text:
    Byron H. Sykes, Respondent, v. Abram Temple, Appellant.

      Liability on c, note signed by another as agent —payment of subsequent notes similarly signed, as evidence of liability.

    On the trial of an action brought against one Temple as the maker or principal of a note signed “A. L. Fogg, Agent,” in which the question was whether the note was or was not the defendant’s note, the plaintiff was permitted to show that the defendant subsequent to the giving of the note in suit paid other notes similarly signed. The fact of the payment of subsequent notes and the defendant’s liability thereon was conceded.

      Held, that for the purpose of showing that a sale, to the defendant, of a stock of goods which formed the consideration of the note in suit was an actual transfer, and that consequently it was probable that the note given for the purchase price was the defendant’s, it was competent to show that the defendant, after his purchase of said goods, through Fogg, conducted the business and paid notes for debts contracted by “A. L. Fogg, Agent; ” and that, as the defendant’s liability upon the subsequent notes was conceded, the reception of the evidence could produce no injury to him.
    An error, if any, in the admission of evidence of a conversation in relation to undisputed facts in the case, held, not material and, hence, not a ground for reversal.
    Appeal by tbe defendant, Abram Temple, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of "Washington county on tbe 14tb day of July, 1892, upon tbe report of a referee.
    The action was brought to recover money which the plaintiff bad been compelled to pay as indorser of a note, which was signed by F. W. Fogg in tbe name of “A. L. Fogg, Agent/’ and as to which the plaintiff claimed that the defendant was the principal or maker.

      J. Scmford Potter, for the appellant.

      Jurden E. Seeley, for the respondent.
   Putnam, J.:

We are satisfied, after a careful examination of the evidence, that the conclusion reached by the referee on the question of fact presented to him cannot be disturbed.

Plaintiff testified that before indorsing the note described in the complaint, defendant said he was the principal on the note and the rest, were to indorse it. The referee believed this statement as he bad the right to do. The conceded facts of the case tend to show the truth of plaintiff’s testimony. The note was given for the purchase price of a stock of goods transferred by Getty to defendant and which goods were used in the business that defendant concedes he afterwards carried on as principal.

It was, therefore, probable that the note made to pay for the goods so transferred to defendant was made by him. It follows that the judgment should be affirmed, on the opinion of the referee, unless some exception taken on the trial requires a reversal.

It is claimed that the referee erred in receiving testimony showing that defendant subsequent to the giving of the note in question paid other notes similarly signed “A. L. Fogg, Agent.” That evidence of such similar transactions, they being subsequent to said note, should not have been received.

The question in the ease was whether the note signed “A. L. Fogg, Agent,” on which defendant was sought to be charged, was or was not defendant’s note. As bearing on that disputed question it was not improper to receive evidence showing that the consideration of the note was a stock of goods sold to defendant, and that such transfer was actual and not colorable. To that end it was competent to show that defendant, after his purchase of said stock of goods through Fogg, conducted the business and paid debts contracted by the latter. The payment by defendant of notes and accounts contracted by “A. L. Fogg, Agent,” tended to show that defendant carried on the business, and hence that his purchase of the goods was actual and not colorable, and this fact rendered it probable that the note given for the purchase price of the goods was his. But the fact of the payment of subsequent notes made by “A. L. Fogg, Agent,” and defendant’s liability thereon, was conceded on the trial. The defendant testified (omitting such portions of his testimony as were objected to) as follows, viz.: “ I consented to become the principal in the business, and from that time until I sold out the store I was principal. * * * Fogg carried on the business, I being the principal, for about two years, and during that time Fogg incurred liabilities for goods. * * * In the name of A. L. Fogg, Agent. * * * I supposed I was liable for them. These liabilities were part in notes signed, £A. L. Fogg, Agent,’ and part in accounts tliat lie bad incurred in that name.” Thus the fact of the liabilities of the defendant upon subsequent notes was conceded on the trial, and the reception of the evidence objected to by defendant could produce no injury to him.

It is also claimed that the referee erred in overruling objections to testimony of the witness Baker, as to conversations with Temple and Goodman. We think the testimony of the witness as to conversations with Temple was properly received as tending to impeach Temple. The conversation with Goodman detailed by the witness only related to the undisputed fact of the agreement that defendant should be principal of the store, and as to the bill of sale being made to him. Hence, the error, if any, was not material and is not a ground for reversal. ( Wright v. Reusens, 133 N. Y. 306.)

The judgment should be affirmed, with costs.

HekeioK, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Putnam, J.:

license: Public Domain

text:
    Maria Ten Eyck and Another, Appellants, v. Catharine A. Whitbeck and Others, Respondents.

      Case remitted by the Cowrt of Appeals for review upon the facts — effect of a former examination of the evidence — change in members of the General Term.

    In an action of ejectment, all parties claimed title tlirougli the same original owner, the plaintiff under deeds executed before the defendant’s deed, but recorded later; the defendant claimed that the plaintiff’s deeds were never delivered, and were obtained by fraud, and also that, by reason of not being recorded, they were invalid as against the defendant, a purchaser in good faith and for value; the jury rendered a verdict for the defendant, and the plaintiff appealed, the General Term held that the evidence was insufficient to show that the plaintiff’s deeds were not delivered, or were obtained by fraud, but held, as matter of law, that those deeds were invalid as against the defendant under the Recording Act, and affirmed the judgment on the verdict on that ground. The plaintiff then appealed to the Court of Appeals, which court decided that the defendant was not shown to be a purchaser for a valuable consideration so as to avoid the effect of the plaintiff’s prior conveyance, under the Recording Act, and remitted the case to the General Term for a review on the facts.

      Held, that while, in view of its former decision on the same evidence as now before it, the General Term, although its members had changed, was not called upon to again discuss the case, yet, on a re-examination, it was confirmed in its former opinion that the evidence was not sufficient to justify the jury in finding that the plaintiff’s deeds were obtained by fraud, and, therefore, that a new tiial should be granted on the ground of the trial judge’s refusal to charge, as requested by the plaintiff, that the evidence on that question was insufficient.
    Case remitted by tbe Court of Appeals to the General Term for a review upon the facts.
    The opinion of the Court of Appeals is reported 135 N. Y. 40, and ends thus:
    “ Whether there was sufficient evidence to go to the jury upon the issue of fraud and undue influence in the execution of the deeds under which the plaintiffs claim, or of their non-delivery, we cannot now consider. The General Term has not yet passed upon that question.
    “ The order appealed from must be reversed and the case remitted to the General Term for a review upon the facts, with costs to abide the event of the action.”
    Judgment was rendered for the defendants in the trial court, from which the plaintiffs appealed to the General Term of the Supreme Court, which affirmed the judgment, with costs. The order of affirmance provided that if the plaintiffs desired, the judgment might state that but for the recording acts judgment would have been reversed. An appeal was taken by the plaintiffs to the Court of Appeals from this order and judgment. The Court of Appeals reversed the order of the General Term and remitted the case to the General Term for a review upon the facts, with costs to abide the event.

      W. G. McHarg and J. H. Glwte, for the appellants.

      G. M. Barlow and Matthew Hale, for the respondents.
   Putnam, J.:

The complaint states a cause of action in ejectment. A denial of its material allegations was contained in the answer, and the issues thus formed were brought to trial at the Albany Circuit in 1889.

One Peter W. Ten Eyck was the original owner of the farm which is the subject of the action. On the 21st day of September, 1871, for the purpose of transferring it to his wife, Elizabeth, he executed a deed thereof to one John Y. Carroll for a nominal consideration, the latter, on the same day, transferring said premises to said Elizabeth Ten Eyck. Said Elizabeth, on January 9, 1883, conveyed said real estate to plaintiffs. Neither of said deeds were recorded until 1883.

The defendants claim that the title to said premises is in the defendant, Catharine A. Witbeck, under a deed from said Peter W. Ten Eyck, dated July 7, 1877, and recorded December 5,1879.

The jury found for the defendants, and upon the verdict a judgment was entered against the plaintiffs for costs. The plaintiffs appealed, and the General Term affirmed the judgment. Defendants on the trial and on said appeal claimed that the deeds under which plaintiffs claim, not being recorded, were invalid as against the defendant Catharine, a purchaser in good faith and for value; also that the evidence established the fact that the deeds from Peter W. Ten Eyck to Carroll, and from the latter to Elizabeth TenEyck, were not in fact delivered; and that said transfers from Peter W. Ten Eyck to his wife, and from the latter to plaintiffs, were obtained by fraud and undue influence.

The case came before this General Term in 1891, the questions raised by said claim of defendants being before the court for decision. The General Term held that the evidence on the trial was insufficient to show that the deeds transferring the premises in question from Peter to his wife were not delivered, or to show fraud or undue influence in the conveyances under which plaintiffs claim title, but decided as matter of law that said conveyances were invalid as against defendants under the Recording Act. In the opinion delivered the following language occurs :

“We have examined all this evidence, and although the learned judge submitted the questions of fact thereby suggested to the jury, and the jury thereupon found in favor of the defendants, we are constrained to say that in our opinion the evidence is utterly insufficient in that respect to sustain the verdict. It may be there is a scintilla of evidence in support of the surmise that Peter "W". Ten Eyck was of unsound mind, that he was unduly influenced by his wife, that he never delivered the deed to her, and also that Elizabeth never delivered the deed to the plaintiffs, but of evidence substantially tending to establish either of those propositions we find practically none.”

