author: MaetiN, J.:

text:
    In the Matter of the Application of the BOARD OF PUBLIC WORKS OF THE CITY OF WATERTOWN to take Lands for the Extension of Clay Street. STERLING A. WILLARD and Others, Appellants, v. THE BOARD OF PUBLIC WORKS and Others, Respondents.

      Street opening in the city of Watertown — power of the Boa/rd of Public Works — appeal in such proceeding — chap. 180 of 1891; chap. 162 of 1886.

      Semble, that the legislature intended, by section 9 of chapter 180 of the Laws of 1891, entitled “An act to establish a Board of Public Works in the city of Watertown,” to transfer the powers and duties conferred upon the common council by title 7 of the charter of that city (chapter 714 of the Laws of 1869, as amended by chapter 162 of the Laws of 1886), including the power to lay out streets and highways, to the Board of Public "Works, and that the procedure therein provided should be pursued by that board in exercising these powers and performing these duties.
    As the statute (Laws of 1886, chap. 162), which prescribes the mode of procedure in laying out a street or highway in the city of Watertown, declares (§ 7) that if the court confirms the determination and assessment of the commissioners appointed to assess damages “it shall be final and conclusive,” it is at least doubtful if questions as to the form of the report of the commissioners and their method of apportioning damages are the subject of review on appeal from an order confirming the report of such commissioners.
    Appeal by Sterling A. Willard, Nancy Haas, Sarah Court and Henry Court, objectors, from an order made at the Jefferson County Special Term, entered in the Jefferson county clerk’s office May 14, 1892, confirming the report of commissioners appointed to ascertain and assess the damages caused by the taking of land for the opening of Clay street, in the city of Watertown.
    No appeal was taken from the order appointing such commissioners, nor is there any statement in the notice of appeal from the final order of condemnation that the appellants intended to bring up such order for review, as provided by section 1301 of the Code of Civil Procedure.
    On September 1,1891, the Board of Public Works of the City of Watertown passed a resolution setting forth that an application had been made to open Clay street from Academy street to Keyes avenue ; that, in the judgment of the board, such extension should be made, and directing the city engineer and surveyor to prepare a map, profile and description of the. land necessary to be taken for that purpose. On September 21, 1891, such map being presented and filed, a further resolution was passed by the" board that Clay street be extended and opened; that the land described therein be appropriated for that purpose; that notice be given, as required by the charter, to all persons interested in the land taken to file their claims for damages with the chamberlain of the city before October 8, 1891; that in case any claim was filed an application would be made to the County Court of Jefferson county on the 25th of November, 1891, for the appointment of three commissioners to ascertain the damages as claimed, and directing the city attorney to take such legal steps as might be required to carry such resolution into effect. Claims were filed by Henry Court and Sarah Court. On November 25, 1891, the County Court of Jefferson county made an order appointing three commissioners to assess the damages caused by opening such street. The commissioners thus appointed took the. oath of office, fixed the time and place of their meeting, and gave notice of the same as required by law. At the time and place so. appointed, and on subsequent days to which the proceedings were adjourned, the commissioners viewed the premises and heard the proofs and allegations of the parties.
    On January 23, 1892, they duly made a report of their proceedings, and the same was filed in the office of the chamberlain of said city. Notice was given of the filing of the report; that it might be examined by all persons interested; that all persons desiring to object, thereto should file their objections in writing with the city chamberlain before the 23d of April, 1891, and that on that day such report-would be presented at the Special Term of this court for confirmation. Objections were filed to the report. ■ Upon such report, the testimony taken by said commissioners, objections to the report,, the affidavits of E. C. Emerson, Sterling A. Willard, J. B. Wise, W. W. Conde, C. E. Brown and Norris Winslow, and upon all the papers and proceedings had, and after hearing cormsel in favor of the confirmation of such report, and counsel in opposition thereto, an order was made in all things approving and confirming such report.

      E. O. Emerson, for the appellants.

      John N. Carlisle, for the respondent, City of Watertown.

      Watson M. Rogers, for the other respondents.
   MaetiN, J.:

íhe determination of the Special Term from which this appeal is. taken, is sought to be reversed upon the ground that, under the charter of the city of Watertown, the power to open streets and take lands for that purpose is vested solely in the common council,, and not in the Board of Public Works, and, therefore, that the proceedings in this case were void for want of jurisdiction. Hence, the-first question to be determined upon this appeal is whether such-power is vested in the Board of Public Works. The determination of this question is dependent upon the construction of section 9, chapter 180 of the Laws of 1891, entitled “An act to establish a Board of Public Works in the city of Watertown.” To a proper understanding of the intent of the legislature, it is, perhaps, necessary to examine the statutes relating to the subject, as they existed at the time the act of 1891 was passed.

The city of Watertown was incorporated by an act of the legislature passed May 8, 1869. (Laws of 1869, chap. 'TIL) Title 7 of that act provided for the care of the streets, highways, bridges and public improvements of the city. That title, as it was amended by chapter 162 of the Laws of 1886, declared: “ The common council shall have the power to perform the duties, and be subject to the liabilities of commissioners of highways in towns, with the exceptions and modifications contained in this act; the common council shall have full power and authority, by order, recorded in the city records, to lay out, open, make, mend, build, repair, alter, widen, construct, straighten, extend or discontinue streets, lanes, public squares, alleys and highways, walks, bridges, drains and sewers in the city, whenever they shall deem the public good to require it.”

It then provided the manner of laying out such streets and highways, how the damages should be assessed and collected, and specified, in detail, the procedure to be adopted.

While the law stood thus, the act of 1891 was passed, providing for the appointment of four commissioners to be known as the Commissioners of Public Works of the City of Watertown. It then provided : “ § 9. The said board shall have all the powers, and discharge all the duties of commissioners of highways of towns, as given by and with the exceptions and modifications contained in an act entitled ‘An act to incorporate tlie city of Watertown,’ passed May eighth, eighteen hundred and sixty-nine, and the several acts supplemental thereto and amendatory thereof. They shall have the exclusive control of the construction, improvement, repair and cleaning of streets, highways, alleys, avenues, gutters, sewers, culverts, sidewalks, cross-walks, parks and bridges; of the sprinkling of the streets; of the paving of, the streets, and of the purchase of supplies and materials therefor. This provision shall not be construed as transferring fo said board tlie power conferred on the mayor and common council to grant riglit of use of streets by railroad corporations, and prescribing conditions thereof.” It also provides: “ The board may make such rules and regulations as it may deem best * * * for the manner of excavating and opening of any of the streets and highways of said city.” (Sec. 15.)

While the language of the statute of 1891 is inapt and ambiguous, so far as it relates to the question before us, yet, when we consider the then existing statutes and the various provisions of that statute, we are led to believe that the legislature intended to transfer the powers and duties that were conferred upon the common council by title I of the chapter, to the Board of Public Works, including the power to lay put streets and highways therein, and that the procedure therein provided should be pursued by the board in exercising these powers, and in performing these, duties.

It will be observed that section 9 confers upon the board all the powers, and imposes upon it all the duties “ of commissioner’s of highways of towns as given T>y and with the exceptions and modifications contained” in the charter of the city as amended.

When we turn to the charter we find that no powers are granted or duties imposed uj>on commissioners of highways of towns as such; but find that the common council is given the power to perform the duties, and is made subject to the liabilities of commissioners of highways in towns with certain exceptions and modifications contained in that act, and that full power and authority is conferred upon the council to lay out and open streets and highways in the city. The only commissioners of highways mentioned in the act incorporating the city to whom any powers are granted or upon whom any duties are imposed is the common council. It was to the common council as commissioners of highways of the city, and to the powers that were given to the council by the charter, that the legislature referred in section 9. That the legislature intended to confer upon the Board of Public Works substantially the same powers and duties as were previously given and imposed upon the common council, is also indicated by the provision that the first two sentences of section 9 should not be construed as transferring to the board the power conferred upon the mayor and common council to grant the right of use of streets by railroad corporations. This exception, we think, discloses that it was tbe purpose of tbe legislature to confer upon tbe Board of 'Public Works all tbe duties and powers tbat bad previously rested in tbe common council, in relation to tbe streets and highways of tbe city, except in tbe particular mentioned.

Moreover, if it was the intent of this statute to vest in tbe Board of Public Works only tbe powers possessed by commissioners of highways of towns, which includes the power to lay out highways, and tbat tbe power vested in the common council in tbat respect should remain, it would follow tbat tbe board and council would have concuiTent power to lay out and discontinue highways in tbe city. If such was tbe law much confusion would arise and a conflict between tbe board and council would be liable to occur. Tbat tbe legislature intended to vest such concurrent power in tbe board and council, when it must have been manifest tbat conflict and confusion might be .the result, we cannot believe.

We think tbe court properly held tbat tbe Board of Public Works bad power to lay out tbe street in question, and tbat tbe order appealed from should not be reversed upon tbe ground tbat such power rested in tbe common council.

