whether a wife can maintain an action to have inchoate dower declared in property not standing in her husband’s name, and to which he never had the legal title. It is raised by a demurrer to the complaint.

Leaving out of consideration the allegation in the complaint that the defendant holds an agreement in writing, signed by a person lidding tibe legal title by deed, stating that it is held for the benefit of defendant, I think, under the law in this State, the demurrer was well pleaded. The complaint fails to state in full what the agreement is or that it would give the defendant a right to have a conveyance made to himself of the fee.

The respondent has quoted a large number of cases, none of which clearly hold that a wife is dowable in property so held except cases in other States where there is a statute giving dower in an equitable estate held by the husband.

"While there is no direct authority in favor of respondent’s contention, yet there are expressions which seem to lean in that direction, and an opinion of the court of last resort only can settle the question.

The case is on the border line, and in the absence of any direct authority upon either side, we have concluded to affirm the decision below as being the most equitable action.

The judgment should be affirmed, with costs.

Dtkman and Cullen, JJ., concurred.

Judgment affirmed, with costs.


author: Pratt, J. :

text:
    Michael Mulligan, Plaintiff, v. John D. Crimmins, Defendant.

      Presumption of negligence — raised, by cm accident.

    There are cases where an accident raises a presumption of negligence.
    A court is not able to say that a spicula would not be dislodged from a chisel by the blow of a heavy sledge, when the chisel was in good order.
    MotioN by the plaintiff, Michael Mulligan, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after judgment dismissing the complaint, rendered at the Queens County Circuit on the 7th day of October, 1892.
    The complaint in this action alleged that while the plaintiff was engaged as a laborer in the employment of the defendant the defendant required the plaintiff to use an unsafe and improper tool, to wit, a certain pickaxe, which the defendant required the plaintiff to hold upon a spike while it was being struck by a heavy hammer; that while the pickaxe was being held by the plaintiff, and was being struck by the heavy sledge or mallet, a piece of the metal was broken from the axe by reason of its being an unsafe, defective and improper tool, which piece of metal struck one of the plaintiffs eyes, whereby plaintiff was damaged in the amount of $15,000.
    The answer denied the allegations of the complaint, other than the plaintiff’s employment, and alleged that the accident was caused by the plaintiff’s own fault and negligence.

      H. A. Monfort, for the plaintiff.

      Gharries G. Nadal and Thomas 8. Moore, for the defendant.
   Pratt, J. :

There are cases where the accident alone'raises the presumption of negligence, but we do not think the present such a one. We are not able to say that a spicula would not be dislodged from a chisel by the blow of a heavy sledge when the chisel was in good order.

There was no proof that the condition of the chisel before the blow was struck was a dangerous one, still less that a reasonable examination would have disclosed the danger.

We are, therefore, of opinion that the plaintiff failed to prove negligence on the part of the defendant.

The judgment must be directed for defendant.

DyrmaN, J., concurred; Cullen, J., not sitting.

Exceptions overruled and judgment ordered for the defendant upon the nonsuit, with costs.


text:
    Bernard Keilt, Respondent, v. The Staten Island Rapid Transit Railroad Company, Appellant.

      Maintenance of a gate by a railroad company — negligence — damages for personal in/juries — verdict sustained by the evidence.

    It is negligence for a railroad company to have, suspended above a passageway, a gate which falls very rapidly and cannot he controlled by the operator.
    Upon the trial of an action brought to recover damages resulting from injuries sustained through the alleged negligence of the defendant, the plaintiff testified that he first saw a gate descending upon him when it was about eighteen inches above his head and a little in front of him. He was going fast and continued to advance, but before he could clear the gate it fell upon him and inflicted the injury complained of. The jury rendered a verdict for the plaintiff.
    Held, that the verdict was sustained by the evidence.

