author: Per Curiam.:

text:
    LEWIS D. BROWNING, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Costs — where a complaint sets forth separately several causes of action — what constitutes a “recovery” by the defendant.

    A complaint set forth separately two causes of action.
    The first alleged that a railroad corporation negligently burned a division fence, which was the property of Lewis D. Browning, and that this resulted in the destruction of certain cattle belonging to Browning.
    The second cause of action alleged that a fence was burned which the corporation was bound to maintain, and that certain of plaintiff’s cows escaped upon the railroad tracks and were killed.
    Issue was joined upon each cause of action.
    As to the first cause of action the court instructed the jury to find a verdict for the defendant.
    Upon the second cause of action the plaintiff recovered the value of the cows.
    Held, that, under section 3334 of the Code of Civil Procedure, each party had “recovered” and was entitled to costs as against the other.
    Appeal by the defendant, the New York, Lake Erie and Western Railroad Company, from an order of the Supreme Court, entered in the office of the clerk of the county of Allegany on the 6th day of January, 1892, denying defendant’s motion for a retaxation of costs.

      James H. Stevens, Jr., for the appellant.

      V. A. Willard, for the respondent.
   Per Curiam.:

This appeal must be governed by the decision of this court, made in the case of Burns v. Delaware, Lackawanna and Western Railroad Company (42 St. Rep., 171), where it was stated, in the opinion of Mr. Justice Macomber, that the meaning of the word “recovers,” used in this section, clearly contemplates a decision upon a question of fact, which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issues there presented.

In the case now before us, three causes of action were stated in :the complaint, each one of which was controverted in the answer. The first cause of action consisted of the allegation that the defendant so carelessly and negligently managed its locomotives and cars as to set fire to a division fence, owned by the plaintiff, between two of plaintiff’s lots of land adjacent to the railroad; that by reason thereof seven head of cattle of the value of $170 were destroyed, for which a recovery was sought.

The second cause of action was that, at a time stated, two cows of the plaintiff of the value of twenty-five dollars each, escaped from the plaintiff’s lands, through a defective fence which it was the duty of the defendant to maintain, and entered upon the lands and railroad of the defendant, and were run over and killed by the defendant’s locomotive. The third cause of action is unimportant to the consideration of any question arising upon this appeal.

The learned justice, at the trial, ruled that he should instruct the jury, which he accordingly did, that upon the first cause of action the jury should render a verdict for the defendant, upon the ground, as appears from the moving affidavits, which are not contradicted, that, by an ancient deed of the lands pertaining to the first cause of action, there was a covenant which ran with the lands, which required the owner of the adjacent property to maintain fences, and for that reason no recovery could be had against this defendant.

It will thus be seen that the defendant succeeded, upon a question of fact against the plaintiff, upon the first cause of action. Upon the second cause of action the jury rendered a verdict for the value of the two cows, namely, fifty dollars and interest from the time of the killing.

Under these circumstances, inasmuch as the causes of action were separately stated and issues of fact were taken upon each of them, and a decision in favor of the defendant upon the first cause of action and in favor of the plaintiff upon the second cause of action was rendered, all the provisions for correlative bills of costs contained in the section above mentioned must be applied; for, in regard to each of such causes of action, there was a decision by a proper tribunal of a question of fact, which, as long as it remained unreversed, was conclusive upon the parties to this action.

It is clear, therefore, that the plaintiff had a “ recovery ” upon the second cause of action, and it is equally clear that the defendant had a “ recovery ” upon the first cause of action.

This, it seems to us, is the precise case contemplated by this provision of the Code; and it follows that the order appealed from should be reversed and the bill of costs of the defendant, arising upon the first cause of action, should be taxed in defendant’s favor.

Present — Dwight, P. J.; Macomber and Lewis, JJ.

Order appealed from reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars costs.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    JANE A. McDOUGALL and SHIRLEY E. BROWN, as Administrators of JOHN McDOUGALL, Deceased, Plaintiffs, v. THE PROVIDENT SAVINGS LIFE ASSURANCE SOCIETY OF NEW YORK, Defendant.

      Life insurance — when a policy for one year is a continuing policy — form of notice of forfeiture to he sent under section 1 of chapter 821 of the Laws of 1877.

    A policy of insurance purported to insure the life of the person named therein for one year only, but the instrument showed that it was contemplated by the parties that if the insured paid an annual premium he might, at his option, keep the policy alive until his death.
    The only right given the insurance company upon its part to terminate the right of the assured to continue the policy arose in case the insured impaired his health by the use of stimulants or narcotics.

      Held,, that such a policy was amenable to the provisions of section 1 of chapter 321 of the Laws of 1877, forbidding a company to forfeit a policy unless it had mailed to the insured a notice stating the amount of the premium, and when and where it was to be paid, and had complied with the other requirements of said section.