If we are correct in this conclusion, it is at least doubtful if the other questions raised by the appellants as to tbe form of tbe report of tbe commissioners, and their method of apportioning tbe damages, are tbe subject of review on this appeal. The statute, which prescribed tbe mode of procedure in laying out a street 01; highway in tbe city of Watertown, declares tbat if tbe court confirms the ■determination and assessment of tbe commissioners “ it shall be final and conclusive,”-thus plainly indicating tbe intention of tbe legisla ture that every question connected with the determination and assessment should be finally determined by tbe court making such order of confirmation. (Matter of Com. of C. P., 50 N. Y., 493; People ex rel. S. and U. H. R. R. Co. v. Betts, 55 id., 600 ; Matter of D. and H. C. Co., 69 id., 211; Matter of P. P. and C. I. R. R. Co., 85 id., 489.)

But, be tbat as it may, we think tbe order should be affirmed, as we have examined tbe other questions raised by tbe appellants and have found no reason to disturb tbe decision of the Special Term.

We are of tbe opinion that the Board of Public Works bad jurisdiction to lay out tbe street in question; that the proceedings were valid, and that the order appealed from should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Order affirmed, with one bill of costs on this appeal to be paid by the appellants.


source: Caselaw Access Project

license: Public Domain

text:
    CHARLES SPENCER, as Administrator of the Estate of ROBERT J. SPENCER, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Unblocked railroad frog

       —not negligence per se.
    The mere operation, of a railroad without blocking all the frogs on its line does-not constitute negligence.
    In the absence of proof that such blocking was necessary, or at least proper or in general use upon other roads, neither a court nor a jury is justified in finding that an omission by a railroad company to block all the frogs on its line constitutes negligence entitling an employee to recover for injuries sustained by his catching his foot in an unblocked frog.
    Hence, in an action against a railroad company to recover the damages arising out of the death of a brakeman, caused by his catching his foot in an unblocked frog while coupling freight cars in the day-time, where the evidence showed that lie had been in the employ of the company for such a length of time, and engaged in the performance of such duties as rendered it manifest that he must have known that a large portion of the frogs on the road was not blocked; that he had been employed around the particular frog in question for an hour and a half before the injuiy, and that the frog was in plain sight, so that its situation and character were apparent to ordinary observation, and there was nothing in the evidence-which would justify a jury in finding that a frog was an unsafe or dangerous appliance when properly located and properly used, or that it was not reasonably safe for the purpose for which it was designed:

      Held, that a nonsuit should have been granted.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, on a verdict for $1,800 rendered on a trial at the Onondaga Circuit,, entered in the Onondaga county clerk’s office November 28, 1891» and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge and entered in said clerk’s, office November 13, 1891.

      Frcmk H. Hiscook, for tbe appellant.

      T. K. Fuller, for tbe respondent.

       See, post, page 205.

   MaetiN, J.:

This action was to recover damages sustained by tbe death of tbe plaintiff’s intestate, alleged to have been caused by tbe defendant’s negligence in not blocking a frog, in which tbe intestate’s foot was caught, and be was run over and killed by the cars. He was employed by tbe defendant as a brakeman on. its railroad, and engaged in coupling cars at its station at Clyde, at tbe time be was killed. Tbe accident, occasioning bis death, occurred December 14, 1889. Tbe evidence tended to show that it occurred by tbe intestate’s foot being caught between tbe rails or tracks near or in tbe frog, which connected one of tbe main tracks with a side-track.

Tbe plaintiff claimed that there should have been blocks of wood placed in tbe opening of tbe frog, or between tbe rails, and that if blocked the accident would not have occurred. Tbe plaintiff proved that tbe defendant bad blocked some of its frogs in its }arger freight yards, where much shifting and coupling was done, but bad never blocked any at tbe other stations along its road, including tbe one where tbe accident occurred. Tbe plaintiff’s intestate bad been in tbe employ of tbe defendant during a portion of each year for several years prior to tbe accident, usually commencing bis work in tbe fall and continuing until spring, and during a portion of the time he bad lived across tbe road from tbe defendant’s yard, at Dewitt. During tbe time of bis employment be bad been engaged chiefly in running upon through freight trains, between Dewitt and Buffalo and Dewitt and Suspension Bridge. These trains, however, were accustomed to do more or less local business, stopping at tbe way stations on tbe road. As such brakeman be was also engaged in tbe yards at Dewitt and Buffalo helping make up trains, and where they did local business he took part in switching and coupling cars at way stations.

He entered upon his last employment as such brakeman about four weeks before be was killed, and commenced to run upon the local freight tbe day previous to bis death. He took tbe train at Lyons and ran to Rochester. On tbe next day he started on bis return trip and reached Clyde, where he was killed. During these two days he had stopped at the various way stations between Lyons and Rochester going west, and between Rochester and Clyde coining east, doing switching and coupling cars at each of these stations. There were six way stations where coupling and switching were done on the trip west, and seven or eight on the trip east, including the station at Clyde. He had been at work at the station where the accident occurred, and around and near the frog where ho was injured, from an hour to an hour and one-half before the accident.

There was no evidence that the frog where the accident occurred was different from those in general use, or that it and the track around it were not in a perfect state of repair. There was a switch nearly opposite, which plainly indicated the location of the frog. Indeed, it was assumed upon the trial that the plaintifE’s intestate must have known its location.

Snow had been falling and the wind had been blowing some that day, but the snow had not fallen to a sufficient depth to cover the frog, nor was the storm severe enough to obstruct the intestate’s vision. The accident happened in broad day-light, and there was nothing to prevent him from seeing that the frog was not blocked. There were a great number of frogs upon that part of the defendant’s road over which the plaintifE’s intestate had passed, and the larger portion of them was not blocked.

Several years prior to this accident the defendant had established and promulgated a rule requiring its men who were engaged in coupling freight cars to use coupling sticks instead of coupling by hand, and a supply of them was kept on hand in the defendant’s yard into which the decedent ran, and in the caboose of the train •on which he was working when killed. There was, however, proof which tended to show that the employees of the defendant generally made couplings without the use of sticks. The decedent was attempting to couple cars with his hands without the use of a coupling stick when the accident occurred. There was no evidence that any other railroad company blocked the frogs upon its road, or that any similar accident had happened upon defendant’s road.

At the close of the plaintiffs evidence the defendant moved for a nonsuit upon the grounds that no negligence of the defendant had been established ; that it was not shown that the decedent was free from contributory negligence ; and that his injuries arose from risks which were incident to his employment and assumed by him. This motion was denied. It was again renewed at the close of the evidence and again denied. To both these rulings the defendant excepted. The case was submitted to the jury, which found for the plaintiff.

The only ground upon which the plaintiff bases his right to recover is the omission of the defendant to block the frog at the place where the accident occurred. As no special reason was shown why the frog at that place should have been blocked that did not equally apply to every other on defendant’s road, the question presented is, whether it owed to its servants the duty of blocking them at all the stations or side tracks.

A master in the performance of his duty to his servants, is not bound to furnish the best known appliances and machinery, or the safest place in which to do their work, but such only as are reasonably safe. The test is not whether the master has omitted to do something which he might have done, but whether the machinery, appliances and place where the work was to be done were reasonably safe and proper for the use to which they were applied. (Burke v. Witherbee, 98 N. Y., 562; Marsh v. Chickering, 101 id., 396; Bajus v. S. B. and N. Y. R. R. Co., 103 id., 312; Stringham v. Hilton, 111 id., 188; Kern v. De Castro and D. S. R. Co., 125 id, 50.)

A seiwant who enters into an employment which is hazardous assumes the usual risks of the service, and those which are apparent to ordinary observation. If he accepts service with knowledge of the character and position of the machinery, appliances and place where he is to do his work, he takes the risk of such perils as are incident to their use in their then condition and are apparent, and cannot call upon the master to make alterations to secure greater safety. (Gibson v. Erie Ry. Co., 63 N. Y., 449; DeForest v. Jewett, 88 id., 264; Powers v. N. Y. L. E. and W. R. R. Co., 98 id., 274; Sweeney v. Berlin & Jones Envelope Co., 101 id., 520; Anthony v. Leeret, 8 N. Y., St. Rep., 542; Hickey v. Taaffe, 105 N. Y., 26; Williams v. D. L. and W. R. R. Co., 116 id., 628 ; Davidson v. Cornell, 132 id., 228.)

"When an appliance or machine not obviously dangerous has been in daily use for a long time, and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of negligence or carelessness. (Stringham v. Hilton, 111 N. Y., 188.)

A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of the employer, and the evidence must establish personal negligence on his part, or what is equivalent thereto, to justify a verdict, and he is entitled to the benefit of the presumption that he has per formed his duty until the contrary appears. (Cahill v. Hilton, 106 N. Y., 512.)