The judgment which was directed by the justices sitting at said term contains the following clause: “ It is hereby stated as part of said judgment of affirmance that but for the Recording Act the said judgment so appealed from would have been reversed.”

The Court of Appeals, however, held that defendant, Catharine A. Witbeck, was not shown to be a purchaser for a valuable consideration so as to avoid the effect of plaintiffs’ prior conveyance under the Recording Act, and thereupon sent the case back for a review on the facts.

As will be seen by the foregoing statement, the questions now submitted to us were properly before a former General Term, and were there passed upon'and decided. This court having, after a deliberate and careful examination of the evidence, on the same case now before it, determined in favor of appellants the questions now again submitted, although its members have changed, could hardly be expected to reach a different conclusion at this time. If we are not concluded by the former determination, yet the opinion of the learned and experienced members of the former General Term may be deemed an authority, and entitled to be respected as such by us.

Under the circumstances, I do not think we are called upon to again discuss this case. I have, however, read and considered the evidence and the briefs of counsel, and I am tinable to discover in the case any testimony whatever showing or tending to show' mental incapacity on the part of Peter ~W. Ten Eyck, or undue influence or fraud in obtaining the deeds in question. Plaintiff Slingerland, is not proved to have taken any part in obtaining the transfer of the land from Peter ~W. Ten Eyck to his wife. For all that appears in the case such transfer was the uninfluenced act of the grantor in the carrying out of his previous intention, which he had communicated to the witness Callanan. It was not shown that Slingerland even knew of the transfer, and there is no proof, direct or indirect, that any person exercised any influence over the grantor in the matter.

Nor is there any satisfactory evidence indicating fraud or undue influence on the part of Slingerland or anyone else in obtaining the deed from Elizabeth Ten Eyck to the plaintiff. The declarations of Slingerland that he intended to or should have a deed of the land in question do not indicate that he intended to obtain one by fraud or undue influence. It appears that he did not receive such a deed as he desired. If there was any fraud or undue influence it was for the defendants to show it. I think they failed to do so.

The question whether there was sufficient testimony on the trial, tending to rebut the presumptive evidence produced of the delivery of the deeds which transferred the title from Peter ~W. Ten Eyck to his wife, to justify a submission of the question of delivery,to the jury is more doubtful. There was evidence that after the alleged transfer the grantor, Peter W. Ten Eyck, with the knowledge and assent of Elizabeth, his wife, leased the premises in suit in his own name; there was also testimony of declarations of Mrs. Ten Eyck inconsistent with the fact of her ownership of the property.

But conceding that the trial judge might properly have submitted to the jury the question of the delivery of the said deeds, there not being, as above suggested, any competent evidence tending to show mental incapacity on the part of Peter ~W. Ten Eyck, or fraud and undue influence in obtaining such deeds, the judge should have withdrawn those matters from the jury. He was requested to charge that there is not sufficient evidence to justify the jury in finding that the deeds in question were executed by, through or under fraud or undue influence. Also that the evidence is not sufficient to justify the jury in finding that the said Peter 'W. Ten Eyck was not at the time of executing said deeds of sound mind and did not fully understand what he was doing and its effect. He declined to so charge and exceptions were duly taken.

I think plaintiff was entitled to have the jury instructed as requested, and on account of the refusal of the judge to so charge a new trial is necessary.

It follows that the judgment should be reversed and a new trial granted, costs to abide event.

Herrick, J., concurred; Mayham, P. J., not acting.

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


author: Herrick, J.: Putnam, J.:

text:
    James W. Farrell, Respondent, v. Seth Hill, Appellant.

      Claim of title to real property arising on the pleadings — costs.
    Where a defendant in an action in the Supreme Court pleads title to real property in such form that, under section 523 of the Code of Civil Procedure, the plea is to he deemed denied by the plaintiff, a claim of title to real property arises upon the pleadings and, by force of subdivision 1 of section 3228 of the Code of Civil Procedure, the plaintiff, if he recovers any judgment, will he entitled to costs, without any certificate and although no evidence on the question of title was offered on the trial.
    Appeal by tlie defendant, Setb Hill, from an order of the Supreme Court made at the Saratoga Special Term and entered in the office of the clerk of Saratoga county on the 16th day of December, 1892, vacating a taxation of costs in favor of the defendant, and ordering a retaxation of costs and directing the clerk, on such retaxation, to allow costs to the plaintiff.

      Miner c§ Hill, for the appellant.

      Charles M. Damson, for the respondent.
   Herrick, J.:

I think this case should be affirmed, with costs and disbursements, on opinion of Special Term.

Mayham, P. J., concurred; Putnam, J., not acting.

Ordered affirmed on opinion of Special Term.

The following is the Special Term opinion:

Putnam, J.:

The plaintiff in his complaint alleged that on March 25, 1892, he was duly possessed and in occupation of the house and premises described, and that defendant wrongfully and unlawfully trespassed and tore up carpets and oilcloths, and removed chairs and tables, and otherwise unlawfully and wrongfully ransacked and despoiled said house.

Defendant, for answer (1) denied the material allegations of the complaint, and (2) set up that one Seymour Colson and wife were the owners in fee and possessed of the said premises, and entitled to the right of immediate and actual possession thereto, and were removing tlieir furniture to said dwelling house, as they had a lawful right to do, and finding in said house some furniture, goods and chattels unlawfully therein, necessarily and carefully removed them from said house, and that defendant, at the request of said Colson, assisted him in such removal, as he had a lawful right to do.

Plaintiff on the trial obtained a verdict for five dollars, which, by order of the court, was increased to fifteen dollars, by virtue of the provisions of section 1669 of the Civil Code.

Before the clerk on the taxation of the costs, each party claimed to recover of the other the costs of the action. The clerk awarded the costs to the defendant. This motion is made to review the action of the clerk, plaintiff insisting that he is entitled to recover the costs of the action, although the recovery was less than fifty dollars, under the provisions of subdivision 1 of section 3228 of the Civil Code, on the ground that a claim of title to real property ■ arose upon the pleadings. No certificate is produced that a claim of title to real property in fact, arose upon the trial.

If, under the provisions of the Code, a reply were required, where the answer set up an affirmative defense not constituting a counterclaim, and the plaintiff in this case replying to the allegations contained in the answer,- as to the title of Seymour Colson and wife' to the premises in question, had denied such allegation, it would not be doubted but that a claim of title to real property arose on the pleadings. (Dinehart v. Wells, 2 Barb. 432.)

But, inasmuch as the answer did not contain a counterclaim, no reply was required, and the allegation setting up title in the Colsons is to be deemed controverted by the plaintiff. (§ 522, Civil Code.)

To the allegation of the defendant asserting the title of. Seymour Colson and wife to the premises in question, the statute interposes a denial on the part of the plaintiff. The statute created a legal issue as to the Colson title.

Coming down to the trial on such pleadings, defendant would be compelled to prove his allegation of title just the same as if a reply were served denying such allegation. I think, therefore, where a defendant pleads title, which by statute is deemed denied by the plaintiff, a claim of title to real property arises upon the pleadings. The question raised in this ease was settled in this district long since in the case of Lillis v. O’Conner (8 Hun, 280). The action was assault and battery, and the defense was (1) general denial, and (2) son assault de mesne; (3) justification in defense of defendant’s possession of his own property. Justice Bocices gave the opinion of the General Term, and referring to Dinehart v. Wells (supra), remarked: “ Under the Code no reply to the defendant’s answer was admissible (Code, § 153), and the third defense was to be deemed controverted by the adverse party as upon denial or avoidance.” (§ 168.) The two cases are, therefore, precisely alike as regards the pleading. Thus, in the case in hand, according to the decision in Dinehart v. Wells, and in legal logic, a claim of title to real property -was raised on the pleadings. The defendant tendered the issue by his answer; a reply was inadmissible; but the new matter interposed as a defense was by the Code to be deemed controverted as upon direct denial or avoidance. (§ 168.)

The above authority, I think, has not been questioned, but is referred to in Lynk v. Weaver (128 N. Y. 177), and must be deemed to settle the law in accordance with the views above suggested. The case of Lynk v. Weaver (supra), referred to by counsel for defendant, is not parallel to the case before us. In that case the plaintiff in his complaint claimed title to the premises described. The answer contained no denial of his title, and the court held that “where, viewing all the pleadings, there is no issue or disjiute about the title, in no legal sense can it be said that a claim of title arises upon the pleadings. The phrase has reference to a case where both parties in the pleadings claim the title, or where one claims it and the other disputes it.”

In the case before us the defendant jileaded title in the Colsons. The allegation is deemed denied by the plaintiff, thus raising a direct issue upon the claim of title.

Of course, under the provisions of subdivision 1, section 3228, Civil Code, where an issue as to a claim of title to real estate is thus raised by the pleadings, the plaintiff recovering am,y judgment is entitled to costs without any certificate, and although in fact no evidence was offered on the trial on the question of title.

An order should be entered directing retaxation of costs, and that the clerk on such retaxation, allow to plaintiff the costs of the action, with ten dollars costs of this motion.


text:
    John Bowe, as County Treasurer of the County of Albany, Respondent, v. Charles M. Jenkins, Appellant.

      Personal tax — different residences — principal place of business — jurisdiction of y the City Court of Albany.