      Appeal by the defendant, The Staten Island Rapid Transit Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of June, 1893, upon the verdict of a jury for $250 after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 13th day of June, 1893, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.
    The complaint in this action alleged that the defendant had as an appurtenant to their business a gate, which opened to allow passengers to pass to docks leading to their boats, which gates were under the charge and control of their agents and servants.
    That on or about the 15th day of May, 1891, while the plaintiff was passing from a train for the purpose of boarding one of said boats, after having duly paid his fare and was going through said gateway, an agent and servant of the defendant, while engaged in the business of defendant under its instructions, directions and authority, suddenly assaulted said plaintiff by willfully and negligently lowering the gate upon him, without warning, and without any cause for so doing, and that said gate, without any fault or neglect on plaintiff’s part, struck him on the head and threw him to the ground with great force and injured him severely.

      Tfracy, Boardman <& Platt, for the appellant.

      Thomas F. Magner, for the respondent.
   Pratt, J.:

The plaintiff having prevailed before the jury, we must regard his version of the facts as established. lie testified that he first saw the gate descending upon him when it was about eighteen inches above his head, and a little in front of him. He was going fast, upon a “dogtrot,” as he described it. He continued to advance, but before he could clear the gate it fell upon him, and inflicted injury.

The defense argue that this recital convicts plaintiff of negligence, in that he did not stop before going under the gate. The jury did not take that view, neither do we.

• The time that elapsed from the time he saw the gate until it struck him, was probably less than a second, and lie might well judge that the safest way to avoid the gate was to hasten forward. The crowd behind him might well impede any effort to return, and it would seem that his safest plan was to hurry forward.

The charge of the court was as favorable as defendant had a right to ask.

The negligence of defendant is clear in having a gate suspended above the passageway which would fall, so rapidly, and which could not be controlled by the operator.

The judgment should be affirmed.

DyKMAN, J., concurred; Cullen, J., not sitting.

Judgment affirmed, with costs.


text:
    In the Matter of the Application of Charles S. Whitney and Others, Appellants, for a Writ of Mandamus to George Kinkel and Others, Supervisors of Kings County, Respondents.

      Division of a county into Assembly districts— division made in reference to citizen population.

    It is impossible to divide a county into eighteen Assembly districts and to have an exact mathematical equality in the divisions as to the population therein, and where the citizen population practically bears the same relation to the alien ■ population in all the districts, it is immaterial whether or not the supervisors of the county divided the county into Assembly districts in reference to citizen population only.
    Appeal by the relators, Charles S. Whitney and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2oth day of August, 1893, denying the relators’ motion for a writ of mandamus.

      Jesse Johnson and F. F. Bcvrncvrd,, for the relators, appellants.

      John B. Meyenborg, for the respondents.
   Pratt, J.:

It is not necessary to discuss the questions raised in this case as they are involved in the case of Baird and others against the same defendants, now before the court.

The only point in -this case not raised in the Bcárd case is as to whether the defendants were bound to divide the county into eighteen Assembly districts equal in reference to citizen population as nearly as attainable.

Assuming such to be the construction of the law, it does not appear that there is any such material discrepancy in this case as will justify setting aside the apportionment.

It would be impossible to have an exact mathematical equality and the law does not require it.

The court below has found that that makes no difference as the citizen population practically bears the same relation to the alien population in all the Assembly districts, and we are forced to the same conclusion.

The order must be affirmed, with costs.

DyeMAN, J., concurred; CulleN, J., not sitting-.

Order affirmed, with costs.

       See ante, page 545.


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    Eugene Sisco, Respondent, v. The Lehigh and Hudson River Railway Company, Appellant.

      Negligence — charge of the coiwt in relation thereto — da/mages for personal injuries.

    Ia an action brought to recover damages for personal injuries alleged to have been caused by the negligence of a railway company, it was shown that the plaintiff was a brakeman, and that while climbing up the side of a car in the discharge of his duties he was struck and injured by the arm of a mail crane which projected so as to come within twelve inches of such car.
    The mail crane had been erected for about four weeks, and the plaintiff had passed it three times before the accident. He had received no notice of its erection and there was no evidence of any necessity for the projecting arm to come within twelve inches of the side of the car.