      Tlie said section first provides for a case where a premium is not paid when due; and in its last clause it also provides for a notice to be given at least thirty, and not more than sixty, days before a premium becomes due, said notice to state that if the premium is not paid when due the policy and all payments thereon will become forfeited and void; and when this notice is properly given that it shall have the same effect as the notice first mentioned.
    Under this last clause a company gave to the insured a notice in this form: “ In order to continue and extend the insurance it will be necessary that the payments required for that purpose shall be paid on or before the date above mentioned as stipulated in the policy contract. This notice is given to meet the requirements of the New York law.”
    Held, that the notice did not meet the requirements of the statute, and was of no effect.
    Exceptions of the defendant, The Provident Savings Life Assurance Society of New York, taken upon a trial had at the Steuben Circuit before the court and a jury, at which a verdict was directed for the plaintiff for $10,312.23, which exceptions were ordered to be’heard in the first instance at General Term, judgment in the meantime to be suspended.
    The question presented in this case arose under section 1 of chapter 321 of the Laws 1877, which is as follows:
    “ Section 1. No life insurance company doing business in the State of New York, shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of non-payment of any annual premium or interest, or any portion thereof, except as hereinafter provided. *

      “ Whenever any premium or interest due upon any such policy shall remain unpaid when due, a written or printed notice stating the amount of such premium or interest due on such policy, the place where said premium or interest should be paid and the person to whom the same is payable, shall be duly addressed and mailed to the person whose life is assured, or the assignee of the policy, if notice of the assignment has been given to the company, at his or her last-known post office address, postage paid by the company, or'by an agent of such company or person» appointed by it to collect such premium.
    “ Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to a duly appointed agent or other person authorized to collect such premium within thirty days after the mailing of such notice, the said policy and all payments thereon will become forfeited and void.

      “ In case the payment demanded by such notice shall be made within the thirty days limited therefor, the same shall be taken to be in full compliance with the requirements of the policy in respect to the payment of said premium or interest, anything therein contained to the contrary notwithstanding ; but no such policy shall in any case be forfeited or declared forfeited or lapsed until the expiration of thirty days after the mailing of such notice.
    “ Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner hereinbefore provided, at least thirty, and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

      James H. Stevens, Jr., for the plaintiffs.

      Stephen G. Clarice, for the defendant.
   Macomber, J.:

This action was brought upon a policy of life insurance, issued by the defendant to one John McDougall, which was .made payable, in case of his death, to his personal representatives or assigns.

At the close of the evidence the counsel for the defendant asked the court to direct a verdict in favor of his client, which was refused and an exception was taken by him. Thereupon counsel for the plaintiffs moved that the court direct a verdict for the plaintiffs, which was accordingly done. The question presented relates to the application of chapter 321 of the Laws of 1877, pertaining to the thirty-day notice to the insured to pay accruing premiums. The contention made by the learned counsel for the defendant is that the notice required by this law is not applicable to the particular contract made in this instance; and, further, that if it should be held that such notice is required, the one that was actually served was sufficient under such statute. To neither of these propositions are we able to assent.

The policy was issued on the 23d day of July, 1884, and insured the deceased in the sum of $10,000 In view of the attitude taken by tbe counsel for the defendant, it may, perhaps, be necessary to quote from the policy the material parts of the contract between the parties. These are as follows:

“ The Provident Savings Life Assurance Society of New York, in consideration of the application herefor, and which is made a part of this contract, and in consideration also of the payment of $184.80, doth hereby promise to pay to John McDougall, the assured under this policy, or to the legal representatives or assigns of said assured, at its office in the city of New York, the sum of ten thousand dollars, within ninety days after acceptance of satisfactory proof of the death of John McDougall of Hornellsville, county of Steuben and State of New York (the insured under this policy) provided such death shall occur before twelve o’clock noon on the 23d day of July, A. D. 1885.

“ And the said society promises and agrees to renew and extend this, insurance during each successive year from the date hereof, upon condition that the assured shall pay, on or before the 23d day of July, and in each successive year' during the continuance of this contract, the mortuary premiums as called for by the society, in accordance with the schedule rates, for the actual age printed on the back of this j>olicy, and also an expense charge of three dollars on each one thousand dollars insured herein, the payment of said annual mortuary premium and the annual expense charge being the consideration for the continuance of the insurance in each successive year, and provided also that the conditions, stipulations and agreements upon which this policy is issued shall be faithfully observed and fully carried out.

“ Premiums shall be paid, as called for, to the society at its office in the city of New; York, on or before the dates herein specified.”

Then follow provisions for a deposit in bank of seventy-five per cent of the mortuary premium, in trust for the settlement of death claims, the remaining twenty-five per cent to be invested in securities authorized by law. The policy then provides: “Notice-of the amount of the quarterly premium falling due, and demand for its payment, addressed to the within named assured at his post-office address as it appears on the books of the society, deposited in the post-office, postage prepaid, is accepted by the assured as a sufficient personal notice and demand.”

The only provision in the policy enabling the insurance company to terminate the contract is as follows: “ Should the within named insured impair his health by an excessive use of stimulants or narcotics, the society reserves the right to cancel its agreement to continue and extend this insurance by notice sent to him in the manner above specified, in respect to notices of premiums, and agrees to repay to the assured, in that event, on demand at its office in the city of New York, his full share of the aforesaid guarantee fund.”

An ingenious argument has been constructed by the defendant’s counsel, to the effect that this contract does not fall within the provisions of chapter 321 ■ of the Laws of 1877, because it was a contract originally for an insurance for one year only, and that a notice to pay an annual premium was not contemplated'by its terms. He fortifies his argument by the assertion that the annual premium which the assured was required to pay was less than the amount that would have been required by the ordinary policies issued upon the life of insured persons. But, as it seems to us, the particular form of this policy is unimportant, provided it appears from the whole instrument, as we think it clearly does, that there was an intention on the part of the contracting parties that the insurance should be continued until the death of the assured, providing lie fulfilled his part of the agreement in respect to the payment of the premiums. It was not competent, under this contract, for the defendant, at any time, to terminate the agreement except under the provision in respect to impaired health through the use of stimulants and narcotics, which provision does not concern the case in its present aspect. On the contrary, it was in the power of the insured to continue the contract by the payment of the annual premium. Under these circumstances, we do not see but that this is, in effect, the ordinary insurance contract entered into by insurance companies organized and doing business in this State, one of which the defendant is shown to be. No scheme, however ingenious, can be devised by any insurance agent which the courts can permit to be successful in eluding the provisions of this most reasonable statute, which requires a notice to the assured thirty days before his premium falls due.