    The provision of chapter 92 of the Laws of 1850, re-enacted in section 2 of chapter 176 of the Laws of 1851, to the effect that when a person has residences in different towns, his residence, for the purposes of taxation upon his personal estate, shall be deemed to be in the town where his principal business shall have been transacted, was not repealed or superseded by chapter 392 of the Laws of 1883.
    The provision of said acts of 1850 and 1851, in reference to residences in different towns during the tax year, does not intend only “successive” residences.
    When a person has two residences in the same county, one in a town, and the other in a city in which his principal business is carried on, he is properly taxed for personal estate in the city ward in which he resided when the assessment was made.
    A tax on personal estate, properly assessed in the city of Albany, is a debt “ on contract implied,” and the City Court of Albany has jurisdiction of an action for the recovery of it.
    Appeal by the defendant, diaries M. Jenkins, from a judgment of the County Court of Albany county in favor of the plaintiff,, entered in the office of the clerk of that county on the 28th day of July,. 1892, upon the report of a referee upon a new trial had on the appeal of the defendant from a judgment of the City Court of Albany.
    The action, which was commenced in the City Court of Albany, was brought to recover a personal tax levied against the defendant as a resident of the city of Albany in the year 1889.
    The ascertainment of the residence of the defendant for the purposes of taxation on his personal estate, was claimed by the plaintiff to be controlled by the amendment to section 5, title 2, article 1, chapter 13, part 1 of the Revised Statutes, effected by the provisions of chapter 92 of the Laws of 1850, re-enacted in section 2 of chapter 116 of the Laws of 1851.

      James F. Tracey, for the appellant.

      Marie Go7m, for the respondent. '
   Putnam, J.:

~We are of the opinion that the evidence was sufficient to justify the finding of the learned referee that defendant, from 1882 down to and including 1889 (assuming lie did not reside in Albany only), had a residence in the city of Albany, and one also in the town of Hensselaerville, Albany county, and that his principal place of business was in the city of Albany. He was, therefore, properly taxed in 1889 for personal estate in that city, under the provisions of the act of 1850 (Chap. 92), 1851 (Chap. 176, § 2). -It is suggested by defendant that said act was repealed or superseded by chapter 392 of the Laws of 1883. The latter act does not in terms supersede the former statute, nor is it inconsistent therewith. The act of 1883 was not intended to apply to a case like this, where one has two residences, and each in different towns. That a person may have two residences although but one domicile, under the act of 1850, 1851, cannot be doubted. (Bell v. Pierce, 51 N. Y. 12; Bartlett v. The Mayor, 5 Sandf. 44.)

We do not understand the act of 1850,1851, where one resides in different towns during the year for which he is taxed, as intending only “ successive ” residences, as claimed by defendant. The language of the act cannot be so construed properly.

The defendant, being taxable in Albany, where his principal business was carried on, was in that city properly taxed in the ward where he resided. (Wilcox v. The City of Rochester, 129 N. Y. 247.)

We agree with the view of the learned referee that the tax properly assessed against defendant in the city of Albany in 1889 may be deemed a debt on contract implied,” and hence that the City Court of Albany had jurisdiction of the action.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concurred.

Judgment affirmed, with costs.


text:
    Aaron R. Stevens and Others, Respondents, v. The Central National Bank of Boston and Others, Appellants, Impleaded, etc.

      Power of a State court to enjoin parties from pi'oceeding in. a Federal court.

    In exceptional cases and where equity demands it, a State court of equity may enjoin parties to an action before it from taking any proceedings under a judgment in a Federal court.
    When, in an action in the nature of a bill of review, the Supreme Court of the State of New York vacates as fraudulent the judgment and proceedings in a former action brought in that court to obtain the sale of. railroad property under foreclosure, and directs a resale of the property, it may perpetually enjoin parties to the action of review from proceeding with a sale of the railroad property under a decree obtained by them in a Federal court, in an action begun in the Supreme Court of the State of New York, and removed into the -Federal court because of the citizenship of parties, for the satisfaction of receiver’s certificates held by them, issued in such former action and rendered void by the vacation of the judgment and proceedings therein, where such injunction raises no conflict with the Federal court.
    Appeal by the defendants, the Central National Bank of Boston, ■and others, holders of receiver’s certificates, from an order made at the Saratoga Special Term, and entered in the office of the clerk of Rensselaer county on the 14th day of January, 1892, denying their motion to strike out the clause in the decision of the Special Term in this action directing judgment, perpetually enjoining them from proceeding with a sale under a decree obtained in the United States Circuit Court for the northern district of New York.
    The action was brought by the plaintiff Stevens, a holder of bonds ■of the Lebanon Springs Railroad Company, in behalf of himself and others similarly situated, to procure the sale of the Lebanon ■Springs railroad, under judgments of foreclosure and sale procured by the defendant, the Union Trust Company, in December, 1872, as trustee for the holders of the Lebanon Springs Railroad Company’s first mortgage bonds, and of certain other bonds. The complaint is also in the nature of a bill of review of a judgment obtained in an action somewhat similar to this brought by one Marvin Sackett against Russell C. Root and others in this court in 1880, the plaintiff in this action asking relief against that action and proceedings therein as fraudulent, and praying to foreclose all liens, real or apparent, upon the railroad, and to establish the priority of thé liens asserted by the plaintiff against all the liens allowed and created in the Sackett suit.
    The judgment of sale, the execution of which was enjoined in the present action, was obtained in a suit brought by the Central National Bank of- Boston, as the holder of receiver’s certificates amounting to $250,0Ú0, on behalf of itself and other holders of receiver’s certificates, in this court, against the defendants Foster and Hazard and others. That action was duly removed into the Circuit Court of the United States, and a decree was made therein March, 1887, which directed a sale of the railroad property and premises and directed that Hazard and Foster should pay any deficiency that might arise on such sale, and that the plaintiffs in that suit and the other certificate holders should have execution therefor.
    All persons who could claim under either the Sackett judgment or liens created since the foreclosure judgments are made parties defendant in this action. Among the answers interposed, were those of the present appellants, holders of receiver’s certificates created in the Sackett suit, alleging that the plaintiffs are bound by that suit, and. by the decree in the United States Circuit Court.
    The first trial of the action resulted in a dismissal of the complaint, but the General Term, on appeal, reversed the judgment and ordered a new trial, with an opinion reported 57 Hun, 499, in which the facts are fully stated. The new trial resulted in a judgment for-the plaintiffs, in accordance with the views expressed by the General Term and their judgment is affirmed at the present term. (See-opinion in “ Cases Not Reported,” Third Department, May Term, 1893, in this volume.)

      H. W. Paige, for the appellants.

      Matthew Hale, for the respondents.
   Herrick, J.:

This is an appeal from an order denying a motion to strike out the clause in the decision in the above-entitled action, directing-judgment perpetually enjoining the sale, in the suits by the Central National Bank of Boston et al. against defendants Hazard, Foster et al., in the United States Circuit Court, and staying all their proceedings under the judgments rendered in said actions.

The learned justice before whom such motion was made has given his reasons for denying the same in an elaborate opinion, in which I concur. I can see no reason for writing another one.

The order appealed from should be affirmed, with costs and disbursements.

Mayham, P. J., concurred ; Putnam, J., not acting.

Order affirmed, with costs and disbursements.

The opinion of the justice before whom the motion was made is as follows:

Putnam, J.:

The facts on the second trial being substantially the same as on the first, in directing judgment herein, I based my conclusion on the holding of the General Term. If the question in the case had not already been passed upon by the appellate tribunal, I might have reached a different conclusion. But, of course, the opinion of the General Term on the same state of facts concluded me.

The effect of my decision, therefore, was to carry out the judgment of the General Term, and, hence, to determine, in reference to the “ Sackett ” suit that “ such an action, thus instituted, controlled and resulting cannot be upheld. It was not a representative suit in fact; if it was such in form and regularity then it is effectually impeached for fraud. The plaintiffs are * * * entitled to relief substantially the same as if the Sackett action had never existed. They were in no sense parties to that action, and, therefore, their rights remain untouched. It is said they are bound by the receiver’s certificates which were declared to be a first lien upon the property. This cannot be so without a violation of constitutional protection. The court acquires jurisdiction of the parties, and of the subject-matter before it, but, from the nature of the case, can only acquire jurisdiction of so much of the subject-matter as all the parties before it hold. * * ' * Those who take receiver’s certificates must be deemed to have taken them subject to the rights of parties who have prior liens upon the property and who have not, but should have been brought before the court. * * 'x' The ■Central National Bank of Boston, a large holder of these certificates, as plaintiff, for itself, and all other certificate holders, brought an action against Hazard and Foster, the purchasers of the railroad, upon the sale of the Sackett suit, and against the New York, Rutland and„ Montreal Railway Company, to which company Hazard and Foster conveyed the road, and against the American Loan and Trust Company, trustees of mortgage bonds issued by said railroad company. Judgment was obtained against said defendants, establishing the bank’s ownership of its certificates and their lien upon the railway, and providing for the sale of the railway to pay the plaintiff and such others as should come in and establish their ownership. Such a judgment is good against the defendants in that action. They derive title to the railroad under the Sackett sale which preferred the certificates. It is not binding upon the plaintiffs.”