In Appel v. Buffalo, Hew Boric and Pennsylvania Railroad Company (111 N. Y., 550), the plaintiffs intestate was a switchman in defendant’s yard, and while engaged in' his employment, caught his foot in a frog, and was . run over and killed. It was claimed that blocks of wood might have been placed in the openings of the frog, and thus have prevented the accident.' It appeared that decedent had been in defendant’s employ for some years, and for quite a length of time in and about the yard where the aecident happened, and was acquainted with the frog, and knew it was not blocked. In that case, it was held that, in accepting and continuing in the employment, the decedent assumed the hazard of all known and obvious dangers, and was chargeable with notice of the difficulty in removing the foot when caught in a frog, and of the danger to be apprehended therefrom, and, therefore, the cause of action was not made out, and a refusal to nonsuit was error.

Again, in Ireland v. Gardner (26 N. Y. St. Rep., 895), the plaintiff, while uncoupling cars on defendant’s road, caught his foot in a frog and was thrown down and run over, causing amputation of a leg and arm. In an action to recover for such injuries, it was held that the submission of the case to the jury to find a verdict for plaintiff on the sole ground that the guard-rail was not blocked, was error.

In Haas v. Buffalo, New York and Pennsylvania Railroad Company (40 Hun, 145), the plaintiff was employed by the defendant in its yard. 'While thus employed, his heel slipped in between the guard-rail and the main track opposite a frog, and before he could extricate himself, the ear passed over him cutting off his legs. The plaintiff knew, at the time of entering the defendant’s sen-ice. that blocks were not used in its yard. The defendant requested the court to charge, that plaintiff, having entered defendant’s service with its guard-rails unblocked, and they being in plain sight, and the plaintiff having continued in the service with the guard-rails in that condition, he assumed the apparent risks incident to their existence in the performance of his duty, and could not recover, and that the .accident, which caused the plaintiff’s injury was, under the circumstances of the case, a risk which he assumed, and for which the defendant was not liable. This request was refused, and the General Term held that the court erred in refusing so to charge.

Applying the principles of these authorities to the facts in this ease, we do not see how the judgment can be upheld. That the tracks, cars and other machinery in use upon the defendant’s road at the time and place of the accident were not proper, or in a proper state of repair, is neither claimed nor proved. As we have already seen, there was no evidence that blocks were in general use by the defendant, or that they were in general, or even limited use upon other railroads, or that any accident had ever occurred which w'as occasioned by the omission to block the frogs on the defendant’s road, or that any such accident had ever occurred from that cause on any other road, or that it wras necessary or proper to block the frogs on a railroad.

'While a court might, perhaps, take judicial notice that frogs on a railroad constitute an element of some danger to persons walking over them, it cannot, we think, assume that the mere operation of a railroad, without blocking all the frogs on its line, constitutes negligence. Therefore, in the absence of proof that such blocking wras necessary or, at least, proper, or in general use upon other roads, neither a court nor a jury would be justified in finding that such an omission constituted negligence which would entitle an employee to recover for injuries sustained by having caught his foot in a frog. There is nothing in the evidence, or in the construction of a frog, which would justify a jury in finding that it was an unsafe or dangerous appliance when properly located and properly used, or that it was not reasonably safe for the purpose for which it was designed.

Moreover, the plaintiff’s intestate had been‘in the defendant’s employ for such a length of time, and been engaged in the perform-anee of snob duties as renders it manifest, that he must have known that a large portion of the frogs on defendant’s road was not blocked. We think the evidence was not sufficient to justify the jury in finding that the decedent was ignorant of that fact.

We also find that the decedent had been employed around and near the frog where this accident occurred, for an hour or an hour and one-half before his injury. The frog was in plain sight, and whether it was blocked or not, could have been readily determined by the exercise of the slightest vigilance on his part. It was not only broad day-light, but there was nothing to prevent the intestate from seeing its condition at a glance. Under these circumstances, he must have known and fully understood that this frog was not blocked, unless he neglected to exercise the slightest diligence or make the slightest effort to ascertain its situation.

We think the evidence shows clearly that the decedent had knowledge of the character and situation of this frog, of, at least, that its situation and character were apparent to ordinary observation, and, consequently, he took the risk of the perils which were incident to its use.

These considerations lead to the conclusion that the court erred in denying the defendant’s motion for a nonsuit, and for this error the judgment should be reversed.

Tin's conclusion renders it unnecessary to consider the question whether the decedent was guilty of contributory negligence in not using a coupling stick at the time of his injury.

The judgment and order must be reversed on the law and facts and a new trial granted, with costs to abide the event.

TTartitN, P. J., and MeewiN, J., concurred.

Judgment and order reversed on the law and facts and a new trial ordered, with costs to abide the event.


author: Martin, J.:

text:
    JOSEPH G. HITNER, Respondent, v. ENOS BOUTILIER and Another, Appellants.

      Attachment — sufficiency of papers — complaint on information and belief.

    Affidavits for an attachment are insufficient which fail to set forth the grounds of the claim and cause of action, except by referring to the verified complaint in the action and making it a part of the affidavits, when such complaint is made upon information and belief only, and there is no verified statement in it or in the papers showing the sources of information or the grounds of belief.
    Appeal by tbe defendants, Enos Bontilier and another, from an order, made at tbe Onondaga Special Term on tbe 1st day of October, 1892, denying a motion to vacate a warrant of attachment granted against tbe defendants’ property.

      8. M. Imdsley, for the appellants.

      Jones c& Townsend, for tbe respondent.
   Martin, J.:

This is an appeal from an order denying defendants’ motion to vacate an attachment. Tbe motion was made on tbe papers upon which tbe attachment was granted.

In the affidavits for the attachment the only statement of the facts constituting plaintiff’s alleged claim or cause of action was as follows: “ That the grounds for said claim and causes of action are fully set forth in the complaint in this action, which is hereto annexed, and which has been duly verified by this deponent September 20, 1892, and deponent here refers to the said complaint, and the same and the whole of it is made a part of this affidavit, with the same force and effect as though it was here set forth and repeated in full.” The allegations in the complaint were all made upon information and belief, with no statement in the complaint or affidavits as to the sources of plaintiff’s knowledge or grounds of his belief.

The appellants contend that the attachment was improperly granted, because none of the affidavits upon which the warrant was issued disclosed the existence of any cause of action against the defendants.

It seems to be settled that to entitle a plaintiff to a warrant of attachment he must, by affidavit, show sufficient facts to establish a cause of action against the defendant, and specify the grounds of his claim. (Code of Civ. Pro., § 636 ; Jacobs v. Hogan, 85 N. Y., 243, 244; Manton v. Poo'e, 67 Barb., 330 ; Walts v. Nichols, 32 Hun, 276 ; Belden v. Wilcox, 47 id., 331; Pomeroy v. Ricketts, 27 id., 243.) In Jacobs v. Hogan (supra) Rapallo, J., in delivering the opinion of the court, said: “ The affidavit wholly omitted to show that the plaintiff had any cause of action against the defendants upon which an attachment could be founded or to specify the grounds of his claim. These were fatal jurisdictional defects, which entitled the appellants to have it set aside.”

It is obvious that in this case sufficient facts were not shown to entitle the plaintiff to an attachment unless they appear in the complaint. But the facts in the complaint are stated solely upon information and belief, and the rule seems to be that the material averments necessary to entitle a plaintiff to a warrant of attachment must be stated positively, and not upon information and belief, unless the sources of information and grounds of belief are stated. (Steuben Co. Bank v. Alberger, 78 N. Y., 252; Hill v. Bond, 22 How. Pr., 272; Ackroyd v. Ackroyd, 20 id., 93 ; Ex parte Haynes 18 Wend., 611; Pride v. I., D. and W. Ry. Co., 21 N. Y. St. Rep., 261; Buell v. Van Camp, 119 N. Y., 160.) In Buell v. Van Camp (supra) Earl, J., said: All that is required is that the information furnished by the affidavit shall be such that a person of reasonable prudence would be willing to accept and act upon it. The mere averment, however, of a fact upon information and belief without more is not sufficient; but the sources of the information and the grounds of the belief must be stated so that the judicial officer to whom the affidavit is presented may judge whether the information and belief have a proper basis to rest on.” In 1 Rumsey’s Practice (518), it is said: “In this case, as in others, a verified pleading is regarded as an affidavit. (Code Civ. Pro., § 3343, sub. 11.) When so used, however, it should comply with the requirements of other affidavits as to the manner of stating the facts.”

In the case before us, there was no verification by affidavit of the facts stated in the complaint. Such facts having been stated on information and belief only, without any verified statement showing tbe sources of information or grounds of belief, we think the affidavits were not sufficient to justify the issuing of the attachment.

The case of Haebler v. Bernharth (115 N. Y., 459) is notin conflict with this conclusion, as an examination of the appeal book in that case discloses that the allegations in the complaint were positively stated.

Moreover, the sufficiency of the plaintiff’s affidavits to show that the defendants had removed or were about to remove their property from the State with intent to defraud their creditors, or had assigned, disposed of or secreted, or were then assigning, disposing of or secreting their property with like intent is, to say the least, doubtful. But, as the order must be reversed on the grounds already stated, it is unnecessary to examine this question.