      Held, that it was proper for the trial court to refuse to charge that the nearness of the structure to the track was no evidence of negligence.
    Appeal by the defendant, The Leliigh and Hudson River Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 5th day of July, 1893, upon the verdict of a jury for $8,000, after a trial at the Orange County Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on tlie 26th day of June, 1893, denying the defendant’s motion to set aside the verdict, and for a new trial made upon the minutes.
    The complaint in this action alleged the incorporation of the defendant, the employment qf the plaintiff by it, the accident to the plaintiff caused by the defendant’s negligence, and the plaintiff’s personal injuries sustained by reason thereof, to his damage to the extent of $10,000, for which sum judgment was demanded.

      John J. BeatPie, for the appellant.

      John W. Jjyon, for the respondent.
   Pratt, J.:

Plaintiff was a brakeman employed by defendant, and while climbing up the side of a freight car in the discharge of his duty was hit and injured by the arm of a mail crane which projected within twelve inches of the car. The structure had been erected about four weeks, and plaintiff had passed it three times before the accident. He had received no notice of its erection.

The jury was instructed that ’in order to find a verdict for plaintiff it must find that the appliance was unsafe, insecure or dangerous, and that reasonable care by defendant would have discovered the danger.

The court refused to charge that the nearness of the structure to the track was no evidence of negligence.

We are of opinion that there was nothing in these instructions of which defendant can complain.

The case is bare of any evidence that any necessity existed for the projecting arm to come within twelve inches of the side of the car up which brakemen must climb.' So far as appears the arm might have been twice as far from the car and yet have performed its work equally well.

If that were so, the negligence of defendant seems clear.

We do not find that plaintiff was negligent.

The judgment should be affirmed, with costs.

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

Judgment and order denying motion for new trial affirmed, with costs.


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    Charles A. Lucas, Appellant, v. Samuel G. Thompson and Another, as Executors, etc., of Oliver B. Lucas, Respondents.

      Account booh — when properly admitted in evidence.

    Upon the trial of an action the objection was made in relation to charges for the payment of taxes, etc., appearing on a certain book, that'no order or authority from the plaintiff was shown for such payments. The book was one that was kept mainly by the plaintiff, and to which he at all times had free access, and in which he made charges and credits.

      Held, that the book was admissible in evidence to show the state of the plaintiff’s account.
    Appeal by the plaintiff, Charles A. Lucas, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the lltli day of April, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal an order of the Supreme -Court, made at the Kings County Special Term and entered in said clerk’s office on the 20th day of March, 1893, denying the plaintiff’s motion to vacate and set aside such report.
    This proceeding was a reference under the statute, after the presentation to the executors of the decedent of a claim against the estate.

      Timothy M. Qi'iffing, for the appellant.

      Thomas F. JBisgood, for the respondents.
   Pratt, J.:

This judgment might well be affirmed on the opinion of the able referee before whom the case was tried. He saw the witnesses and heard them testify, and had a better opportunity to judge of their credibility than an appellate court can have from reading the testimony. It is very clear, from reading the case, that there is no such preponderance of evidence in favor of the plaintiff as will authorize a reversal of the judgment, neither are there any exceptions disclosing error to the prejudice of the plaintiff; indeed, the fair inference from the ledger is that plaintiff was fully p>aid for his labor, and this was the most reliable evidence there was in the case.

The plaintiff neither established the amount of his wages nor the time which he worked.

The evidence of declarations made by the deceased father of the plaintiff were properly excluded, as they had no relevancy in proving a contract or any amount due to the plaintiff.

The same may be said of the exclusion of the question to Anna Lucas, as to whether “ Mr. Ruck assisted in the furniture business.”

Another objection related to charges on the book for payments of taxes, etc., that no order or authority from the plaintiff was shown for such payments. It is to be noticed that the book was one that was mainly kept by the plaintiff; was one to which he, at all times, had free access, and in which he made charges and credits. This fact also answers the exception to the admission of the book in evidence to show the state of plaintiff’s account.

We are unable to discover any error of law or fact in the report of the referee.

The judgment should be affirmed, with costs.

DyicMAN and Cullen, JJ., concurred.

Judgment affirmed, with costs.


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    Charles L. Rowland, Respondent, v. Thomas R. Rowland, Appellant.

      Order of reference to hear and determine — when a proper ease therefor is shown.