In pursuance of the decision of the appellate court I, therefore, found that the plaintiffs were entitled to a judgment providing that the Sackett judgment and all the proceedings in that action, including the sale and the deed by the referee to the defendants, Hazard and Foster, be reviewed and reversed, and all the property and franchises described in the complaint together with all the interest therein of all the parties to this suit and all the Lebanon Springs a/nd LLa/rlem Extension bondholders be sold for the purposes above stated. Also holding that the holders of the certificates issued (in the Sackett suit) by the receiver, Van Valkenburgh, are entitled to such proceeds of the sale as shall belong to those Lebanon Springs bonds which were in the trial and judgment in the Sackett suit represented.

In this discussion we must assume that my conclusions and findings, based as they are on the authority of the appellate court as to the Sackett suit, are correct, and that the Sackett judgment and sale thereunder was properly set aside.

Having reached the conclusion then that the Sackett suit was fraudulent and not a representative action, and that the sale thereunder should be vacated and set aside, and that the certificates issued in said action are, as to the plaintiffs, invalid and not enforcible, and that there must be a new sale of the property under the judgment in this action, it remains to be seen whether the defendant, the Central National Bank of Boston, should be allowed to proceed with the sale under the certificates issued in the Sackett suit under the judgment in the Circuit Court of the Hnited States.

For what purpose ? The sale under the judgment in that action could convey no title. It must be subject to and over-reached by the sale directed by the judgment herein. Yet, being made subsequent to said last-named judgment the effect would necessarily be to cast a cloud upon the title and to embarrass the subsequent sale to be made in this action.

The judgment in the United States court cannot be interfered with as far as it determines the rights of the Central National Bank to recover the proceeds of the bonds represented in the Sackett suit as against the defendants in the Federal action.

On the sale in this action the bank will receive the proceeds of fhe bonds represented in the Sackett suit which would go otherwise to the bondholders. On the sale so to be made it is to be presumed that the property will bring as high a price, if not higher, as on the sale under the United States judgment; and hence defendants will in fact receive the same proceeds as under the sale in the Federal action. "Why, then, should the property be sold in that action, such sale being necessarily over-reached by the sale to be made herein and conveying no title ?

What would be the effect of such a sale ? The General Term holds that the certificates are void as to plaintiffs and all bondholders not represented in the Sackett suit. That the judgment in the Federal action is not binding on such bondholders. That plaintiffs are entitled to relief the same as if the Sackett suit had never existed — that is, a judgment of foreclosure1 and sale under which a title to the road can be given. What, then, would bé the effect of a sale under the Federal judgment in favor of the bank ?' As stated such a sale would not give any title to the property. At the most it would convey to the purchasers the interest of the certificate holders who have acquired the interest of the bondholders represented in and assenting to the Sackett action and who are also represented in the Federal action. But what bondholders ? As held by the General Term there must be an identification of those bondholders who held aloof from the Sackett suit, for such are not bound by any proceedings therein and are entitled to the benefit of this action. Therefore, if there is a sale under the Federal judgment its only effect will be to transfer to the purchasers the. interest of the certificate holders representing the bondholders who. were represented in the Sackett action to the proceeds of tlie sale in this action. But such interest is already preserved and taken care of by the judgment herein. Under the judgment entered in this action under the direction of the appellate court, there can be no sale under the Federal judgment, that is, a sale that will transfer any title to the purchasers.

For the above and various other reasons not necessary to be stated, I think that the clause in the judgment restraining the sale under the Federal judgment should be retained. If the bank has a claim against Hazard and Foster, the purchasers on the sale under the Sackett judgment, for any deficiency' — after the judgment in this action setting aside the Sackett judgment and sale — I think they may recover such deficiency as well if the property is sold pursuant to the judgment herein, as if sold under the Federal judgment.

It is. suggested, however, that the State court cannot enjoin parties from proceeding in the United States court in an action or under judgment therein.

There are statements in various authorities that would seem to sustain that position.

Thus, in 2 Story’s Equity Jurisprudence, section 900, the author says, referring to the power of the Chancery Court to restrain parties within its jurisdiction from proceeding in foreign courts in certain cases: There is one exception to this doctrine which has long been recognized in America, and that is, that the State courts cannot enjoin proceedings in the courts of the United States, nor the latter in the former courts.”

Chancellor "Walworth also, in Mead v. Merritt (2 Paige, 402), says : “ Although this court has the physical power to act coercively on the parties within its jurisdiction to the same extent, it has frequently .decided that it would not sustain an injunction bill to restrain a suit or proceeding previously commenced in a court of a sister State, or in any of the Federal courts. The same principle has been adopted by the Supreme Court of the United States. (Driggs v. Wolcott, 4 Cranch, 179; McKim v. Voorhies, 7 id. 278.)

“ And I am not aware that any court of equity in the Union has deliberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in the courts of another State.”

To the same effect is the case of Rio Grande Railroad Company v. Gomila (132 U. S. 483), the other case cited by defendant. (See Schuyler v. Pelissier, 3 Edw. Ch. 191; Coster v. Griswold, 4 id. 376.)

On the other hand, in Dinsmore v. Neresheimer (32 Hun, 206), the General Term of the first district enunciates this doctrine: “ The principle has been regarded and stated as elementary in its character that a court of equity should interfere when sufficient equitable reasons are presented for doing so, to restrain the prosecution of an unconscionable action, although it may be pending in the courts of another State or country. (Story’s Eq. Juris. § 899.) This may be done without interfering with the proceedings themselves, by controlling the conduct of the parties when they are subject to the jurisdiction of the court so interposing for the prevention of injustice.” In that action an injunction Avas granted to' restrain the prosecution of an action in the Supreme Court of the District of Columbia, sufficient equitable grounds existing therefor.

In Dehon v. Foster (4 Allen, 550), the court remarked: “ The authority of this court, as a court of chancery, upon a proper case being made, to restrain persons within its jurisdiction from prosecuting suits either in the courts of this State, or Of other States, or foreign countries, is clear and indisputable. In the exercise of this power, courts of equity proceed, not upon any claim of right to interfere with or control the course of proceedings in other tribunals, or to prevent them from adjudicating on the rights of parties when drawn in controversy, and duly presented for their determination. But the jurisdiction is founded on the clear authority vested in courts of equity over persons within the limits of their jurisdiction, and amenable to process, to restrain them from doing acts which will work wrong and injury to others, and are, therefore, contrary to equity and good conscience. As the decree of the court in such cases is pointed solely at the party, and does not extend to the tribunal Avhere the suit or proceeding is pending, it is wholly immaterial that the party is prosecuting his action in the courts of a foreign State or country.”

This case was followed in Vail v. Knapp (49 Barb. 308, 309); Claflin & Co. v. Hamlin (62 How. 284). In Town of Thompson v. Norris (11 Abb. N. C. 171, 172), Justice Learned intimates that there may be exceptional cases where an injunction would lie restraining the prosecution of an action in the United States courts.

See, also, Burgess v. Smith (2 Barb. Ch. 280), where Chancellor 'Walworth intimates that in a very special case the rule of comity forbidding the granting of an injunction to stay proceedings in a court of competent jurisdiction of a sister State might not be followed.

In Barry v. Brune (8 Hun, 395 ; 71 N. Y. 261), an action was commenced to collect an insurance policy and to restrain the enforcement of a judgment obtained by the defendant Bruñe in the Federal court as assignee of the policy of insurance; plaintiff obtained a judgment for the amount of the policy and a perpetual injunction against the defendant restraining the enforcement of the United States judgment. This case would seem to determine that in a special case parties might be enjoined from proceeding in the courts of the United States.

In People v. The Erie Railway Co. (36 How. 132), the defendant was enjoined from delivering its property to a receiver appointed by a United States District Court. (See, also, Bowers v. Durant, 43 Hun, 348 ; Kittle Case, 8 Daly, 72; Hayes v. Ward, 4 Johns. Ch. 123.)

If the judgment of the Central National Bank on the certificates had been in the Supreme Court of the State —being so obtained on certificates issued in an action held to be fraudulent, and the judgment and proceedings in which are, so to speak, “ wiped out ” by the judgment in this action, it would be hardly claimed that a sale on the foreclosure of said certificates, which could convey no title and which would necessarily cast a cloud upon the title of the property under the sale in this action, should be allowed to proceed.

There are cases which hold that where the jurisdiction of the United States is derived from the citizenship of the parties, no higher sanctity or effect can be claimed for a judgment of a Circuit Court of the United States than is due to judgments of the State courts in a like case and under similar circumstances. (See Dupasseur v. Rochereau, 21 Wall. [U. S.] 135 ; Crescent Live Stock Co. v. Butchers’ Union, 120 U. S. 147.)

If the doctrine as enunciated in these cases is correct then the court could as well enjoin the parties from proceeding to a sale on the judgment in the Federal court in favor of the Central National Bank as if that judgment had been rendered in the Supreme Court of this State. Especially in a case like this, where the action was commenced in the courts of this State, and only removed to the courts of the United States because of the citizenship of the parties.

With some hesitation I have reached the conclusion under the. authority of the cases above cited that in some cases this court as a court of equity by its judgment may restrain parties from proceeding in the Federal courts, equity demanding such a judgment. It is true that ordinarily parties in an action in a State court will not be enjoined from proceeding in the action in the courts of the United States. This is the usual rule. It may be said to be the rule. But there are exceptions to the rule as held in the authorities hereinabove cited.