It follows, therefore, that the order appealed from should be reversed and the attachment vacated.

HabdiN, P. J., concurred; MbbwiN, J., not sitting.

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


author: MartiN, J.:

text:
    FREDERICK C. FRIESS, by JOHN FRIESS, his Guardian Ad Litem, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Unblocked railroad frog in a sidewalk at a crossing

       — injury to a pedestrian by— negligence — omission to sound a whistle or bell — no flagman at crossing — questions tending to criminate a witness — statement of ground of privilege to decline to answer — infant’s responsibility for negligence.

    In an action against a railroad company, brought to recover the damages resulting from a personal injury alleged to have been sustained by a pedestrian through catching his foot in a frog maintained by the company on its track in the sidewalk of a city street crossed by the track, the evidence showed that the frog was an open one, so constructed that the foot of a passer by was liable to be caught therein, and was used without being blocked or its opening in any manner filled, or any other means being adopted to render it safe for persons crossing the track on the sidewalk, that blocks were extensively used for that purpose, and that there were other means by which, if adopted by the defendant, danger from such frogs could have been easily prevented, and was coupled with evidence tending to show that the plaintiff, a hoy twelve years of age, was not familiar with the crossing, nor with the operation of trains at that point, nor with the purpose and construction of a frog, and was not aware of any danger to he apprehended from passing over it:

      Held, that the evidence was sufficient to take the case to the jury on the question of the defendant’s negligence.

      Spencer v. New York Central and Hudson River Raib'oad Company (ante, p. 196) distinguished.
    A pedestrian upon a street has a right to use its sidewalk, although knowing it to be in an unsafe condition, and, if injured, it is a question for the jury whether he was guilty of any carelessness which contributed to the injury.
    Contributory negligence is a question of fact and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt; it is only in very exceptional cases that it can he adjudged as a necessary legal conclusion from the facts found.
    Notwithstanding the repeal of the statute requiring the sounding of the whistle or the ringing of the bell when a train is approaching a crossing, it is yet the duty of railroad corporations to run their trains with care and caution, and when approaching a crossing to give some warning by whistle, bell or otherwise, and, therefore, evidence that no such signals were given is admissible in actions against railroad companies for negligence.
    Although negligence cannot be predicated on the omission of a railroad company to maintain a flagman at a crossing, where it is under no legal obligation so to do, still the fact of such omission may be admissible, in evidence against a railroad company, as bearing on the question whether the act of the company, alleged as the cause of an accident, was negligent or not in view of the absence of a flagman.
    A physician, a witness for the plaintiff, was allowed, under objection, to answer the following question: “Besides the accident, was there any other cause that would account for this condition of the (plaintiff’s) head.”

      Held, that when addressed to a witness qualified to answer it, being a physician who had attended the plaintiff and knew all his symtoms and his condition, the question was properly admitted.
    When the trial court can percieve that a question put to a witness would have a tendency to criminate him, it is its duty to inform the witness of his privilege and to sustain him in declining to answer.
    It may be that where a question does not disclose any ground for apprehension the party putting it may be entitled to have the ground of the privilege stated by the witness, at least sufficiently to enable the court to see how the answer might fairly and reasonably tend to criminate him, but no such necessity exists where it is readily seen and clearly understood by the court, and by the party putting the question, that an answer thereto would tend to convict the witness of a crime as, e. g., where the question is whether the witness had, on a certain occasion, admitted committing perjury.
    The refusal of a trial court to compel a witness to specify the ground upon which he claims the privilege to decline to answer a question put to him on cross-examination, an answer to wliicii might tend to criminate liim, is, at most, a harmless error and does not furnish a ground for reversal.
    The question, at what age an infant’s responsibility for negligence may he presumed to commence, is not one of fact but of law, and, in the absence of evidence tending to show that a boy twelve years of age was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track that an adult would, he must he deemed mi juris and chargeable with the same measure of caution as an adult.
    The degree of care required by the law of a person crossing the track of a railroad depends upon the maturity and capacity of the individual, under all the surrounding circumstances, and if there is any doubt as to the facts or the inferences to be drawn from them the question must be submitted to the jury.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, entered in the Onondaga county clerk’s office November 20, 1891, on the verdict of a jury for $5,000, rendered at the Onondaga Circuit, and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge, and entered in said clerk’s office on or about October 27, 1891, in an action to recover damages for personal injuries sustained by the plaintiff, and alleged to have been caused by the negligence of the defendant.

      F. 3. Hiscoók, for the appellant.

      P. B. McLennan, for the respondent.

      See, ante, page 196.

   MartiN, J.:

The accident which was the subject of investigation on the trial of this action occurred on the 24th day of May, 1889. It happened at a point where the tracks of the defendant’s railroad cross Williams street, which is one of the public streets of the city of Syracuse, and extensively used for the passage of teams and foot passengers. At this place the tracks of the defendant extend in an easterly and westerly direction, crossing Williams street at nearly right angles. There was a plank sidewalk on the west side of the street which crossed the railroad track. In this sidewalk, and within the bounds of the street, the plaintiff had placed a frog to connect the main track with a side track, which deflected from the main track at that point. The frog was an open one, and so constructed that the foot of a person passing over the sidewalk was liable to be caught therein. It was used and operated by the defendant without being blocked, or the opening in any manner filled, or any other means being adopted to render it safe for persons crossing its tracks on the sidewalk. The plaintiff, at the time of the accident, was twelve years of age. lie resided with his parents on "Williams street, a little north of the crossing. lie had resided there only about ten days. Before that he lived in Schoharie county. The evidence tended to show that the plaintiff was not familiar with this crossing, nor with the operation of the defendant’s trains at this point, and that he was unacquainted with the purposes and construction of a frog, and was not aware of any danger to be apprehended from passing over it. At the time of the accident the defendant was backing a tender and engine easterly, moving a train of about twenty-one cars from the Soda Ash Works, which was located about a mile westerly from Williams street.

The evidence introduced by the plaintiff was also to the effect that while passing along the sidewalk on Williams street over defendant’s track, he caught his foot in this frog and was unable to remove it; that while in this situation the tender of the defendant’s train struck him, knocked him down between the rails and under the train, and that he was dragged along the tracks from this point easterly, a distance of about 1,000 feet, where the last car of' the train passed over his leg, so crushing it that it became necessary to amputate it above the knee; and that he also sustained other injuries. In going this distance the train passed two other streets where the crossings were planked, so that the planking was even with the surface of the rails.

This action was for negligence. The negligence charged was the maintenance in the sidewalk of this frog and the rails and appliances connected therewith in a manner which rendered them dangerous to persons passing. How this accident happened was the question chiefly litigated'on the trial. The plaintiff claimed that it occurred as already stated. This frog was not blocked, or so constructed as. to provide against accidents of this kind, although the evidence disclosed not only that blocks were extensively used for that purpose,, but that there were other means by which such on accident could have been easily prevented if adopted by the defendant.

On the other hand, the defendant contended and introduced evidence which tended to show that the plaintiff was engaged in stealing. a ride at the time of the accident, and that his injury resulted from his falling from the train and being run over by the cars.

The jury found for the plaintiff. The evidence was conflicting. If the jury believed the evidence given in support of the plaintiff’s theory, it was sufficient to justify it in finding that the accident occurred in the manner claimed by the plaintiff. It may, perhaps, be said that if it occurred in that manner it was unusual, still, we think, we would not be justified in holding that it was either impossible or so improbable as to justify us in determining, as a matter of law, that it could not have occurred in the manner claimed. The question whether it occurred as claimed by the plaintiff, or whether as claimed by the defendant, was for the jury, and its findings should not, we think, be disturbed by us, especially in view of the fact that two juries have already arrived at the same conclusion. A careful study of the evidence contained in the appeal book has led us to the conclusion that the question of the defendant’s negligence was a question of fact for the jury.

This case is clearly distinguishable from the case of Spencer v. New York Central and Hudson River Railroad Company, decided by this court at this term, as in that case there was no evidence to show that blocks were in general use or proper for the purpose of preventing injury to persons passing over the frogs in a railroad track, or that there were any other means that were in general use or pi’oper, which could have been adopted to prevent such an acci' dent. Moreover, in that case the question arose between the defendant and one of its employees, who, upon entering the defendant’s employment, assumed the usual risks of the service and those which were apparent to ordinary observation. In that case the frog was in the defendant’s yard, while in the case at bar it was in a public street.

This leads us to the consideration of the question whether the plaintiff was guilty of contributory negligence. A passenger upon a street has a right to use its sidewalk, although knowing it is in an unsafe condition, and if injured, it is a question for the jury whether he was guilty of any carelessness which contributed to the injury. (Bullock v. Mayor, etc., 99 N. Y., 654; Pomfrey v. Village of Saratoga Springs, 104 id., 459.) Contributory negligence is a question of fact and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. (Thurber v. H. B., M. and F. R. R. Co., 60 N. Y., 326; Massoth v. D. and H. C. Co., 64 id., 529.) Under the evidence in this case, we think the question whether the plaintiff was guilty of any negligence which contributed to his injury was a question of fact and properly submitted to the jury.