The argument of the learned counsel is, as it seems to us, fallacious in this respect; that while it is evident that the contract might not continue for more than one year, it may, nevertheless, at the option of the assured, continue during his natural life. In this respect the agreement is precisely the same as that of all ordinary insurance contemplated by the act in question. It matters not whether the provision of the contract is called a condition ” or not, it is the substance of it which the courts should look to; and we find in this contract a clearly expressed intention on the part of both parties, the one to insure, and the other to pay for the insurance, during the life of the insured, so long as the premiums were paid in pursuance of the terms of the contract.

In respect to the assertion that the annual premium was less, because the contract was only one from year to year, it may well be that the company could afford to make it less by so much, provided it was not required to give a notice of the accruing premiums, as provided for by this statute. ¥e think, therefore, that this policy must be regarded as the usual contract of the insurance companies organized and doing business in this State; and we accordingly hold that the company is amenable to this statute which requires it to send notice in pursuance of the act of 1877.

But it is further contended by counsel for the defendant that the notice which they did, in fact, send, was sufficient under the statute. This policy, which was issued on the 23d day of July, 1884, was continued from year to year by the payment of the annual premium, the last of which was in July, 1887, and this kept alive the contract until July 23, 1888. The insured died in the month of November, 1888, not having paid the annual premium maturing July 23,1888.

The notice which the defendant sent to the insured thirty days preceding the 23d of July, 1888, was, so far as this qxxestion is concerned, as follows : “ In order to continue and extend the insurance it will be necessary that the payments i*equired for that pui’pose should be paid on or before the date above mentioned, as stipulated in the policy contract. This notice is given to meet the requirements of the New York law.”

This notice was not prepared in conformity with the provisions of the statute. The part of the statute material to this inquixy is as follows: “ Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner heretofore provided, at least thirty days and not more than sixty days prior to the day when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

Under this clause of the statute it is evident that the notice which was actually mailed by the defendant, within the statutory period preceding the 23d day of July, 1888, was insufficient. In the case of Phelan v. The Northwestern Mutual Life Insurance Company (113 N. Y., 147) the notice was as follows: “The conditions of your policy are that payment must be made on or before the day the. premium is due, and members neglecting so to pay are carrying their own risk. Agents have no right to waive forfeitures, -x- -x- * Prompt payment is necessary to keep your policy in force,” but the court held that such notice did not, in its terms, conform to the statute, and says: “ Many ignorant and unlearned people seek to avail themselves of the advantages proposed by these companies. The statute is designed for the protection of all classes, and the language it prescribes for notice is intelligible to all. To say that in a declared event ‘ a policy will become forfeited and void ’ conveys a meaning easily to be compreh ended. To refer to the policy and conditions and say that • ‘ members neglecting so to pay are carrying their own risk ’ is quite another thing; and while it may be comprehensible to those versed in the language of insurers and accustomed to their phraseology, it is not the language of the statute and does not embody the notice which the statute requires.” (See also cases there cited, and Merriman v. Keystone Mutual Benefit Association, 18 N. Y. Supp., 305.) '

If these views are correct, it follows that the direction made by the learned justice at the circuit was also correct, and, consequently, that the exceptions taken by the defendant should be overruled.

Dwight, P. J., and Lewis, J., concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


author: Lewis, J.:

text:
    In the Matter of the Application of HUGH H. WOODWORTH and Others, for an Order to the County Clerk of Seneca County.

      appealable — who is a “person aggrieved ” by sueh an order — abstract questions not considered on appeal.

    Section 13 of chapter 262 of the Laws of 1890, relating to certificates of nomination and objections thereto, provides that where objection is made to a nomination the county clerk shall, in the first instance, pass upon the validity of the objec- ' tion, and liis decision shall be final unless an order of a competent court or of a justice of the Supreme Court be made on or before the Wednesday preceding the election.
    Two factions of one party having made and filed separate nominations of different candidates for certain county offices, the question arose as to what names should be printed on the ballots. The clerk decided in favor of one faction; subsequently a justice of the Supreme Court made an order directing the clerk to print on the official ballot the names of the candidates of the other faction.
    A member of a county committee which represented one faction was by order-substituted in the proceeding in place of the county clerk, and took an appeal on behalf of himself and his associates.