In 1 High on Injunctions, page 92 (note to sec. Ill), the author, referring to the dicta 6 Wallace, 514, says : “ While the doctrine as thus stated is undoubtedly true as regards any effort on the part of a State or Federal court to operate by injunction upon the process of any other tribunal, State or National, it should be borne in mind that courts of equity, in the exercise of their extraordinary powers by injunction, have never assumed to enjoin the court itself, but only to arrest the action of the parties litigant; and this in the exercise of a jurisdiction strictly im, personam.”

Probably the State courts cannot enjoin proceedings in a Federal court, nor can á State court ordinarily enjoin parties from proceeding in a Federal action, but there are exceptional cases where the parties may be so restrained. The cases cited by defendant I think are not quite similar to this. In Riggs v. Johnson County (6 Wall. [U. S.] 166), an injunction'was issued by a State court to stay proceedings on a judgment duly rendered in a United States court on the ground that the coupon bonds upon which the judgment was obtained were void under the holding of the State court, the Federal court having held them valid. In fact, by the action in which the injunction was issued the State attempted to reverse and set aside the holding of the United States court on questions of law involved in the case. And the court held: That the injunction of a State court is inoperative to control or in any manner to affect the process or proceedings of a Circuit Court.”

It will be perceived that the action of the State court in that case was in direct conflict with the United States court. The cases of The United States v. Keokuk (6 Wall. 514); The Mayor v. Lord, (9 id. 409); Supervisors v. Durant (Id. 415), are similar to that of Riggs v. Johnson County (supra), and very clearly not like this case. In Rio Grande R. R. Co. v. Gomila (132 U. S. 478), the property of the debtor had been seized under execution on a judgment obtained of the Federal court, and it was held that the probate laws of the State would not take the property from the hands of the marshal. The court held that it would have been different had there not been any seizure under the United States judgment (pp. 484, 485). Of course, such a decision follows the doctrine that the proceedings in the courts of the United States cannot be interfered with by the State courts. The court then through its officers being in the actual possession of the property. The case of Amy v. The Supervisors (11 Wall. 136), is similar to that of Riggs v. Johnson County (supra). In McKim v. Voorhies (7 Cranch, 279), it is held that the State court has no jurisdiction to enjoin a judgment in the Circuit Court of the United States. In that case the State court attempted to enjoin all proceedings in a judgment of ejectment obtained in the Federal court, thus restraining proceedings on the judgment, not the party.

I think that no injunction should be granted by State courts restraining the enforcement by parties of a Federal judgment where the effect of such, injunction is to raise a conflict with the Federal court. Neither, probably, can proceedings in the Federal courts be enjoined by a State court. But the authorities above cited seem to hold that in certain exceptional cases parties to an action in a State court may be enjoined from taldng any proceedings under a judgment in a Federal court.

Although the doctrine enunciated in some cases cited by defendant, if taken literally, seems different, yet such doctrine in each of . such eases was stated in reference to the facts of the case before the court, which, as we have seen, were very different from those in this case.

In this action the authority to issue the certificates, under which the Central National Bank is proceeding in the Federal court, is an order made in the Supreme Court of this State in the Saekett suit. The same court in which the Saekett order was entered now vacates and sets aside, as it lawfully may, the Saekett judgment and sale, and all proceedings in that action, except as far as it determines the rights of the Central National Bank and Hazard and Foster and their grantees, as against parties represented in that action, to the proceeds of the bonds held by parties so represented.

The Supreme Court, therefore, on setting aside the proceedings in the action under which the Central National Bank received its certificates may properly restrain by injunction that bank from proceeding upon the judgment it obtained upon such certificates.

That bank is striving to enforce certificates issued by the Supreme Court of this State, which that court now adjudges void. It is proper for that court to prevent the bank from selling under a judgment upon the void certificates, which sale would give no title and tend to cast a cloud upon the title of the property to be derived under the sale herein. Such action of the State court js not at all in conflict with the holding of the Federal court. The judgment obtained in that court was in the action by the Central National Bank against Hazard and Foster, their grantees, and the American Loan and Trust Company, as subsequent mortgagees. Said judgment was based on the validity of the Saekett suit and judgment. The question as to whether that was a representative action or a fraudulent one was not involved. The only question in the Federal court was, were the certificates issued pursuant to the order of the State court in the Saekett suit, and was the plaintiff the owner of such certificates. No question raised in this action was involved in that. The judgment in this action raises no issue with the Federal court. That judgment was to enforce the certificates of this court, which this court now vacates with the proceedings and judgment in the action in which they were issued.

Hence, this case is one where, in the language of the counsel for the defendant, “something has a/risen sünce the rendition of the Federal judgment to render its enforcement unequitable.” It is true that the judgment $>f the Federal court has not been reversed; but a judgment has been duly entered in the State court that avoids, as against the plaintiff and parties to this action, the certificates on which, the Federal judgment was based and renders a sale thereunder inequitable and ineffectual to convey any title.

In my opinion, the effect of the judgment for the resale of the. property and the vacating the decree and sale thereunder in the Sackett suit renders an injunction of the sale under the certificates issued in the Sackett suit not only proper but necessary. If this court cannot award stick an injunction it could not render the judgment given in this case. Such an injunction is a part of the relief the plaintiff is entitled to, if entitled to any judgment. To vacate the Sackett judgment and sale and proceedings on the ground that the action was not a representative one or was fraudulently conducted, and yet to allow, under certificates issued in that action, defendant to sell the property would not be reasonable or proper.

I think, therefore, that the motion should not be granted. I presume that no order is necessary to be entered. The matters discussed on this motion might properly have been discussed before the rendition of judgment, and hence no costs should be allowed.

As to the $2,000 allowance to the plaintiff, I thought, considering the amount involved and the necessary labor in the case, that such allowance was not excessive. But, of course, if desired the parties should be heard in the matter, and I am willing to hear any suggestion in that regard. Possibly other parties are entitled to some ..allowance.


author: Herrick, J.:

text:
    Jesse V. Palmer and Another, Respondents, v. Charles H. Angel and Another, Appellants.

      Grant of water for a mill — place of measurement of the quantity of water.

    ■When a grant of water for the use of the grantee’s mill conveys a right to take a specific quantity of water as such, measured in inches, and not a specified power, and fixes the place where the grantor is to furnish the water as, e. g., that it is to he taken from the grantor’s race at a certain point, the quantity of water to which the grantee is entitled is to he measured at the place so fixed for its delivery and not at the mill where it is used.
    Appeal by the defendants, Charles H. Angel and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Washington county on the 19th day of January, 1892, upon the report of a referee.

      The action, was brought to determine the true amount of water which the defendants were entitled to use, under certain grants contained in deeds, and to restrain them from using a greater amount, and for damages for a wrongful use of water.

      G. G. Van Kwh, for the appellants.

      R. A. PaA'menter and Kseh Oowm, for the respondents.
   Herrick, J.:

Prior to the 1st day of May, 1863, the Battenkill Knitting Company was the owner of certain real estate and lands in the county of Washington, through which lands and real estate runs a stream known as the Battenkill; across such stream there was a dam and a mill pond created by said dam, the water power from which was used to operate the mill owned by the Battenkill Knitting Company.

On the 1st day of May, 1S63, the Battenkill Knitting Company executed and delivered to Moses Ballou and Horatio G. Craig and their assigns a deed to a portion of the aforesaid premises owned and occupied by the said company, and also conveying to them a portion of the water power, and in said deed it was covenanted and agreed that the “ parties of the second part, their heirs and assigns, are to have the right to tap the raceway of said Battenkill Knitting Company at a point near the southeast corner of said factory, and nearly opposite said elm tree, also the right to enter upon the premises of said company to build, repair or use a trunk or race and head gate by them erected, for the purpose of using the water as above conveyed; also the right to use from the raceway of said company six hundred inches of water for the purpose of carrying their mills and machinery, and the party of the first part agrees to furnish said water in their said race at all times, for the use of the party of the second part. The party of the first part, however, expressly excepts from the grant to the parties of the second part and expressly reserves to itself the first five hundred inches of water from their dam for the use of said knitting factory, that is now built, and said knitting company is forever to have the right to use said five hundred inches of water in preference to said parties of the second part. The parties of the second part are to have the right to draw an additional number of inches of water through their race to use on then1 wheels up to the number of two hundred inches, by paying therefor to the party of the first part, at the rate of one dollar and fifty cents per inch. The parties of the second part are to decide how many indies, if any, they need above the six hundred inches above mentioned, on or before the 1st day of January, 1865.”

Ballou and Craig, within the time prescribed, elected to purchase the additional 200 inches of water, paid the stipulated price therefor', and received a conveyance thereof from the Battenkill Knitting Company.

The plaintiffs have succeeded to all the lands and water power formerly owned and used by the Battenkill Knitting Company, except the land and use of water conveyed by said company to Ballou and Craig; the defendants by conveyance have succeeded to all the lands and use of water conveyed by the said company to Ballou and Craig. After the execution and delivery of the deed of 1863, and during that year, the grantees, therein named,' erected upon the premises conveyed to them, a paper mill, and tapped the raceway of the Battenkill Knitting Company at the point indicated in the deed, and conducted the water therefrom by a ditch or opening some fifteen feet in width, to the wheels of the paper mill erected by them. The knitting mill and the paper mill were thenceforth operated by their respective owners; changes were made in each; new and additional wheels were put in each; no attempt appears ever to have been made to measure the amount of water -retained by the plaintiffs or their grantors, or used by the defendants or their grantors.