Nor are we disposed to interfere with the order made by the trial court denying the defendant’s motion for a new trial. The trial court heard the evidence, saw the witnesses upon the stand, observed their demeanor and manner of giving their testimony and was satisfied with the verdict. As the evidence was conflicting, and entirely sufficient to justify the verdict, we are not inclined to disturb this order.

Neither do we think that it can be said that the verdict was against the, weight of evidence. We think it was not. We are of the opinion that the question of the defendant’s negligence, and the plaintiff’s freedom from contributory negligence, were questions for the jury, were properly submitted to it, and the evidence justified the verdict and judgment entered thereon. It follows, therefore, that, unless some of the exceptions taken by the defendant require a reversal of the judgment, it should be affirmed. This leads us to an examination of the various exceptions taken by the defendant to the admission and rejection of evidence, and to the charge.

The defendant claims that the court erred in admitting evidence that no bell was rung or whistle blown as the train, which ran over the defendant, approached the crossing where he was injured. We think this evidence was admissible. Notwithstanding the repeal of the statute requiring the sounding of the whistle or the ringing of the bell when a train is approaching a crossing, we think it is yet the duty of railroad corporations to run their trains with care and caution, and when they approach a crossing to give some warning by whistle, bell or otherwise, and that, therefore, evidence is admissible to show that no such signals were given. (Vandewater v. N. Y. and N. E. R. Co., 32 N. E. Rep., 636, 637.)

On the trial the plaintiff was permitted to show that there was no flagman at the street when this accident occurred. The evidence was objected to, when the court said: “ Of course, it cannot be claimed under the law of this State that the company was under any legal obligation to have a flagman at this point. I thi k I will take the evidence.” To this ruling the defendant excepted. "We do not think the exception well taken. In Houghkirk v. Delaware and Hudson Canal Company (92 N. Y., 219) the court submitted it to the jury to determine whether, under the circumstances of that case, due care required the presence of a flagman, and whether, for the omission of that precaution, the defendant was chargeable with negligence. This was held error. But in discussing the question in that case it was said: “A railroad company is not bound and owes no duty so to station a flagman, and negligence cannot be predicated of the omission. The fact may be proven as one of the circumstances under which the train was moved, and by which the degree of care requisite in its handling and running may be affected; so that the question never is, whether there should have been a flagman, or one ought to have been stationed at the crossing, but whether, in view of his presence or absence, the train was moved with prudence or negligence.” The doctrine of that case, we think, sustains the ruling under consideration.

The plaintiff, under the defendant’s objection and exception, was permitted to prove the distance that one standing at the frog could see a train if there were cars standing on the siding, and also the distance if there were no cars there. Ye find in this ruling no such error as would justify an interference with the judgment.

Dr. Flint, who attended the plaintiff after his injury, was called as a witness, and after testifying to the appearance, nature and character of plaintiff’s injury, was asked : “ Besides the accident, was there any other cause that would account for this condition of the head ? ” [This was objected, to as improper and incompetent; overruled, and the defendant excepted.] The witness answered: No.” As the witness was a physician, had attended the plaintiff, knew all his symptoms and his condition, we think he was qualified to answer the question, and that the evidence was properly admitted.

On the cross-examination of the witness, Emma Yertigan, the defendant’s counsel interrogated her as to her having sworn out a warrant charging a man with having committed a rape on her, as to having seen the district attorney and sheriff, and as to having seen a couple of other men. She was then further examined as follows: “ Q. A couple of other men who said that they had been familiar with you at that time? [Objected to as incompetent, immaterial and improper. Objection sustained.] Q. At that time there, in the presence of District Attorney Hancock and Mr. O’Neil here, did you admit that it was not true that Mr. De Busha had committed a rape upon you, and that you had swrorn falsely when you charged him with it ? [Objected to as incompetent, immaterial and improper.] The Court: You may answer it if you like. You are not obliged to answer it unless you see fit. Do you decline to answer? A. No, sir. Q„ Do you want to answer? A. No, sir. By Mr. Hiscock: Q. You decline to answer that question, do you ? You refuse to answer that question, do you ? A. Yes, sir. Q. Subsequently this proceeding against this man was dropped ? [Objected to as incompetent. Sustained.] Mr. Hiscock: Your honor holds that she can refuse to answer whether she has admitted committing perjury or not? The Court: Yes. [Exception for defendant.] By Mr. Hiscock: Q. Do you refuse to answer that question, whether you admitted then committing perjury, upon the ground that it would disgrace you to answer the question ? [Objected to as incompetent.] The Court: I don’t think that is proper. [Exception for defendant.] By Mr. Hiscock: Q. Do you refuse to answer that question upon the ground that it would be confessing the commission by you of a crime ? [Same objection. Sustained. Exception for defendant.] The Court: I am wrong perhaps in these rulings, and I will recall both of these last rulings. The plaintiff is not in a position to object to her being asked these questions. I overrule the objections to both questions, and instruct the witness she may answer them or not, as she sees fit. [Exception for defendant.] (Question read.) ‘Do you refuse to answer that question whether you admitted then committing perjury upon the ground that it would disgrace you to answer the question?’ The Court: You may answer that or not, as you see fit. Do you want to answer that question ? A. No, sir. (Question read.) ‘ Do you refuse to answer that question upon the ground that it would be confessing the commission by you of a crime?’ By the Court: Do you want to answer that question? A. No, sir. Mr. Hiscock: I take an exception to each, of those rulings. By Mr. Hiscock: Q. Now I ask you to state here any reason why you decline to answer that question, whether you admitted at that time committing perjury ? The Court: Q. What do you answer to the question ? Do you understand the question? A. Yes, sir. Q. Do you want to answer that? A. No, sir. Q. You don’t want to answer that; .you don’t want to state any reason? A. No, sir. Mr. Hiscock: I ask the court separately to instruct her to answer each of those questions. The Court: I decline to instruct her that she must answer them; I decline to compel her to answer them. Mr. Hiscock: To that refusal I except.”

It is an old and well-established principle of the law of evidence, that where it reasonably appears that the answer to a question will have a tendency to expose a witness to a criminal charge, he is not bound to answer. This is so, even where the fact in regard to which he is interrogated forms but a link in the chain of testimony which would convict him, and he is protected without being required to explain how he might be criminated by the answer. In respect to this claim of privilege, there are two extremes which ought equally to be avoided: First. That of requiring from a witness, who has honestly claimed the privilege, any explanation whatever of his reason for refusing to answer, if the court can see how such answer may fairly and reasonably tend to criminate him; and, second, that of permitting a witness to interpose the shield of apprehended peril as a protection against every question which he is disinclined to answer, although there be nothing in the circumstances of the case wdiieh, in the least, suggests the danger. (Youngs v. Youngs, 5 Redf., 506; People v. Mather, 4 Wend., 232.)

Whether an answer may tend to criminate a witness is a point which the court may determine, under all the circumstances of the case when the protection is plain, without requiring the witness to explain how the effect is to be produced. In cases of this kind, the court must see, from the circumstances and nature of the evidence, which the witness is called upon to give, that reasonable grounds exist for apprehending danger to the witness from being compelled to answer. (Taylor on Ev., § 1457.)

It is said, however, in New v. Fisher (11 Daly, 313): “Where the answer to a question may tend to criminate or degrade a witness, it is, undoubtedly, tbe privilege and duty of tbe court to instruct the witness as to bis legal rights, and the witness then has the right to claim his privilege; but the party seeking the evidence has the right to make the witness claim his privilege, and to the statement by the witness that he refuses to answer because the answer may criminate or degrade him.” ¥e seriously doubt the correctness of this rule. We are of the opinion that when the court can perceive that a question put to a witness would have a tendency to criminate him, it is its duty to inform the witness of his privilege, and to sustain him in declining to answer. It may be that where a question propounded does not disclose any ground for apprehension, that the party may be entitled'to have the ground of the privilege stated by the witness, at least, sufficiently to enable the court to see how the answer might fairly and reasonably tend to criminate him. Surely no such necessity existed in this case, as the question put to ■the witness was whether she had admitted committing perjury. That this would tend to convict her of that crime was readily seen and clearly understood by the trial court, and must also have been equally understood by the defendant.

Moreover, if the rulé is as claimed by the defendant, and as held in the New Case (supra), still, we are unable to discover, in the rulings of the trial court, anything that would justify a reversal of the judgment. From the claim of such privilege and its allowance, no inference whatever could be legitimately drawn affecting either party. (Phelin v. Kenderdine, 20 Penn. St., 354.) Nor could the fact of such refusal have been commented on by counsel, or taken into consideration by the jury in determining the weight to be given to the witness’ testimony. (Rose v. Blakemore, Ry. & M., 382; Rex v. Watson, 2 Starkie, 158; Lloyd v. Passingham, 16 Ves. Jun., 59; Carne v. Litchfield, 2 Mich., 340; Foster v. People, 18 id., 273; People v. Maunausau, 60 id., 15.) If the court had compelled the witness to specify the ground on which she claimed her privilege, it would not have legitimately aided the defendant. Therefore, if the rulings were erroneous, the error was harmless, and not prejudicial to any of the defendant’s legal rights.