      Held, that the order of the justice of the Supreme Court was final, and that no appeal could be taken therefrom.
    That a member of a county committee, who was not a candidate upon any ticket, was not a person aggrieved, and could not, in any event, appeal from the order.
    That it was not the province of the court to decide abstract questions of law which could have no effect upon either candidate nor upon the election.
    Appeal by Duncan McArthur, a person substituted by order as the representative of the Republican County Committee of the county of Seneca, in place of its county clerk, from an order of Hon. W. II. Adams, a Justice of the Supreme Court, entered in the office of said county clerk on the 28th day of October, 1891, ordering the county clerk to print on the official ballot the names of the nominees in the certificate of nominations signed by Hugh H. Woodworth and others, as a committee authorized by the republican county convention, as the regular republican nominees for offices at the next election.
    The principal questions involved in' this appeal arose under section 13 of chapter 262 of the Laws of 1890, which reads as follows:
    “All certificates of nomination, which are in apparent conformity with the provisions of this act, shall be deemed to be valid, unless objection thereto shall be duly made in writing within three days after the filing of the same. In case such objection is made, notice thereof shall forthwith be mailed to all candidates who may be affected thereby, addressed to them at their respective places of residence as given in the certificate of nomination. The officer with whom the original certificate was filed shall, in the first instance, pass upon the validity of such objection, and his decision shall be final, unless an order shall be made in the matter by a court of competent jurisdiction, or by a justice of the Supreme Court at chambers, on or before the Wednesday preceding the election. Such order may be made summarily upon application of any party interested and upon such notice as the court or judge may require.”
    IF. A. Sutherland, for the appellant,

      Frederick L. Manning, for the relators.
   Lewis, J.:

Two rival republican county conventions were held in Seneca county in the year 1891. For the purpose of identification one of the conventions is designated in the record as the “ Mongin Convention ” and the other as the “ Patterson Convention.” Each convention claimed to be genuine and regularly organized.

Each put in nomination candidates for county officers to be voted foi by the electors of Seneca county at the general election in November, 1891, and each convention caused to be filed with the clerk of' Seneca county a certificate of the nomination of its candidates, in due form, as required by section 4 of said act. The county clerk received and filed both certificates. Objections were duly filed to both, and, after due notice to the respective candidates, the objections were investigated by the county clerk and he decided in favor of the certificate of the Mongin convention.

An application was thereupon made by the nominees of the Patterson convention to Justice William'H. Adams of the Supreme Court for an order directing the clerk to print upon the official ballots the names of the nominees of the Patterson convention, and, after hearing the parties interested, Justice Adams made the order appealed from, directing the clerk to print on the official ballots the names of the nominees of the Patterson convention.

Tbe clerk complied with the order; the election took place, and thereafter, and on the 28th day of November, 1891, at a Special Term of the Supreme Court, upon motion of Duncan McArthur, who claimed to be one of the members of the Republican County Committee of Seneca county by appointment of the Mongin convention, an order was made that he be substituted in the above-entitled matter in the place of Edward Nugent, county clerk of Seneca county, for the purposes of an appeal, and to the end that his interests and that of his colleagues in the Republican County Committee be protected; and he thereupon brought this appeal.

Is the order appealable? The county clerk primarily hears, investigates and decides upon the validity of the objections, and, unless an order be made in the matter by a justice of the Supreme Court, or a court of competent jurisdiction, the county clerk’s decision is final.

Any party interested can apply to a justice of the Supreme Court to investigate and decide between the contending candidates.

If the decision of the county clerk, who, presumably, as a rule, is not a lawyer, is to be final, there would seem to be no good reason why the decision of the question by a competent court, or a justice of the Supreme Court, should not also be final. The exigencies of the case must always prevent much delay in the investigation and decision of the question.

Conventions are usually held but a few days prior to the day of election. In this case the conventions met on the twelfth of October; certificates were filed the next day; the election occurred November third.

The certificate of nominations is required to be filed with the county clerk not more than thirty nor less than twenty days before the election. A list of the certified names must be published at least six days before election, and sample copies of the ballots must be prepared and ready for public inspection seven days before election. So that the time within which these questions may be investigated and decided is brief and the proceedings must necessarily be summary. We think it must be held that the act does not contemplate that an appeal can be taken from the order of the judge.

But, if the order should be held to be appealable, the appeal must be taken by a party who has some right to be protected or some wrong to be redressed or prevented. A party aggrieved' may appeal. (Sec. 1294 of tbe Code.) A person aggrieved who is not a party, but is entitled by law to be substituted, may make application for an order that he be substituted in place of the party. Mr. McArthur was not one of the nominated candidates. He had no interest in the question that was not common to all the electors of the county of Seneca. He is not, within the meaning of the Code, an aggrieved or interested party. It is suggested in the brief of the appellant’s counsel that the decision of Justice Adams may affect the question as to the personnel of the county committee of Seneca county for the .year 1892. If so, that would not seem to furnish any reason for his interference in this proceeding. But it is not apparent how or in what manner the decision can have that effect. Each of the rival conventions appointed a county committee for the ensuing year, and it is altogether likely a contest will arise as to which one is the genuine committee, but that question was not involved in the investigation before Justice Adams, and cannot be determined here. Eor if it be held that Mr. McArthur can represent his committee upon this appeal, concededly the Patterson committee is not represented in this proceeding, and hence would not be bound by our decision.