A pumping wheel was put in use by the defendants’ grantors for pumping water out of the defendants’ flume, the water so pumped out not reaching the wheels of the paper mill at all, but being diverted therefrom and used for other purposes.

The mill of the defendants is about seventy feet distant from the point in the plaintiff’s raceway where it is tapped to draw the water as provided in the deed.

The real question between the parties appears to be, where the water is to be measured. The defendants’ contention is, that it is to be measured at the wheels of their mill, the plaintiffs’ that it is to be measured where their raceway is tapped to deliver the same. The question seems to me to turn upon the wording of the deed, and very little light is shed upon it by the cases that we have been referred to. In Cromwell v. Selden (3 N. Y, 253), the grant to the defendant was of “ water sufficient to keep a saw mill in operation at all times when there is more than there is wanted to drive a grist mill with three run of stone, a set of carding machines, and picker and fulling mill, and other machinery for dressing cloth.”

In Wakely v. Davidson (26 N. Y. 387), the grant of water power was in these words: Also the privilege of water to turn said fulling mill when the same is not wanted for carding wool.”

In Groat v. Moak (94 N. Y. 115), the conveyance was of a grist mill property, and the use of water necessary to operate the grist mill, with the reservation to the grantor of sufficient water to use and operate machinery in a cotton factory.

In Mudge v. Salisbury (110 N. Y. 413), the grant was of a certain amount of land, “ together with the grist mill privilege, being first on the stream, for two run of stone, with the necessary apparatus for the same.”

In all these cases it will be observed that the grant was of power; the amount of water was measured by the power that was granted.

In this case the p'arties have no specified power granted, but have a specified quantity of water.

While the water mentioned in the grant here was of course intended to be used for the purpose of producing power, yet the amount of power was -not specified, but the amount of water was. Where there is a grant of power, the amount of water that the grantee is entitled to is measured by the power specified, while in the case of a grant of water as such, the power to be used is meas-, ured by what can be produced by the specified amount of water granted.

If we felt free by the terms of the deed, construing it most favorably to the grantees, to interpret it purely as a grant of power, then I think the defendants’ contention would be correct, and the measurement should be made at the point where the power is produced or exerted, that is, at the wheels of the mill. But the grant will not bear,that interpretation; it is not water sufficient to operate a given number of wheels, or of water sufficient to operate the mill, but of 800 inches of water. The grant is “ of the right to use from the raceway; ” tlie grantors “ agree to furnish said water in their said race; ” the grantees have the right to tap the grantors’ race for the purpose of obtaining said water.

It would appear then that the water is to be delivered at the point where the raceway is tapped; it is to be used from the grantors’ raceway ; it is to be furnished in their raceway, not at the defendants’ mill, or in the ditch or flume that they dug from such raceway, but in the raceway.

It seems to me then that the place where the water is to be furnished and delivered to the defendants by the terms of the grant, is. the place where it should be measured. The contention that it will not give them as much power measured at that point as it would if measured at the wheels, it seems to me cannot affect the interpretation to be given to the wording of the grant. If they had contracted purely for power, then that power would have been measured where it was produced or exercised, which would also be its place of delivery. Having seen fit to contract for a measurable or specific quantity of water, that must be measured at its place of delivery, which is. also the place where in this case the grantors specifically agreed to furnish it.

The referee has found from the evidence before him, that the-grant of water is of square inches, and that at the existing head of water at the point of delivery it will require an opening or orifice-of 1,280 square inches to permit the delivery of 800 inches, and from this conclusion I can see nothing in the evidence to cause me to differ.

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J:, concurred.

Judgment affirmed, with costs.


text:
    Ephraim Bond, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Sow evidence is to be construed, on review of a direction of a verdict for the defendant — pm'sonal ingury received in passing over a raibroad crossing, guarded by gates — contributory negligence.

    On the review of the action of the trial court in directing a verdict for the defendant, the plaintiff is entitled to the most favorable construction of the evidence.
    A traveler approaching a railroad crossing guarded by gates is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded.
    On the trial of an action brought to recover damages for a personal injury alleged to have been received by the plaintiff through the negligence of the defendant railroad company in striking, with a passing train, the wagon of a third person, who was in the act of crossing the track near the plaintiff, and throwing the wagon box upon the plaintiff, it appeared that when such third person approached the crossing, which was guarded with gates, the gates were down and he stopped his team; a train passed and the gate-tender raised the gates and signaled him to cross.

      Seld, that being invited by the open gate and by the gate-tender to cross when he did, and it being a descending grade, it was not necessarily negligent' for him to allow his team to go on to the track on a trot, or to whip up his team when called upon to act in the face of the great danger of an approaching train; and that, if contributory negligence on the part of such third person constituted a defense to the plaintiff’s action, the question as to such negligence was, under all the circumstances of the case, one of fact for the jury.
    Appeal of the .plaintiff, Ephraim Bond, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Montgomery county on the 31st day of May, 1892, upon a verdict for the defendant rendered by direction of the court at the Montgomery Circuit, and from an order denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for a personal injury suffered by the plaintiff, alleged in the complaint to have been received under the following circumstances :
    “ On the 23d day of November, 1891, while the plaintiff was lawfully traveling on foot on Bridge street, toward a certain crossing of defendant, in the city of Amsterdam, at said street known as Bridge street, in said city, and while one "William Struing was also traveling in a wagon on said street, approaching said crossing where said street crosses the said railroad tracks,' and which said crossing is at that point provided with guard gates and a man to open and shut the same and to notify persons of the approach of trains at that point; the defendant, at the time aforesaid, so carelessly and negligently guarded and attended to the said guard gates, and to the management of said crossing and of said railroad, that the said servant of defendant then in charge of said guard gates, carelessly and negligently raised the same, and signaled the said Struing, who was then approaching said crossing from the north, to come on and pass over the said railroad track, which he, said Struing, then .proceeded carefully to do, but when he reached the middle of the tracks with his team and wagon he was suddenly made aware of the tvery near approach of a passenger train of defendant, coming at a high rate of speed from the west, from a point he could not see till on said tracks, and it being impossible to stop his team, said Struing, to avoid instant death to himself and team, whipped them up in an endeavor to escape from said railroad tracks and said train of defendant, and had nearly done so when defendant carelessly, and without any fault of said Struing, allowed one of their locomotives drawing said railroad train, to strike and come in collision with the rear end of the box of the heavy coal wagon which said Struing’s team was drawing, thereby throwing the said box over and upon plaintiff, who was then near said crossing, and on said Bridge street, greatly injuring and bruising him, said plaintiff, and without any fault or negligence on his part, and wholly through the fault of said defendant, this plaintiff being wholly unaware of the near approach of said train or engine, or of the possibility of said collision.”

      P. J. Sa/nson, for the appellant.

      G. D. Prescott, for the respondent.
   Putnam, J.:

The questions involved in this case are so well settled and have been so often discussed, that an opinion 'is unnecessary.

The trial court having directed a verdict for defendant, on this appeal plaintiff is entitled to the most favorable construction of the evidence. (Rehberg v. Mayor, etc., of New York, 91 N. Y. 141.)

There was testimony given tending to show negligence on the part of the defendant, in the management of its gates, which if ■submitted to the jury would have sustained a verdict for the plaintiff. (Kane v. N. Y., N. H. & H. R. R. Co., 31 N. Y. St. Repr. 741; 132 N. Y. 160; Phillivs v. N. Y. C. & H. R. R. R. Co., 25 N. Y. St. Repr. 91.)

If contributory negligence on the part of Struing, the driver of the coal wagon, constituted a defense to plaintiff’s action, as claimed by defendant — the question as to such negligence was, under all the circumstances of the case, one of fact for the jury, and not one ■of law for the court.

A traveler approaching a railroad crossing guarded by gates, as was the crossing in question, is not required to exercise the same vigilance in looking and listening as when the approaches are not so guarded. (Kane v. N. Y., N. H. & H. R. R. Co., 132 N. Y. 160.)

It appears that when Struing approached the crossing the gates were down and he stopped his team. A train passed and the gate-tender raised the gates, at the same time signaling Struing to cross. Struing’s view was obstructed to the west by buildings and by a train standing on the track. Being invited by the open gate and by the gate-tender, to cross when he did, and it being a descending grade, it was not necessarily negligent for Struing to allow his team to go on to the track on a trot. Nor, if Struing, when he first saw the approaching tram so nearly upon him, and was called to act suddenly in the face of great danger, did not act with the best judgment in whipping up his horses — can he be held as a matter of law negligent. (Twomley v. C. P., N. & E. R. R. R. Co., 69 N. Y. 158.)

It is only in rather exceptional cases that the question of contributory negligence can fee taken from the jury, (Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 364.)

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

Mayham, P. J., and Herrick, J., concurred.

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


text:
    Julius Burgevin, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Railroad passenger*s baggage checked to an vntermediate station, to await the return of the passenger — liability of the company as a common carrier — reasonable time.