On the trial the defendant, on the re-examination of one of the witnesses, asked the following questions: “In answer to counsel you said you didn’t remember of seeing any boys on that day run-nino- along by the train?. Tes, sir. What do you mean by that, that it is so frequent that you paid no attention ? ” The latter question was objected to, and the objection was sustained, to which the defendant excepted. We do not think this exception valid. We know of no principle which would have justified the court in admitting evidence of the fact that boys, other than the plaintiff, frequently ran along by the defendant’s trains. We can discover no legitimate purpose for which this evidence was admissible, and think the court properly excluded it.

After the court had concluded its charge, the defendant requested it to instruct the jury that upon the evidence in this case plaintiff must be held to have been sui juris at the time of the accident, and, therefore, bound to observe the same precaution and care in crossing the defendant’s tracks at Williams street as an adult.” To this request the court replied: The first part of it I charge; but I will have to tell you what it means, perhaps, if counsel desire me to. That term is used to express that condition of a child in which he is old enough to act for himself; and I may state here, incidentally, that the books are vacillating as to that age, between the ages of about five to seven years. This boy was twelve years of age, so that he was clearly, as I charge you, within the rule that he was old enough to act for himself, and, therefore, that negligence can be predicated in his case on his own failure. If it were a question of a child of four or five years of age, then the question would be not whether the child himself was guilty of negligence, but whether his guardian or his father or mother were. In this case this boy was clearly within the rule charging him with personal care. The latter part of the proposition I refuse to charge, to wit, that he was bound to observe the same precaution and care in crossing the tracks at Williams street as an adult. I have expressed the idea with reference to that. Perhaps I had better repeat it. I do not charge you that he was not bound by the same rule as an adult. The defendant asked me to charge that he was. I say, £ no; I cannot do that,’ nor, on the other hand, will I charge that he was not; but I leave it to you to say whether, considering his age and the extent of his judgment, intelligence and all that, he was of sufficient intelligence and age to be governed by the same rule as an adult. If not, then you apply the rule otherwise. You may, in either event, consider the fact of his age, intelligence and judgment as bearing upon the question.” Subsequently, the defendant made the following request: I ask your honor to charge that the plaintiff must show affirmatively that he has not the same judgment and discretion as an adult before he can be claimed to be held to a less strict responsibility as to contributory negligence than an adult.” To this the court rephed: “ Tes; I will charge that; that the burden of proof is upon the plaintiff to show that he is 'of less intelligence than an adult.” The defendant’s counsel then proffered this further request: “ I ask your honor to further charge, that in the absence of evidence tending to show that a boy twelve years old was not qualified to understand the danger and appreciate the necessity for observing the same degree of caution in crossing a railroad track as adults would, he must be deemed sui juris and chargeable with the same measure of caution as an adult.” To this the court said: “ The first part I charge anyway. I have already. And the last part I charge too, it is the same thing; that the burden of proof is upon him of showing that he comes within that class of young persons who are to be excused from the complete care which is exercised by an adult.’’ The defendant’s counsel then said: “ I ask your honor to say that in this case there is no evidence, either direct or circumstantial, which shows that he is of less judgment or discretion than an adult.” This the court refused to charge, and the defendant excepted.

It has been held that the question, at what age an infant’s responsibility for negligence may be presumed to commence, is not one of fact, but of law. In the absence of evidence tending to show that a boy twelve years of age was not qualified to understand the danger and appreciate the necessity for observing that degree of caution in crossing a railroad track that an adult would, he must be deemed sui juris and chargeable with the same measure of caution as an adult. (Tucker v. N. Y. C. and H. R. R. R. Co., 124 N. Y., 308.)

When we examine the charge of the court we find that it not only charged that upon the evidence the plaintiff must be held to have been suijiwis at the time of the accident, but also charged that, in the absence of evidence tending to show that he was not qualified to understand the danger and appreciate the necessity for observing the same degree of caution in crossing a railroad track as adults would, he must be deemed sui juris and chargeable with the same measure of caution as an adult. Thus it will be observed that when all that portion of the charge relating to this question is taken together, the court instructed the jury in accordance with the principle of the Tucker case, and none of the defendant’s exceptions to this portion of the charge are valid within the principle of that case, unless the court erred in refusing to instruct the jury that there was no evidence, either direct or circumstantial, which showed that the plaintiff was of less judgment or discretion than an adult.

During the trial evidence had been given bearing upon the history of the plaintiff’s life, his experience and knowledge as to railroads, switches and frogs, and he testified that he did not know what a frog was, had never noticed that where the tracks came together they made a sort of angle, and that he had no such knowledge of switches or frogs as would induce him .to believe that it was dangerous to walk over them, and other facts were testified to by him bearing upon the question of his intelligence and knowledge in regard to railroads, their tracks and methods of operation, tinder the evidence we cannot hold, as a matter of law, that the court erred in refusing to yield to this request. In Swift v. S. I. R. T. R. R. Co. (123 N. Y., 645), where a girl of fifteen years of age was injured by one of the defendant’s trains, it was held that the degree of care required by the law of a person crossing the track of a railroad depends upon the maturity and capacity of the individual, under all the surrounding circumstances. If there is any doubt as to the facts, or the inferences to be drawn from them, the question must be submitted to the jury.

Having examined all the questions to which our attention has been called by the defendant’s counsel, either in his brief or on the argument, and having foimd no error that would require a reversal, the judgment should be affirmed.

HabdiN, P. J., and MebwiN, J., concurred.

Judgment and order affirmed, with costs.

      Keported, ante, p. 196.


author: MeewiN, J.:

text:
    ISAAC J. SQUIRE, Respondent, v. SILAS S. CARTWRIGHT, as President of the Village of Roxbury, and Others, Appellants.

      Incorporated villages — annual tax for ordinary expenditures — special tax — water rentals — contract with water company — adoption of, by a milage.

    Where the amount fixed by the trustees of an incorporated village for the estimated ordinary expenditutes for the current year, in the detailed statement presented by them at the annual village meeting, provided for by chapter 391 of the Laws of 1870 (“ An act for the incorporation of villages has been fully raised by the annual assessment and tax, it seems that the trustees have no authority to subsequently levy a special tax for other items of ordinary expenditures, unless such items come within the provisions of chapter 304 of the Laws of 1887 (“An act conferring additional powers upon villages ”).
    By force of section 5 of chapter 737 of the Laws of 1873 (“ An act in relation to the creation and formation of water-works companies in towns and villages of the State ”), as amended by chapter 433 of the Laws of 1885, the entire annual rental to be paid by an incorporated village to a water company, under a contract made under that act, must be included in the annual village tax, and no authority is given to the trustees to divide such rental and raise a part in a special tax.
    The fact that some of the items, in a special village tax, levied as one tax, are improperly included therein, renders the whole tax invalid.

      Quaere, whether chapter 504 of the Laws of 1887 (“An act conferring additional power upon villages ”) was intended to include the case of raising money to pay the rental of hydrants to a water company, under an executory contract made by the village trustees, not authorized by the act of 1873, and for which there was no temporary emergency.
    The electors of a village cannot, by a confirmatory resolution at a special election, ratify and validate the insertion, in a special tax previously levied by the village trustees, of items required by statute to be raised, if at all, by the annual tax. The consent to an executory contract made by village trustees with a water company for the erection and supply of hydrants, had been refused at as pecial village election:

      Held, that this did not prevent such contract being adopted at a subsequent special election, and being operative and valid from the date of such adoption, the hydrants provided for by the contract having been in the meantime erected and ^used, and the provisions of the act of 1873, as to the approval by the electors, having been substantially complied with.
    Appeal by the defendants, Silas S. Cartwright, as president, and others, from a judgment, entered in the Delaware county clerk’s office on 6th of August, 1892, upon a decision rendered at the Delaware County Special Term.