We are of the opinion tha t Justice Adam’s order was not appeal-able, and we are also of the opinion that Mr. McArthur has no .interest in the question involved and had no right to bring this appeal. When the order was obeyed by the county clerk it had accomplished its mission; its reversal now would affect neither the election nor the candidates of either convention. This appeal presents simply an abstract question. Appeals are not allowed to settle questions of that character. They are entertained to correct errors injuriously affecting the right of some party to the litigation. (Bryant v. Thompson, 128 N. Y., 433.) Courts will not decide mere abstract questions from the determination of which no practical result can follow. (People ex rel. Geer v. Common Council of Troy, 82 N. Y., 575.) It is not the province of courts to decide abstract questions of law disconnected from the granting of actual relief. (Grow v. Garlock, 29 Hun, 598.) An appeal from an order denying a mandamus to compel the board of estimate and apportionment to make a final estimate in a certain manner of the amount required to pay certain expenses for a year, which, expires before the record is brought before the General Term for review, will be dismissed. So held in People v. Grace (1 N. Y Supp., 661); People v. Board of Canvassers (2 id., 561); see, also, People ex rel. Twenty-third Street Railroad Company v. Squire (110 N. Y., 666); Ross v. Wigg (100 N. Y., 243).

Notwithstanding our impressions that the appeal must be dismissed, we have examined the merits of’ the case, and we find no reason to disturb the decision of Justice Adams upon the merits. The affidavits read upon the application for the order, and printed in the record, disclose a course of conduct at the primaries not very encouraging to the advocates of clean politics.

The appeal should be dismissed, without costs to either party of the appeal.

Dwight, P. J., and Macomber, J., concurred.

Appeal dismissed, without costs of this appeal to either party.


text:
    FRANK BARRETT, Plaintiff, v. THE TOWN OF WALWORTH, Defendant.

      Highways — a large boulder left on one side of a highway as laid out — the duty of highway commissioners— their discretion — liability of the town for an accident.

    Near the center of a highway, which had existed in a town for some thirty years, was a large houlder which had been found to he of such a size that its removal would have been very difficult; in consequence of which the town authorities constructed the road-bed upon the west side of the boulder. In 1889, while one Frank Barrett was driving along this road in the daytime his horse shied, as was alleged, at the boulder, upset the wagon and he was injured.
    In an action brought by him against the town to recover for such injuries:

      Held, that Barrett had no cause of action, as the evidence showed that the boulder was visible from a considerable distance; that there was nothing peculiar in its shape or appearance; that the road around it was in proper condition and of sufficient width to allow a team under ordinary conditions to safely pass it.
    That highway officers were not bound to make every portion of a highway contained within its lines suitable for travel.
    That it is sufficient if they provide a well-defined road of a proper width.
    That, in order to make a town liable, the character of the object should be such as to make the liability of its frightening horses obvious.

      That, in laying out a highway, town officers act to a certain extent in a quasi judicial manner.
    That, in determining to avoid, rather than to remove, the boulder, they exercised their judgment; and if in such exercise they failed, the town could not be made liable to a person injured.
    Exceptions of the plaintiff Frank Barrett, taken upon a trial had at the Ontario Circuit before the court and a jury, where a nonsuit was directed, the exceptions were ordered to be heard in the first instance at the General Term, and in the meantime all proceedings were stayed.

      Edfljoim, Hieks, for the plaintiff.

      Walter 8. Hubbell, for the defendant.
   Lewis, J.:

There was laid out and opened in the town of Walworth, Wayne county, thirty years or more ago, a highway three rods in width. In opening it there was found in the line of the highway, and very near the center thereof, a large natural boulder. The portion thereof extending above the surface of the ground was nine feet four inches from east to west, twelve feet north and south, thirteen feet north-west and south-east. The west side was two feet nine inches above the ground; the south side three feet seven inches above, the east side three feet eleven and a half inches above the ground. The highway ran in a northerly and southerly direction.

In opening the highway the town authorities did not remove the boulder, but in constructing the road-bed turned it to the west side of the boulder.

On the 26th day of May, 1889, in the daytime, the plaintiff was driving a horse before a buggy on the highway in question, and as he approached near to the stone his horse was frightened by it, reared and shied to the side of the road, upset the wagon and injured the plaintiff, and he brought this action to recover compensation for his injuries. At the close of his evidence he was nonsuited and his exceptions were directed to be heard at the General Term in the first instance.

The highway where the accident occurred was straight for a long distance. The stone was plainly visible to a person traveling on the highway for a quarter of a mile either side of the stone. The road-bed, as it turned from the general course of the highway and passed by the stone, was of sufficient width to allow a team under ordinary conditions to safety pass it.

The land in the vicinity of this boulder was quite stony Other stones of considerable size were tying in and upon the sides of the highway, but of much less size than the one in question. The boulder was imbedded in the ground, but to what depth the record fails to show.

It is the contention of the plaintiff that the size and appearance of the stone were such, tying as it did in the center of the highway, that it was likely to frighten road-worthy horses, and that the highway commissioner was guilty of negligence in permitting it to remain in the road. The evidence fails to show that there was anything peculiar in the shape or appearance of the stone to distinguish it from other boulders except its dimensions. The general rules of law, as to the duties of public authorities charged with the care of highways, have been quite well settled by a long line of decisions. It is, as a general proposition, negligence to permit objects to remain in a highway, which from their nature or appearance obviously have a tendency to frighten horses of ordinary gentleness and docility. (Thompson on Negligence, 778.)

A reasonably safe and commodious road-bed must be maintained, so that the traveler can either by day or night pass over it without being exposed to unnecessary peril bj^ objects therein. A very different road-bed, however, is expected and required in the highways of the sparsely settled farming districts than is expected to be provided in cities and villages.

Towns are not obliged to keep the whole of a highway, from one boundary to the other, free from obstructions and fit for the use of travelers. In many cases all the property of the towns would be insufficient for that purpose. There may be ledges of rocks, ravines and water-courses in the road. It cannot be expected that towns shall in all cases make bridges the whole width of the road, or fill up ravines or cut down ledges of rock.