    'Tlie complaint in an action stated a good cause of action at law, hut erroneously prayed j udgment for an accounting. The answer denied the co-partnership of the plaintiff and defendant, and alleged that the plaintiff was an employee of the defendant under a salary the amount of which was to he determined by the profits of the business.

      Held, that the answer was consistent with the allegations of the complaint, and that a proper ease for a reference was shown..
    Appeal by the defendant, Thomas R. Rowland, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of September, 1893, referring the action to a referee to hear and determine the issues.

      Tlie following is a copy of tlie complaint in the action:
    “ The plaintiff above named by Lyon & Smith, his attorneys, complains of the above-named defendant and shows:
    “I. That between the 1st day of February,, 1881, and the 12th day of July, 1887, the plaintiff and the defendant were associated together in the business of general engineering, contracting and iron construction, under the name and style of the ‘ Continental Works.’
    “ II. That said business was carried on under an agreement between the plaintiff and the defendant in the nature of a general partnership or quasi partnership, whereby the plaintiff agreed to contribute his time, services and skill to said business, and the defendant the capital and the business theretofore owned by him, and it was agreed that the defendant should have the general management of said business.

      “ It was further agreed that the plaintiff should draw the sum of thirty dollars per week, and should be entitled to a percentage of the net profits in addition thereto. Plaintiff’s percentage of profits for the first three years was agreed to be two per cent, the fourth year four per cent, and for the balance of the period five per cent of the net profits.
    “ III. That from time to time during said periods a provisional or partial statement of the profits of said business was made for the purpose solely of fixing an amount which plaintiff might safely draw from said business under said agreement, in addition to said weekly drawings, and with such amounts as were shown by such provisional or partial statements plaintiff was credited, but that said statements so made were not intended by either party to be final, but were merely temporary and made for the convenience of the parties. The last credit made to the plaintiff upon the books of the said Continental Works was, as plaintiff is informed and believes, on or about the 1st day of February, 1886, and made a total of credits upon the books of said concern upon the profit account of the plaintiff of $8,804,56, as plaintiff is informed and believes.
    “IV. On or about the 12th day of July, 1887, the defendant stated to the plaintiff that the said ‘ Continental Works ’ had made no profits since the last previous statement had been prepared and credit given to the plaintiff, but, on the contrary, had sustained heavy losses, sufficient to wipe out any balance of profits unaccounted for in previous statements, and that the sum then standing upon the books of the Oontinental Works to plaintiff’s credit was all that could, in any event, be due to plaintiff, and at the same time tendered plaintiff a check for the balance as shown by said books, and the plaintiff, having no knowledge of the financial condition of the said ‘ Oontinental Works,’ and relying entirely upon the word of honor of the defendant, who had complete knowledge of the finances of said concern, and the possession, control and oversight of all of its papers, contracts and books of account, accepted said check and gave, as he believes, a receipt in full of all demands.

      “ V. The plaintiff has since learned that it was not, in fact, true that the said Continental Works had made heavy losses, that no profits had been made or that the previous undivided profits had been wiped out, as stated to plaintiff by defendant, but that, on the contrary, large profits had been made, and as plaintiff is informed and believes, large sums had, by defendant, been charged to loss account, upon the books of the concern, which were not properly chargeable to said Continental Works or to plaintiff, and that, in fact, upon a proper accounting a large sum will be shown to the credit of the plaintiff in addition to that already credited to him, but what amount plaintiff is unable to state, owing to the fact that the books of account of said Continental Works are in the hands of the defendant.

      “ YI. That the defendant well knew, as plaintiff is informed and believes, when he told plaintiff that there was nothing more due him, that such was not the fact, and said statement was made for the purpose of deceiving and defrauding the plaintiff and inducing him to give a receipt in full; that the plaintiff relied upon said statement in accepting said check and giving said receipt, and was deceived thereby, and great loss and damage will come to plaintiff, as he is informed and believes, if the said payment and receipt shall be held to be a release and settlement.
    “ Wherefore, the plaintiff prays that an accounting be had of the profits of the said Oontinental Works during the period aforesaid; that upon said accounting a statement of all the transactions of said concern be made, wherein proper debits and credits shall be made from the books, contracts and papers of said Continental Works, and that plaintiff may have judgment for snob sum as be may appear, upon said accounting, to be entitled to, and that be may bave sucb other and further relief both by intermediate or final order and by interlocutory judgment or final decree as may be just and as to equity pertaineth, besides the costs and disbursements of this action.”
    The answer was as follows :
    “ Fiest.
    “ I. This defendant denies all the allegations of paragraphs I, II and III of said complaint.
    “ II. This defendant denies all the allegations of paragraph IV of said complaint, except so much thereof as alleges -the delivery of a check to said plaintiff for the amount shown by the defendant’s books to be due him, its acceptance by the plaintiff, and the delivery by the plaintiff to said defendant of a receipt, in full of all demands against said defendant.