      By the judgment, the defendants are forever enjoined and restrained from enforcing the tax warrant issued by the defendants, the president and trustees of the village of Roxbury, on or about the 11th of October, 1890, and from collecting the tax thereby sought to be collected, and from applying any of the moneys collected upon such tax warrant for the purposes specified in the resolution under which the tax was levied.
    The plaintiff is a taxpayer of the village of Roxbury, the president and trustees of the village and the collector are defendants and also the Roxbury Village ~Water Company. The action is brought under the provisions of chapter 673 of the Laws of 1887.
    The resolution, in pursuance of which the tax warrant in question was issued, was passed at an adjourned meeting of the board of trustees held on October 11, 1890, and is as follows':
    “ ResoT/oed, That a tax be levied on the taxable property of the incorporated village of Roxbury, New York, for the sum of six hundred and twenty-one and fifty-four one hundredths dollars ($62 of which $300 is to pay for 500 feet of fire hose; $200 of which is to pay for the first six months water rent, and the balance, $121TB/Tr, is to pay for lighting streets and other necessary expenses.”
    The warrant was soon thereafter delivered to the defendant, the collector of the village, and this action was commenced on or about November 13, 1890.
    The annual meeting of the village for the year 1890 was held on the eighteenth day of March. Thereafter, and on June 7, 1890, the defendants, the president and trustees of the village, caused to be made the annual tax levy in and upon the taxable property and inhabitants of the village for the year 1890, for the sum of $525, which was the full amount proposed to be raised and stated in the detailed statement presented to the annual meeting as required by law. None of the items in the resolution of October eleventh were in this statement. On the 13th of May, 1890, the president and trustees, in behalf of the village, entered into a contract with the Roxbury Village Water Company, by which the village leased from the water company, for the term of five years, the use of ten hydrants for fire purposes only, at an annual rental of $250, payable in semi-annual payments, the hydrants to be put in the streets at such places as the trustees may direct, wherever the water pipes are laid ; the five years to begin and date from the day the hydrants are ready for use, and the rent to commence and accrue from that date. The company, among other things, agreed that the hydrants should be ready for use within one year from the .date of the contract.
    On the 28th of July, 1890, the trustees called a special election of the electors of the village for August 9, 1890, to vote upon a resolution passed by the board of trustees authorizing a contract with the water company for ten additional hydrants, at an annual rental of fifteen dollars each. This election was held, and the resolution defeated.
    On the 15th of August, 1890, the board of trustees unanimously passed a resolution to make a contract with the water company for the rental of eleven additional hydrants for the term of three years, ten of them at an annual rental of fifteen dollars each, and the other free for the first year, and the next two years at the rate0 of twenty dollars a year, the rental to begin when the hydrants were ready for use. This resolution is, by its terms, “ pursuant to the provisions of an act passed by the legislature of New York June 2, 1887.” A contract was accordingly made with the water company, dated August 15, 1890, and by it the rental is made payable semi-annually in advance.
    The item of $200, for rent, in the resolution of October 11,1890, is the rental, under these contracts, for the first six months. The hydrants were ready for use on November 1, 1890, and they were accepted by the trustees, and have since been in use by the village.
    It does not appear when the hose referred to in the resolution of October eleventh was purchased, but it is found that it, and also the additional hydrants, were necessary for the proper protection of the village from fires.
    After this suit was commenced, and on the Uth of September, 1891, in pursuance of notice given by the board of trustees, a special election was held, at which a resolution was passed approving and confirming the act of the board in making the contract of August 15,1890, and authorizing the trustee to carry out the same and levy in one sum, and collect all necessary tax that may be required, from time to time, to fully meet the requirements of that contract; also, a resolution affirming and approving the act of the board in issuing tbe warrant of October W., 1890, and in assessing and levying the amount therein named, and, in the event that the warrant should not be enforced and the full amount thereof collected, authorizing* the trustees to levy in one sum, and collect the whole or any part thereof by relevy. The fact of the passage of these resolutions was set up by supplemental answer.

      Wagner & Fisher, for the appellants.

      G. L. Andrus, for the respondent.
   MeewiN, J.:

The questions in this case are (1), whether the board of trustees had any authority to levy the tax in question at the time it was levied, and if not, then (2), whether the tax has been made valid by any ratification so as to affect the rights of th£ plaintiff.

Of the items making up the amount of the tax, the sum of $300 for hose, and the sum of $121.54 for lighting streets and other necessary expenses, were within the class of ordinary expenditures as defined by the statute applicable to the village. (Chap. 291 of the Laws of 1870, tit. 4, § 2.) The annual meeting of the village was on March 18, 1890, and those items were not in the statement furnished by the trustees to that meeting. The statute (§11, tit. 3 of the act above referred to) required that statement to contain “ the estimated ordinary expenditures of such village for the ensuing year, to meet which taxes may be lawfully raised.” In the assessment which the trustees were required to make within sixty days after the annual meeting (tit. 6, § 1, as amended by chap. 246 of the Laws of 1889) they could include “such sum as they deem necessary, besides funds received and estimated to be received from other sources, to defray the ordinary expenditures of the village for the current year not to exceed the amount fixed for that purpose in the detailed statement of the trustees present at the annual meeting.” The amount which the trustees did fix in their statement was fully raised in the annual assessment and tax thereafter levied. We are shown no authority for the trustees subsequently levying a special tax for other items of ordinary expenditures, unless the case is brought within the provisions of chapter 504 of the Laws of 1887, and that is not claimed with reference to these items. Yery evidently tbe intent of the statute ®f 1870 was to limit the ordinary expenses for the current year to the amounts fixed by the trustees in, their report to the village and to require all that was raised for that purpose to be raised in the annual tax.

Of the item of $200 for water rents, the sum of $125 was for six months’ water rent under the contract of May 13, 1890. It is conceded that this contract is valid under the provisions of section 5 of chapter 737 of the Laws of 1873, as amended by chapter 422 of 1885. It did not run for more than five years, and the amount to be paid did not exceed the sum of. two and one-half mills for every dollar of taxable property per annum. The taxable property was $103,590, and the annual rental was $250. That statute, however, provides that “ the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such village, and shall be levied, assessed and collected in the same manner as other expenses of such village are raised.” Yery evidently the intention was to include the entire annual rental in the annual tax, and there was no authority to the trustees to divide it and raise a part in a special tax.

The balance of the $200 item was six months’ rent, under the contract of August 15, 1890, and its consideration involves the validity of that contract. The defendants seek to justify it under the provisions of chapter 504 of the Laws of 1887. That act provides that, whenever it shall be desired by any village to raise moneys additional to the amount permitted to be raised by its charter or by the general law for the purpose of building a bridge, constructing a sewer, or carrying out some other proper village object, the trustees may call a special election and submit the question of raising such moneys, and if there is a majority vote in favor of the matter, the trustees are authorized to raise the same “ in the same manner as other village taxes are raised and collected,” and the trustees, in anticipation of the tax, may temporarily borrow the amount and use it for the purpose desired. If, however, “ the amount desired to be raised for any of the purposes aforesaid shall not exceed in the aggregate the sum of five hundred dollars,” the trustees, by an unanimous vote, could proceed and raise the amount without submitting the question to the electors. By the second section of the act it is provided that the powers conferred by the act are “ in addition and supplementary to and independent of all other powers possessed by villages, either under any special act or under the general act for the incorporation of villages.”

It is somewhat doubtful whether this act was intended to include a case like the present. There was here no temporary emergency. The moneys were only desired to be raised in order to perform the contract so that the question of the validity of the contract would need to be determined before reaching the benefit of the act. Con-cededly, the contract was not authorized by the act of 1873 above referred to, which regulates the manner in which such contracts should be made. Besides the object sought to be accomplished was the obtaining of the use of the necessary hydrants for the protection of the village, and this included the hydrants of the first contract. It was all executory; none had yet been furnished by the Water Company. The purpose was substantially a single one and in order to ascertain whether the amount exceeded in the aggregate ” the sum of $500, and was, therefore, beyond the power of the trustees, it may, with considerable force, be said that the amount of the first contract should be included. If so, the trustees could not act without submitting the question to the electors. Be this as it may, the fact that the other items were improperly included in the special tax would make the tax invalid. It was but one tax. (See Welty on Assessments, § 232; Smith v. Cramer, 14 Week. Dig., 107; Hassan v. City of Rochester, 67 N. Y., 529.)

The effect of the confirmatory resolutions of September 14, 1891, remains to be considered. One of these assumed to confirm, as an entirety, the tax and warrant of October 11,1890. Still the electors could not, by way of ratification, do any more than they could have done at the time, and they, in October, 1890, had no right to say that certain items of expenditure might be raised by special tax in violation of the provisions of the statute, which required them to be raised, if at all, by the annual tax and after certain formalities. The language of Judge Dboto, in Peterson v. Mayor, etc. (17 N. Y., 449), is applicable. At page 454 he says: a No sort of ratification can make good an act without the scope of the corporate authority. So where the charter or a statute, binding upon the corporation, has committed a class of acts to particular officers or agents, other than the general governing body, or where it has prescribed certain formalities as conditions to tbe performance of any description of corporate business, the proper functionaries must act, and the designated forms must be observed, and generally no act of recognition can supply a defect in these respects.”

Whether the electors could adopt the contract of August 15,1890, is another question. They had refused to authorize it at the election August 9, 1890. After that the hydrants were put in and were ready for use on November first following, and from that time forward to the election in September, 1891, were used by the village and presumptively their necessity was demonstrated. That being the situation, the fact of the refusal in August, 1890, should not prevent the electors from again acting upon the subject in September, 1891. In this view I think that the adoption in September, 1891, should be deemed operative, and that the contract should be treated in force and valid from that time. The statute of 1813, as to the approval by the electors, was substantially complied with. This, however, would not interfere with the rights of the plaintiff. The act of 1873 provided that the amount payable under such a contract should be annually raised as other expenses of the village.