Highway officers are not required to grade the whole space within the limits of the highway, so that a traveler can safety drive his carriage over every part of it. In ordinary cases, if they provide a pathway of suitable width, and so define it as that there shall be no reasonable danger of its being mistaken, they have fulfilled their duty to the public. (Ireland v. Oswego, etc., Plank-Road, 13 N. Y., 531.)

Rocks and stones within the limits of the highway, but not obstructing the traveled path, are not defects for which a town is liable. (Keith v. Easton 2 Allen, 554, citing Howard v. North Bridgewater, 16 Pick., 189; Smith v. Wendell, 7 Cush., 498.)

When, in laying out and opening highways, natural obstacles, like streams, gullies, hills or boulders, are encountered, the authorities are at liberty to change the course of the highway 'to pass around the obstacles. They would not, however, be justified in allowing an actual obstruction or incumbrance to remain in the highway, which tended to impede or hinder travel and make the highway dangerous to travelers coming in contact or collision with it.

The record shows that this boulder did not constitute an actual obstruction in the way of travel, for a roadway of sufficient width was constructed at the side of it.

Upon the highways of our country objects of various description will be found, many of them may cause horses to take fright, but to compel the authorities to remove them all would impose a too serious burden upon the public.

There is a class of cases holding the highway authorities liable for obstructions placed in the highway, like piles of stones, lumber or any object liable and calculated to frighten road-worthy horses. In such cases a question is presented for the decision of a jury as to the negligence of the town authorities.

In Eggleston v. Columbia Turnpike Company (18 Hun, 146), a quantity of stone was deposited upon the margin of the road for the repair of a culvert.

In Foshay v. Town of Glen Haven (25 Wis., 288), a horse was frightened by a hollow, burnt log, lying close beside the traveled part of the road. It was held in these cases that a case was presented for the decision of a jury.

In another case a large rock or boulder had been taken out of the bed of the highway and was allowed to remain an unreasonable time. It was held the town was liable for damages for injuries to the driver by his horses taking fright at the stone. These were cases of misfeasance, and not of nonfeasance.

In tbe cases last referred to, the object or thing was one which the commissioners were bound to remove, irrespective of its tendency to frighten horses. In order to charge the town with liability, the character of the object should be such as to make the danger obvious and the duty of the town clear. (Dimock v. Town of Suffield, 30 Conn., 129; Ayer v. City of Norwich, 39 id., 376; Card v. City of Ellsworth, 65 Me., 547; Nichols v. Athens, 66 id., 402.)

Had the boulder in question been placed in' this highway after the highway was laid out and opened and been allowed to remain by the public authorities for an unreasonabe length of time, a different question would be presented.

Town authorities, in laying out and opening a highway, act to a certain extent as judicial or quasi judicial officers. They are required to exercise their judgment and discretion, and, within certain limits, the town is not liable for their errors of judgment or for errors in the general plan of their work. (Urquhart v. Ogdensburg, 91 N. Y., 67; S. C., 97 id., 238; see, also, Gould v. Topeka, 32 Kans., 485.) They cannot, in constructing a highway, leave therein obvious dangers to the traveling public.

In laying out this highway this boulder was found in the line of the road. It was a natural object. Its removal involved the expenditure of considerable labor, and the question was presented to the authorities as to the propriety of its removal. They determined to change the course of the road-bed and pass to the side of the boulder, and not subject the town to the expense of its removal. And in determining that question they acted, we think, in a quasi judicial capacity, and if they erred in judgment, the town cannot be made liable for the error.

We think there was no error committed in directing the nonsuit, and that the plaintiff’s motion for a new trial should be denied, and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Macomber, J., concurred.

‘ Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.


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    JAMES TOBIN, Appellant, v. WILLIAM J. KAGE, Respondent.

      Payment — a milage treasurer cannot use Ms position to obtain payment of Ms private claim by deducting it from Ms debtor’s claim against the village — clerical error.
    James Tobin bad rendered services to a village of tbe value of forty dollars; bis claim bad been allowed, and William J. Kage, tbe village treasurer, bad been directed to pay it. Kage, wbo was a grocer, and bad a claim of sixteen dollars against Tobin, presented a receipt for forty dollars to Tobin for signature, wbiclr Tobin, wbo could not write, signed witb bis mark, Kage then paid bim the difference between forty dollars and his claim for sixteen dollars, viz., twenty-four dollars. Tobin objected to tbe retention by Kage of tbe amount of bis bill, but finally took tbe twenty-four dollars and stated to Kage that be would sue bim for tbe balance.
    In an action brought by Tobin for a conversion of tbe sixteen dollars;

      Held, that be was entitled to recover.
    That Kage could not use bis official position to secure payment of bis private claim.
    Tbe court will disregard an obvious clerical error, especially where it is in favor of tbe appellant.
    Appeal by the plaintiff, James Tobin, from a judgment of the Niagara County Court, entered in the office of the clerk of said county on the 29th day of July, 1891, affirming a judgment of a Justice’s Court in favor of the defendant, with notice of an intention of bringing up for review upon the appeal an order of said court affirming such justice’s judgment.

      Geor'ge M. Osgoodly, for the appellant.