      “ III. \This defendant denies all the allegations of paragraphs V and VI of said complaint.
    “ SECOND.

      “ IV. And, for a further defense, this defendant alleges that, for many years prior to 1881, and until the 2d day of May, 1887, this defendant was cai’rying on the business of general engineering and iron construction, under the name and style of the ‘ Continental Works,’ and was the sole owner and proprietor of the said business and of the buildings, machinery and all other appliances connected with or used in said business known as the Continental Works, at Greenpoint, New York, and was the sole owner or lessee of the lands on which the said buildings stood.
    “ V. That the said plaintiff, from about the year 1869 until the 16th day of March, 1887, was in the employment of said defendant in his said business known as the Continental Works, at an agreed salary, as follows: Until April 26th, 1874, at $9 per week; from this date until February 28th, 1875, at $18 per week; from this date until August 1st, 1879, at $20 per week; from this date to March 6th, 1881, at $25 per week; and from this date to the fall of 1881 at $30 per week; and afterwards and until the first day of February, 1885, at $30 per week, and in addition thereto as a part of such salary a sum equal to two per cent upon the profits of the defendant’s business, to be ascertained as hereinafter stated, and from February 1, 1885, until IVIarch 16th, 1887, at $30 per week, and in addition thereto as a part of such salary a sum equal to five per cent upon such profits, to be ascertained as aforesaid.
    “ YI. That the said profits upon which the percentage, the equivalent of which was agreed to be paid to the said plaintiff as additional salary for his services as such employee, were to be calculated as of February 1st in each year as follows: From the gross earnings of defendant’s said business, there were to be deducted the cost of ail material, work, labor (except such additional salary to said plaintiff and to other employees of this defendant in said business), all charges and outlays for machinery, tools or betterments which it might become necessary to have to properly prosecute the said business, and all losses from all causes, whether of bad debts, accidents, fall of markets or otherwise, interests on bonds and mortgages, all interest paid or allowed in any way, all insurance,' taxes and assessments, depreciation of machinery, tools, &c., also all commissions which might be paid for the procurement of business (it being understood, however, that this defendant should not charge rent for the use of defendant’s premises and property known as the Continental Works), and the remainder after such deductions as aforesaid from said gross earnings, was to be regarded as the profit of said defendant’s business for the purpose only of determinining the amount to be paid said plaintiff as such additional salary as aforesaid.
    “ YII. This defendant denies that the said plaintiff was ever a partner with said defendant or in said business, or ever had any interest whatever therein, or ever had any connection with said defendant or with said business, otherwise than as an employee of this defendant at an agreed salary.
    “YIH. That on the 16th day of March, 1887, the said plaihtiff voluntarily quitted the said defendant’s employment, and never afterwards resumed such employment or had any'connection whatever with said business.
    “ IX, That on or about the 22d day of July, 1887, this defendant and the said plaintiff compromised and settled all claims and demands of said plaintiff against this defendant, and full accord and satisfaction was had between them, and thereupon the said plaintiff accepted, and this defendant paid to said plaintiff the sum of $1,401.68 in full satisfaction and discharge of all claims and demands of said plaintiff against said defendant.
    “Wherefore said defendant demands judgment that said complaint be dismissed, with costs.”

      L. A. LoeJ&wood, for the appellant.

      Lyon (& Smith, for the respondent.
   Pratt, J.:

The complaint states a good cause of action at law, and erroneously prays judgment for an accounting.