    ■When a railroad passenger, with the knowledge and consent of the agents of the railroad company, has his baggage checked to a station intermediate that of departure and the one to which he has purchased a ticket, on the understanding that it will be all right to leave the baggage over night at such intermediate station while he proceeds to the station to which he has purchased a ticket, with the intention of returning to the intermediate station in the morning, the company is liable as a common carrier for such baggage until it arrives at such intermediate station, and until the passenger has a reasonable time to remove it therefrom.
    Semble, that in the case of a passenger’s trunks arriving at a railway station in the evening, a delay in calling for them until the next morning is not an unreasonable delay.
    Appeal by the defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Ulster county on the 29th day of October, 1892, upon a verdict rendered at the Ulster Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      Ashbel Green and F. L. Westbrook, for the appellant.

      F. M. Fe Witt, for the respondent.
   Herrick, J.:

This is an appeal from, a judgment rendered upon the verdict of a jury in favor of the plaintiff and against the defendant, in an action to recover the value of a trunk and its contents, charged to have been destroyed in a fire which occurred in defendant’s station located at West Park.

The plaintiff was intending to go to work upon a place located a mile and a half, or thereabouts, from the railroad station at West Park. He purchased a ticket from New York city to Kingston. Kingston is about ten miles north of West Park. He purchased the ticket for the train leaving New York at four-fifteen in the afternoon; he then went to the baggage-master and told him that he wanted his trunks checked to West Park ; that lie was going to West Park; that he had no way of staying there over night; that he would like to leave the trunks over night if they would be all right; that he told him that he was going to Kingston; that he would be down on the first train in the morning, and the baggage-master said that that would be all right; that the plaintiff could come the next morning and get the trunks.

The plaintiff having two trunks, the baggage-master weighed them, charging the plaintiff twenty-five cents for excess baggage, gave him a check and receipt for them.

The train was due at West Park about six-forty-one in the evening ; the plaintiff took the train, his trunks were shipped and left at West Park. The plaintiff went to Kingston, stayed there all night, returned to West Park next morning between six and seven o’clock, and found that there had been a fire at the depot, and that one of his trunks had been destroyed.

The court held that the defendant was not hable as a common carrier, but simply as a warehouseman, and so only responsible to the plaintiff for' negligence in the discharge of its duty as a warehouseman, and it held that there was nothing to go to the jury, except the question of negligence, and upon that issue the jury rendered a verdict against the defendant. I have not stated the facts or any of the evidence bearing upon the question of negligence because from the view that I have taken of the case, it is unneces1 sary to discuss that question.

The defendant was liable as a common carrier for the plaintiff’s baggage until it arrived at West Park, and until the plaintiff had a reasonable time to remove it. (Roth v. Buffalo & State Line R. R. Co., 34 N. Y. 548; Burnell v. N. Y. C. R. R. Co., 45 id. 184.)

As to what.is a reasonable time, it was said in the Burnell case, that it cannot be definitely determined, but must be left to the circumstances of each ease. And, when there is no dispute as to the fact, what is such a reasonable time is a question of law for the court to decide. (Hedges v. H. R. R. R. Co., 49 N. Y. 223.)

In the Roth case, where, as was stated in Burnell v. N. Y. C. R. R. Co. (45 N. Y. 187), “ the rule of exemption from strict liability was carried to the utmost limit of propriety, to say the least of' it,” the facts were as follows : “ The carrier transported the passenger and his trunk to the place of destination, and was ready to deliver it on its arrival, but the passenger who accompanied it, and, therefore, had notice of its arrival, neglected to receive it, and left it in the carrier’s possession, not because it was unsafe or improper for him to take it, but because he preferred to leave it at the depot over night rather than carry it to his lodgings.” There was no agreement, understanding or permission by which the baggage was jiermitted to remain in the depot over night.

The court, in announcing its decision, stated that it was strictly in view of the special facts of the ease, that the rules that it laid down were not intended to apply to the case of the baggage of a passenger, who with the knowledge and consent of the agents of the railroad company stops at an intermediate station, on the route, over which he has contracted to be carried, intending to pursue his journey on a subsequent train, and left his baggage in the keeping of the carrier in the meantime.” Upon the undisputed facts in this case, it seems to me, as matter of law, the responsibility of the defendant as a common carrier did not cease before the time of the fire.

The baggage had arrived at West Park between six and seven o’clock in the evening, and it seems to me that in the case of trunks arriving in the evening a delay in calling for them until the next morning is not an unreasonable delay, and again, in this case we have almost the identical facts suggested in the JRoth case of the knowledge and consent of the agents of the railroad company (see 34 N. Y. 554), that the baggage should remain in the keeping of the carrier.

It seems to me, therefore, that the holding of the trial court was more favorable to the defendant than the facts entitled it to, and that it has not been injured thereby or by any of the rulings of the court upon the admission of evidence relative to the question of negligence, and that the judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


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    Hattie Krauss, as Administratrix of Joseph Krauss, Deceased, Respondent, v. The Wallkill Valley Railroad Company, Appellant.

      Injury received in crossing a railroad track — contributory negligence.

    In an action brought to recover damages for the death of a person caused by reason of standing cars, between which he was crossing a railroad track, being driven together by an approaching train, the evidence showed that the train was backing slowly, and that the deceased could see the track for a distance of from 200 to 300 feet, with but two box cars between him and the train.

      Held, that the evidence indicated contributory negligence on the part of the deceased.
    To justify the submission of such a case to the'jury, it is not enough that the evidence does not absolutely show contributory negligence on the part of the deceased; it must establish his freedom from contributory negligence.
    The omission of a railroad company to give statutory or other signals, or to exercise proper care, does not excuse one crossing its tracks from observing care on his own part.
    Appeal by tbe defendant, tbe Wallkill Valley Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Ulster county on tbe 21st day of June, 1892, upon a verdict rendered at tbe Ulster Circuit, and from an order denying tbe defendant’s motion for a new trial made upon tbe minutes.
    The action was brought to recover damages for tbe death of tbe plaintiff’s intestate, Joseph Krauss, which was alleged in tbe complaint to have occurred under tbe following circumstances :

      “ On or about tbe 22d day of July, 1891, tbe said Joseph Krauss, at that time employed as a mill-stone picker by tbe Lawrence Cement Company at Rosendale in the county of Ulster, after going with tools to be sharpened at tbe blacksmith shop of said company, as was tbe rule after day’s work, was returning along a path beaten by use towards tbe mill, likely to get bis coat, bis day’s work being finished; at a point where tbe path crossed tbe track of - defendant’s railroad there was an opening between cars of a foot and a half or two feet, and at tbe time tbe said Joseph Krauss,' deceased, was going along said path across tbe said railroad tracks and through said opening, a train of about twelve cars, propelled by an engine, without notice .to said Joseph Krauss, drove tbe cars at said opening together, fatally crushing the said Joseph Krauss, deceased, and from such injuries he died in about ten hours, without any fault or misconduct on his part, but only from the misconduct and mismanagement and negligence of defendant’s workmen and employees on the train.”

      Ashbel Green and F. L. Westbrook, for the appellant.

      William Lounsbery, for the respondent.
   Putnam, J.:

We think plaintiff failed to show the absence of contributory negligence on the part of deceased, the testimony in the case rather tending to establish his carelessness. The train was backing slowly; Krauss was walking across the track; there were but two box cars between him and the slowly moving train. He could see down the track 200 or 300 feet. Had he looked before he stepped on to the track between the two cars, it is difficult to understand how he could have failed to see, at least, the nearest end of the approaching train. All the evidence given in the case indicates negligence on the part -of the deceased.

If, however, the testimony does not absolutely show the contributory negligence of Krauss, it certainly fails to establish his freedom from negligence. Hence, we think, the case should not have been submitted to the jury. “ In the absence of any evidence exonerating the deceased from contributing by liis own negligence to the accident, no case was made for submission to the jury.” (Borden v. D., L. & W. R. R. Co., 131 N. Y. 671; Wiwirowski v. L. S. & M. S. R. Co., 124 id. 425.) .

It is well settled that the omission of a railroad company to give statutory or other signals, or exercise proper care, does not excuse one crossing a track from observing care on his own part. (Cullen v. D. & H. C. Co., 113 N. Y. 667.)

This view of the case renders it unnecessary to discuss the other questions raised.

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

Mayham, P. J., and Herrick, J., concurred.

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


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    In the Matter of the Judicial Settlement of the Accounts of the Executrix and Executors, etc., of Frederick D. Hodgman, Deceased.

      Pecunia/ry legacy ■ — receipt in full, a ba/i' to a claim fos' interest — interest on a legacy in lieu of dower — appeal from a surrogate’s decree — pa/rty aggrieved.

    A testator, by Ms will, gave to Ms wife, in lieu of dower, “the sum of fifty thousand dollars, which may be invested in bank stock, Port Edward and Wyoming, Iowa, and in bonds.”

      Held, that the legacy was not specific, and, hence, that the widow was not entitled to the dividends wMch accrued on the bank stock and bonds mentioned in the will.
    The testator’s widow, who was executrix of the will, gave her coexecutors the following receipt: “Received from the executors of P. D. Hodgman, deceased, fifty thousand dollars, the amount ,of the legacy left me by the will of said Hodgman, also received from the same three hundred and fifty three dollars, my fee as executrix of said estate.”