      Herman 8. lary, for the respondent.
   Macomber, J.:

The plaintiff had performed labor and furnished certain materials for the village of North Tonawanda, in the county of Niagara, amounting to the sum of forty dollars. This claim was properly allowed by the trustees of the village and was by them directed to be paid by the treasurer, who was William J. Kage, the defendant in this action. It seems, however, that Mr. Kage, who conducted a grocery business in that village, had a claim for groceries sold and delivered to the plaintiff, amounting to the sum of sixteen dollars, and accordingly, when the plaintiff called upon him, as treasurer of the village of North. Tonawanda, to pay the forty dollars, the defendant, as a grocer, insisted on the right to take out of such forty dollars the sum of sixteen dollars coming to him, individually. The plaintiff objected to this, as was claimed at the trial, and insisted that 'the defendant should pay him the whole amount of the forty dollars, less, perhaps, the sum of five dollars which the jilaintiff said he was willing to allow upon his personal bill to the defendant. The plaintiff’s testimony upon this point is unshaken in any respect, and is to the effect that he at no time assented to the deduction of sixteen dollars from the forty dollars. He says, in substance, that when he called for the money the defendant passed out to him a receipt for him to sign, but, inasmuch as he could not write, the defendant himself signed his name, and he, the plaintiff, made his customary mark, and that then the defendant passed out to him the sum of twenty-four dollars; and that thereupon, after expressions of surprise by the plaintiff, the defendant told him he had deducted that amount, because he owed it to him for groceries. The plaintiff says : “ I looked at him and said £ What does this mean % ’ He told me ‘You owe me $16 for groceries.’ I said ‘I owe.you that, but I am not prepared to pay you all now.’ He said I know you are not prepared, because I paid myself.’ I said I h’aint going to take this amount.’ Defendant said £ I don’t care if you take it or not.’ Defendant then made a receipt for the $16 which he had kept from me. I told him I wouldn’t take the receipt, said £ I won’t take this receipt, but I carry this on further and sue you.’ Defendant told me he didn’t care.”

The testimony of the defendant himself is as follows: When I found out that Tobin had a bill from the village, he said he pay me. I ask him again and he said that he pay me the bill out of the $10. The day when he came in I told him the orders was in and signed. This was in June. Plaintiff said he would pay part of the bill and would pay the balance another time. He promised to pay the whole. I'told him that I wanted the whole of it, that I had waited long enough, and he said all right. Then I went back to my office and got out my order book and asked him to sign this order. Then he told me he couldn’t write, and I wrote his name for him. I paid him in cash $21, and gave him a receipt of $16 as agreed. Then Tobin told me it was not right to take out the whole, that I told Mm I done just as be agreed with me. Then be said be would sue me if I didn’t pay tbe balance. I told bim I done just with bim as be agreed with me. Then be took tbe money.”

Two witnesses were called in behalf of tbe defendant, each of whom, however, said in respect to tbe conversation at tbe time stated by the parties thereto themselves, one, Herman O. Kage, that at tbe time tbe plaintiff took tbe $24, be said be would sue tbe defendant for tbe balance. Tbe other, Edward Doolan, stated that Tobin said, immediately on passing out of the store, that tbe money be received was only part payment and be would sue tbe defendant for tbe rest.

Upon this evidence, tbe justice ought to have rendered a judgment in behalf of the plaintiff for tbe recovery of tbe unpaid balance. Tbe action was for conversion by tbe defendant of tbe unpaid balance of sixteen dollars which was coming to bim from the village of North Tonawanda. Tbe defendant, as treasurer of such corporation, bad no right to pay himself out of tbe moneys which were thus passing through his hands as treasurer. It would be against public policy to permit an officer thus to coerce a debtor and to pay himself in tbe manner described. This might be considered a new way of collecting old debts, except that tbe same method was attempted, though unsuccessfully, in the case of Clark v. Miller (37 N. Y. St. Rep., 345). Ye but reiterate what we there said, that a public officer cannot be permitted to make bis opportunities thus to subserve bis private and selfish ends, as was done by the defendant.

A point is made by counsel for tbe appellant against tbe judgment in respect to its form. It appears from tbe record that tbe justice of tbe peace, while disallowing tbe plaintiff’s claim, rendered a judgment in bis favor for tbe costs of tbe action. It is suggested, however, on tbe part of the defendant, that this was a mere clerical error in writing in tbe word “plaintiff” for the word “defendant,” and that there really was no intention on tbe part of tbe justice of tbe peace to award costs to tbe plaintiff. If this was tbe sole question in tbe ease, we would be of tbe opinion that tbe appellant would have no cause to appeal, because such judgment, if it was actually rendered, was more favorable to bim than tbe decision of tbe justice would warrant.

But upon the ground above stated, we think the judgment of both the justice of the peace and the County Court should be reversed.

Dwight, P. J., and Lewis, J., concurred.

Judgment of the County Court of Niagara county and of the justice of the peace reversed, with costs of the appeal in this court and in the County Court.


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    MARY B. SMITH, Respondent, v. PEOPLE’S MUTUAL BENEFIT SOCIETY, Appellant.

      Assessment insurance — policy incontestable after one year — violation of by-law as to pa/rty insured — estoppel — waiver — an equitable judgment.

    A policy or certificate of insurance was issued in favor of a son-in-law of the insured by an assessment insurance company, one of whose by-laws provided that the beneficiary must be the husband, wife, family, heirs, legal assignee or creditor of the insured person.
    The policy contained a condition that the same should be incontestable by the company after one year from its date.
    The son-in-law, while the risk was existing, with the knowledge and assent of the company, assigned the policy for a past debt to one Smith, who brought an action at law for damages for a breach of contract, demanding judgment for the amount payable on the death of the insured, who died three years after the policy was issued.