It follows that the Special Term was correct in restraining the collection of the special tax in question. It is, however, suggested by the appellants that the findings and judgment are sufficiently broad to prevent any future enforcement of the contract of August 15, 1890, as adopted in September, 1891. It is not clear that this is so, but to avoid any question upon the subject the judgment should be modified so as to be without prejudice to any proceeding taken as authorized by law to enforce that contract based upon the adoption referred to, and, as modified, affirmed, with costs.

HaediN, P. J. and IVIaetin, J., concurred.

Judgment modified as stated in the opinion, and, as modified, affirmed, with costs.


author: MebwiN, J.:

text:
    HARRIET A. FRANCISCO, Appellant, v. CHARLES A. SMITH, Respondent.

      Covenant not to engage in a certain business — assignable on a transfer of the business — not necessarily abrogated by the temporary stoppage of the business.

    A covenant, by the vendor of a business, good will, property and lease, not to engage in the same business in the same village, Valid as between the parties, is assignable in connection with a sale of the business and property by the cove-nantee, although it does not in form run to assigns.
    One Francisco, on purchasing a business, good will, property and lease of Smith, received from the latter an agreement in writing not to engage in the same business in that town for five years. Thereafter Olark & Wood creditors of Francisco took possession of certain of the property in the store used in the business, under a chattel mortgage and bill of sale from Francisco, and remained in possession and kept the store closed for five days, pending the settlement of Francisco’s debt, and then sold the business property that had come from Smith to Francisco’s wife, who reopened the store and continued tbe business therein under an arrangement with her husband and practically for his benefit.
    Thereafter Smith commenced to carry on the same kind of business, contrary to his covenant with Francisco, who, for a nominal consideration, executed and delivered to his wife an assignment of Smith’s covenant, and of all interest in the business.

      Held, that the five days’ stoppage in the business did not, under the circumstances, abrogate Smith’s covenant.
    That the assignment by Francisco to his wife was, in substance, a transfer of the covenant in connection with a sale of the property and business, and that, therefore, Francisco’s wife was entitled to maintain an action against Smith to restrain him from carrying on business in violation of his covenant.
    Appeal by tbe plaintiff, Harriet A. Francisco, from a judgment entered in tbe Herkimer county clerk’s office on the 24th of February, 1892, upon a decision rendered at the Herkimer County Special Term, dismissing the complaint, with costs.
    The action was brought to restrain the defendant from carrying on the business of a bakery and confectionery store at the village of Little Falls, in violation of an agreement made between him and Frank E. Francisco, the husband of plaintiff, on February 20, 1888. The complaint was dismissed upon the ground that the plaintiff was not in a position to enforce the agreement.

      M. Q. Bronner and A. M. Mills, for the appellant.

      John D. Beohvith, for the respondent.
   MebwiN, J.:

The plaintiff claims as assignee of her husband, and the main question upon this appeal is whether she is in a position to have the benefit of'the covenant between the defendant and her husband. No question is made about the validity of the covenant as between the immediate parties. It is quite clear that it was assignable in connection with a sale of the property and business of the assignor (Diamond Match, Co. v. Roeber, 106 N. Y., 487), although it did not, in form, run to the assigns of the covenantee. (See Hedge, Elliott & Co. v. Lowe, 47 Iowa, 137, Pemberton v. Vaughan, 59 E. C. L., 87.)

In order to determine whether the plaintiff has become the owner of the covenant in connection with a sale of the property and business, it will be necessary to refer to the facts, which are substantially undisputed.

On and prior to February 20,1888, the defendant was carrying on a bakery and confectionery shop at Little Falls. At that date lie made an agreement in writing with Frank E. Francisco, the husband of the plaintiff, by which, in consideration of the payment of $1,200} he sold to Francisco his bakery and shop, with the good will of the business, and certain property described in a bill of sale made that day, and assigned the lease of the store where he carried on the business. In this agreement there was the following provision: “ Smith agrees and binds hiinsdlf that he will not, for the period of five years from March 1,1888, or during that time, engage or become interested in the business of carrying on a bakery or confectionery store, or in the business like the one hereby sold out, in the village of Little Falls, or in the immediate neighborhood.” Possession was taken by Francisco, under the agreement, on March 1, 1888, and the consideration was paid, and thereupon he entered upon the business. This he carried on up to about the 10th of November, 1889, in the same way and manner, and at the same places that defendant had previously carried it on, and used therein substantially the same fixtures and appliances. In February, 1889, in order to secure Clark & "Wood of Fort Plain for money borrowed and past indebtedness, he gave to them a chattel mortgage for about $1,300, on certain property connected with the business, and after the maturity of the mortgage, and on November 9, 1889, he. gave them a bill of sale of the property mentioned in tlie mortgage, and on stock and goods on band, and property connected with the business. On the next day they, by virtue of the chattel mortgage and bill of sale, took possession of the property and store, closed the store and took part of the property to Fort Plain. 'They remained in possession, and kept the store closed until November 15, 1889, doing no business whatever-At that date the plaintiff, through her husband, as her agent, purchased of Clark & "Wood all their interest in the chattel mortgage and the property covered by the bill of sale, and paid them in full for their claim against the husband, less certain portions of the property kept by Clark & Wood and applied upon the debt. None of the property so kept was part of the property purchased of ■ defendant. Prior to this purchase by plaintiff, it was verbally agreed between plaintiff and her husband, that plaintiff woiild furnish the money and make the purchase, and that the husband should take charge thereof, and of her business connected therewith, and that the same should be carried on in plaintiff’s name, and that the family, consisting of the husband, wife and child, should be supported out of the proceeds of the business, the husband being a practical baker and the plaintiff not. This arrangement was carried out. The plaintiff took immediate possession of the. store and bakery, and the tools, fixtures and appliances therein contained, reopened the business, selling the same kind of goods, and to substantially the same customers as the husband had been previously doing, and the business was carried on down to the time of the commencement of this action, in the same way and in the same places and with the same tools and fixtures as previously by the husband and by the defendant, the husband all the time being the manager.

About December 15,1890, the defendant commenced to carry on another bakery business contrary to the provisions of his agreement, and so continued to the commencement of this action on May 30, 1891. On December 18, 1890, Frank E. Francisco notified the defendant that he was violating his contract and required him to discontinue the business he had started upon. On the 25th of May, 1891, Frank E., for a nominal consideration, executed and delivered to plaintiff an assignment of the agreement with defendant and indorsed thereon as follows :

For value received I hereby sell, assign, transfer and set over tO' Harriet A. Francisco all my right, title and interest in and to the within contract, and in and to the covenants therein contained,, together with all claims and demands which I have against Charles A. Smith for any and all breaches thereof; also all my right, title and interest in and to the business and the good will thereof formerly owned and carried on by me which I have not previously sold, and of ■which you were not already the owner, and mentioned and referred to in the annexed instrument, together with all property and property rights therewith connected.”

Upon the same day the plaintiff notified defendant of her ownership of the contract and the business and called on him to discontinue his business. The plaintiff’s husband, as the court below finds,, did not transfer or attempt to transfer to plaintiff the business which he was conducting and which he purchased of defendant, or the good will thereof, or the lease of his place of business, or the contract, between himself and defendant, or any of the covenants therein until the assignment of May 25,1891. It would also seem from the evidence that the tools and fixtures were not transferred until then.

The fact that the assignment to plaintiff May 25, 1891, was for only a nominal consideration, or was, in fact, without consideration, does not, in itself, aid the defendant. (Sheridan v. Mayor, 68 N. Y., 30.) It was valid as against the assignor. The material question is, whether the plaintiff became the owner of the covenant under such circumstances as will permit her to enforce it within the rule laid down in 106 New York, above referred to.

By reason of the transaction with Clark & Wood, and of the assignment from her husband, the plaintiff has become the entire owner of the property and business. She was not such without the-assignment. The lease, the good will and the contract were not transferred to Clark & Wood, nor apparently the tools and fixtures. Under an express arrangement with the husband, and practically for his benefit, Clark & Wood were bought out. After five days’ stoppage the same business was reopened and continued in the same1 place in the same manner, with the same fixtures, and supplying the same customers, and was, in reality, for the benefit of the same pai’ties. The five days’ stoppage of the business did not bill the five years’ covenant. It was only temporary, pending the settlem er.v of the husband’s debt. The business was renewed in the name of the wife, with the assent of the husband, under his management and for his benefit. And when finally, in order to complete the title of the wife to the whole, the assignment to her was made by the husband of whatever interest he still held, including his contract with defendant, it was, in substance, a transfer of the contract in connection with a sale of the property and business of the assignor. We think it should have been so held by the trial court. If so, the plaintiff was in a position to maintain the action.

It follows that the judgment must be reversed.

Haediít, P. J., and MaetiN, J., concurred.

Judgment reversed on the law and the facts and a new trial ordered, costs to abide the event.