      Held, that after this admission by the widow that she had received all she was entitled to on account of the legacy, she was not entitled, on the accounting before the surrogate, to be allowed interest on the legacy;
    That the legacy being given in lieu of dower and thirds, it would not draw interest until the widow elected to receive it;
    That the receipt for fees as executrix, having been given upon a voluntary settlement between the executrix and executors about fifteen years before the accounting and having been acted upon by the parties and the estate having been distributed, it was proper not to allow the executrix any other fees.
    That the executrix was not entitled, on her appeal from the surrogate’s decree upon the accounting, to a review of such of the surrogate’s rulings as affected only the residuary legatees under the will who were parties to the proceeding, and had a right of appeal, but who had not excepted to such rulings or appealed — the executrix not being a party aggrieved by such rulings.
    Appeal by Mary E. Tates (formerly Mary E. Hodgman), as executrix, widow and legatee of Frederick D. Hodgman, deceased, from a decree of the Surrogate’s Court of Washington county, made and entered on the 23d day of April, 1892, judicially settling the accounts of the executrix and executors of the said decedent.
    The will of Frederick D. Hodgman contained the following provision:

      “ Second. I give and devise to my wife, Mary E. Hodgman, all the property, real and personal, occupied by me as my home and used in connection therewith, situated and being in the village of Fort Edward aforesaid to be hers forever. I also give to my said -wife the sum of fifty thousand dollars, which may be invested in bank stock, Fort Edward and Wyoming, Iowa, and in bonds, and which said devise and legacy given to my said wife as aforesaid, I hereby declare are intended to be and are so given to her in full satisfaction and recompense of and for her dower and thirds which she may or can in anywise claim or demand out of my estate.”
    The surrogate found, among other facts, £he following :
    “ That the widow of said deceased, viz., Mary E. Hodgman, now Mary E. Yates, and who was also an executrix of said decedent’s will, on or about June 22nd, 1875, received from her co-executors the $50,000.00 legacy granted her by the will of said decedent, and $353, her commissions as executrix upon the estate of said deceased and executed a receipt to her said co-executors in words following, to wit:
    “ ‘ Received from the executors of • F. D. Hodgman, deceased, ‘ fifty thousand dollars the amount of the legacy left me by the will * of said Hodgman, also received from the same three hundred and ‘ fifty-three dollars, my fee as executrix of said estate.
    “£ MRS. MARY E. HODGMAN.’
    and the same was paid to her by her said co-executors and she received the same at the time, and gave said receipt therefor as full satisfaction for what she was entitled to receive under said legacy provision granted her by the will of said decedent and in full satisfaction of her proportionate share of the commissions allowable to be paid out of said estate and that such satisfaction of such legacy and her share of said commissions remained apparently satisfactory and at least unquestioned down to and until the commencement ,of the proceedings for this accounting in the year 1889.”

      Charles S. Foote, for the executrix, appellant.

      Edgar Hull and Young c& Kellogg and Charles H. Sturges, for the executors, respondents.
   Putnam, J.:

It does not require an argument or citation, of authorities to show that the legacy of $50,000 bequeathed to the appellant in the will of Frederick D. Hodgman, deceased, was not specific, and hence that she was not entitled to the dividends which accrued on the bank stock or bonds mentioned in the will.

Nor do we think appellant entitled to be allowed on the accounting for interest on said legacy. First. The receipt shows that she received the $50,000 in full. This paper is an admission that said sum without interest was what she was entitled to. It shows that she and her co-executors settled on that amount as due her. After having so voluntarily received $50,000 as “ the amount of the legacy left me by the will■ of said Hodgmcvn,” she cannot recover interest. Second. On the evidence and facts of the case the surrogate was authorized to find that the legacy of $50,000 to appellant, being given in lieu of dower and thirds, were paid to her as soon as she elected to receive it. Until such election it would not draw interest.

We are also of the opinion that the surrogate did not err in not allowing the appellant fees other than had already been paid her. Her receipt was as follows : “Also received from the same $353, my fee as Executn-ix of said estate? The parties, as the surrogate finds, seem to have intended to settle their accounts as executors between themselves, and pursuant to the arrangement appellant gave the receipt for $353, her fees as executrix. This voluntary settlement of the amount of appellant’s fees, made about fifteen years before the accounting and during the lifetime of Hitchcock, we think, should not be disturbed. The parties having acted upon it and distributed the estate, the surrogate was right in refusing to reopen the matter.

The two lapsed legacies clearly went to the residuary legatees. (Riker v. Cornwell, 113 N. Y. 115 ; Matter of Crossman, Id. 509, 510; Matter of Bonnet, Id. 524.) Therefore, the appellant was not entitled to any interest therein as widow, and was not injured personally by the direction in the decree in reference thereto.

We conclude that the surrogate in his decree has not erred in .any way affecting the interests of appellant. If any error has been committed in the conclusions and rulings of the surrogate other than above considered they are such only as affect the residuary legatees under the will in question, who were parties to the proceedings^ with the right of appeal, but who have not taken any exceptions to the rulings of the surrogate or any appeal from his decree. We think the executrix and appellant, having brought the residuary legatees before the surrogate and made them parties to the accounting, on the entry of the decree of the surrogate, has no interest in the decree as far as it settles, determines or affects the rights of the legatees who were parties to the proceeding, and who might except or appeal. If they made no complaint of the rulings of the surrogate or of his decree it is not for the executrix to do so. (Bates v. Ryberg, 40 Cal. 463 ; Estate of Stephen A. Wright, 49 id. 550; Reid v. Vanderheyden, 5 Cow. 719; Salmon, Trustee of Boon, v. Pierson, 8 Md. 297; Stewart, as Trustee, v. Codd, 58 id. 86; Hyatt v. Dusenbury, 106 N. Y. 663 ; Bryant v. Thompson, 128 id. 426.)

The appellant, on the accounting before the surrogate, did not represent the legatees. After she had brought them into court their interests and hers conflicted, as in case of a plaintiff and defendants. Nor does she represent them on the appeal.

We do not, therefore, feel called upon to examine and discuss the .very many other rulings of the surrogate to which exceptions are taken by the appellant, because such rulings only affect the residuary legatees, and are, therefore, of no concern to the appellant, and the residuary legatees make no objection. The executrix is not aggrieved by such ruling. (Civil Code, § 2528.)

The decree provides that $2,932.26 in the hands of Alfred C. Hodgman and $500 in the hands of appellant be paid to respondent Wing. As neither Alfred C. Hodgman or either of the residuary legatees complain of this direction as to the said $2,932.26 appellant has no canse to complain. The $500 in the hands of appellant being the lapsed legacy which, as. we have seen, should go to the residuary legatees, and which appellant holds for them as trustee, said legatees not objecting to the direction of the surrogate requiring said sum to-be paid to respondent, appellant has no cause to complain of such order and disposition of the fund.

Under all the circumstances of the case, we have doubts as to the correctness of the conclusion of the surrogate that there was a balance due Wing as executor from the estate of Frederick D. Hodgman, deceased, of the sum of $13,456.40, and were there any appeal in behalf of the legatees, we would consider this matter, but as the only persons affected by the error of the surrogate, if any was committed, acquiesce in his conclusions, we are not called upon to discuss this question.

We are of opinion that tlie surrogate should have allowed the appellant the amount paid by her to her attorney for services of the accounting. The bill seems reasonable; she was compelled to employ counsel, and she has in her hands, as we have seen, $500 of the assets of the estate. The decree should be modified by allowing' apjiellant the amount paid her attorney, $350, and providing that the balance in her hands, $150, be paid to the respondent, instead of $500, and, as so modified, affirmed, without costs to either party.

Mayham, P. J., and Herrick, J., concurred.

Decision modified and, as modified, affirmed, without costs.


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    Jennie L. Meek, as Administratrix of Thomas R. Meek, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Railroad brakema/n hilled tiohile uncoupling ca/rs — unblocked frog — questions for the jury.

    On the trial of an action brought to recover from a railroad company damages for the death of a brakeman while in its employ, alleged to have been caused by his foot catching in an unblocked frog while uncoupling cars, there was no positive evidence as to whether the cars were in motion at the time.

      Held, that the question as to whether the deceased attempted to uncouple the cars while they were in motion was a matter to be submitted to the jury.
    There was evidence that there was a block in the frog before the accident, and that it had been removed apparently the day of the accident;

      Held, that, the questions whether the deceased’s foot caught in the frog when the block had been taken out, and whether it was negligence in the company not to have the frog blocked or keep it blocked, it having been blocked, were for the jury.
    Appeal by tlie defendant, the New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of Albany county on the 9th day of December, 1892, upon a verdict in favor of the plaintiff rendered at the Albany Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    . The action was brought to recover damages for the death of the plaintiff’s intestate, Thomas R. Meek, while a brakeman in the employ of tlie defendant railroad company, alleged to have been ■caused by tlie negligence of tlie defendant in having a frog unblocked, in which the deceased’s foot caught while he was uncoupling cars, holding him fast, so that he was' crushed by the cars.

      Hamilton Harris, for the appellant.

      J. Newton Fiero, for the respondent.
   Herrick, J.:

It seems to me that this case turns upon questions of fact which were finally submitted to the jury. The question as to whether the intestate attempted to uncouple the cars while they were in motion, is a matter to be submitted to the jury; there does not seem to be any positive evidence either way. There was evidence that there was a block in the frog before the accident; that it had been removed apparently the day of the accident. The question whether intestate’s foot got caught in the frog when the block had been taken out, was for the jury.

Whether it was negligence not to have it blocked or ,keep it blocked, it having been blocked, was also for the jury.

I see no occasion for an opinion.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.