The answer states that plaintiff was never a partner in defendant’s business, but was an employee upon a salary, the amount of which was to be determined by the profits of the business.

The answer is thus consistent with the allegations of the complaint. Both the complaint and answer show a proper case for a reference.

The defenses of payment and release will not, in the ordinary course, be put in evidence until the plaintiff has established his cause of action, to do which he requires a trial before a referee.

The order must be affirmed, with ten dollars costs to abide the event.

Dyxman and Cullen-, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Cullen, J.:

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    In the Matter of the Petition of The Brooklyn Elevated Railroad Company, Respondent, v. John S. Nagel and Others, Appellants.

      Condemnation proceedings — •including in the same proceeding various premises of various owners —power of the court to sever the eases — description of easements — disregard of a requirement of the commissioners as to the laying of railroad tracks.

    Easements sought to he acquired in condemnation proceedings, which are designated in the petition as those “which now are or may be the subject of injury from a construction of said railroad or incidental to its use,” are sufficiently described.
    If it be irregular to join the lands of different owners in a single petition, it is within the power of the court to sever the cases, and the entry of an order or judgment in a particular case is, in fact, a severance.

      Where a railroad company was required by commissioners in condemnation proceedings to lay its track or tracks as far from the house line as the method of construction would permit, a reasonable discretion is given to the company as to the location of its tracks, and where the method of construction adopted enabled such company to use lighter transverse girders than if the tracks had been placed in the center of the street, the fact that the tracks are not laid as close together, and, therefore, as far distant from the house line as was physically possible, is not contrary to the requirements of such commissioners.
    Appeal by the defendants, John S. Nagel and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of September, 1893, adjudging that the condemnation of certain real property was required for the public use and appointing commissioners of appraisal.

      Raphael J. Moses, for the appellants.

      Wrn. _ZV Cohen, for the respondent.
   Cullen, J.:

This is an appeal from an order made at Special Term condemning the easement appurtenant to defendants’ premises, invaded or taken by the construction and operation of petitioner’s elevated railroad. An answer was interposed, testimony taken, and thereafter the application granted. Many objections are made to granting the application, some of which only it is necessary to notice. The Matter of the Union Elevated Railroad Company (112 N. Y. 61) is conclusive as to the validity of the franchise of the lessor of the petitioner to build and maintain its road. The power of the lessor company to lease its road is settled by authority. (Woodruff v. Erie Railway Co., 93 N. Y. 616; Beveridge v. N. Y. Elevated R. R. Co., 112 id. 1.)

As to the practice, it has been the common custom since the General Railroad Act of 1850 (Chap. 140) for the petitioner in condemnation proceedings to include in its petition many pieces of land, the properties of different owners. The practice has many advantages; the presentation of all objections at the same time, the appointment of a single set of commissioners to act in the whole class of cases. The practice has been so common that it should not be condemned unless there is some substantial objection to it. Any party can file his answer, and as to such party it is from that time in substance a separate action. If it be irregular to join the lands of different owners in a single petition it is within the power of the court to sever the cases, and the entry of an order or judgment in a particular case is, in fact, a severance. The objection to the description in the petition of the easements sought to be acquired is not well taken. We do not see how they could be well described otherwise than as they are described, which now are or may be the subject of injury from a construction of said railroad or incidental to its use.”

The last objection is as to the structure and the location of the tracks thereon. If there were any dispute of the facts on this question some of the rulings of the court on the trial would be questionable. But there is no dispute. Plainly, the tracks are not as close together, and, therefore, as far distant from the house lines as is physically possible. The requirement on this subject by the commissioners is, “the track or tracks shall be laid as far from the house line as the method of construction will permit.” This left a reasonable discretion in the company as to the location of the tracks. The method adopted doubtless did enable the company to use lighter transverse girders than if the tracks had been placed in the center of the street. But this was the method of construction adopted by the company, and, we think, within its power. Had the commissioners intended to prescribe the rule that the tracks should be contiguous, with space between simply for cars to pass, we think that it would have been so stated.

The order appealed from should be affirmed, with costs.

Pratt and DyeMAN, JJ., concurred.

Order affirmed, with costs.