      Held, that, as the company had issued the certificate in the first instance to one whom they knew to be the son-in-law of the insured, they were estopped from setting up the by-law apparently forbidding an issue thereof to such a person.
    That as the assignment to Smith was made without fraud as to the company, and with its knowledge and consent, it could not now object thereto.
    That the provision that the policy should be incontestable after one year cut off such defenses.
    That the proper judgment to be given must be equitable in its nature, directing that the claim of the plaintiff be included in a “ pool ” forming at the time of the entry of judgment herein, and that from it this claim should be paid.
    Appeal by the defendant, the People’s Mutual Benefit Society, from a judgment of the Supreme Court, entered in favor of the plaintiff in the office of the clerk of Cayuga county on the 10th day of February, 1891, after a trial before the court, a jury being waived pending the trial.

      Walter S. MacGregor, for the appellant.

      Colburn do Hunter, for the respondent.
   Macomber, J.:

On the 8th day of April, 1886, Patrick Eyan made application to this defendant, which was then known as and which bore the name of the Old People’s Mutual Benefit Society, for a policy of insurance upon his life for the benefit of one John Driscol, his son-in-law. Accordingly, the defendant, under the name of the Old People’s Mutual Benefit Society, issued a policy of insurance to the applicant, by which the defendant insured the life of Patrick Eyan for a sum not to exceed four-fifths of the amount collected from one assessment on all the members in this class, provided always that in case death shall occur within ninety days from the date of this certificate the amount paid hereon shall not exceed the sum paid in by the insured, with an addition of ten per cent of the same. If death occurs after ninety days and within one year from the date hereof, the sum paid hereon shall not exceed one thousand dollars. If death occurs after one year and within two years from the date hereof, the sum paid hereon shall not exceed two thousand dollars. If death occurs after two years and within three years of the date hereof, the amount paid hereon shall not exceed three thousand dollars. If death occurs after three years the amount paid hereon shall not exceed four thousand dollars. The sum to be paid in accordance with the rules and regulations of the society to John Driscol, son-in-law of the assured; or said beneficiary’s heirs, administrators or assignees, within ninety days after due notice and proofs of death have been, filed at the home office of the society.”

The policy or certificate contained a condition that the same shall be incontestable by the company after a year from its date.

Among the by-laws of the defendant (§ IT), it is provided that the beneficiary must be husband, wife, family, heirs, legal assignee or creditor of the insured person.

On the 14th day of October, 1886, for a past consideration, John Driscol assigned to the plaintiff in this action, all his title and interest in the certificate or policy. The plaintiff was neither a member of the family of Eyan nor related to him in any way, nor had he any insurable interest in his life. But it is proved, and found by the learned court, that the assignment from Driscol to the plaintiff was made with full knowledge and agsent of the company. The proof is satisfactory that John Driscol paid the assessments which were levied up to the time of the assignment to the plaintiff, and that thereafter the plaintiff herself made such payments in due time.

In our judgment, it does not make any difference whether the original payee in the policy, J ohn Driscol, was a person who came within the number of those mentioned in the by-laws, for whose benefit the policy might be taken out, because the company knew that the relationship to the applicant for insurance was only that of a son-in-law. The company should be estopped to assert afterwards that the policy was void for any such reason, because it is not a case of deception practiced by the applicant for insurance, nor is it a case of mutual mistake on the part of the parties to the contract. The action of the company in issuing the policy was clearly a waiver of any by-law or limitation which may have existed in the rules governing its action.

The assignment to the plaintiff is shown to have been with full knowledge and consent of the defendant. No fraud is shown to have been practiced by the applicant, and it seems to us that objection to the payment of the claim now made for the amount due upon the certificate is untenable. The policy having been issued with full knowledge that the beneficiary was a son-in-law of the insured without bearing any other relationship to him, and the assignment having been made with the full knowledge and consent, not to say the direction, of the defendant, and as by the terms of the policy no contest after one year can be made, it seems to follow with reasonable certainty that the plaintiff is entitled to recover the judgment which was pronounced at the circuit. This decision is fully borne out in the case of Wright v. Mutual Benefit Association (118 N. Y., 237). "We concur in the opinion of the learned justice pronounced at the circuit, where he says: “ It has been held in many cases that where the policy provided that in case of death the policy was to be paid by assessments upon its members, nevertheless an action at law could be maintained for damages upon a broken contract to make such assessment, upon showing facts from which the jury could ascertain what such assessment would probably have brought. It has been held under such policies that the plaintiff has either his legal remedy for damages upon a violated contract or an equitable remedy to compel the making of assessments, or the specific performance of the contract of insurance.” (O’Brien v. Home Benefit Society, 117 N. Y., 318.) We further concur with the learned justice that the proper judgment to be pronounced was of an equitable nature, directing that the claim of the plaintiff be included in the pool forming at the time of the entry of the judgment herein, and that the defendant pay to the plaintiff the sum realized.upon such assessment upon the plaintiff’s claim, not exceeding the sum of $3,000.

If these views are correct, it follows that the judgment appealed from should be affirmed.

.Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed, with costs.


author: Dwight, P. J.:

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    GERTRUDE DEAN, an Infant, by SAMUEL K. MUNGER, her Guardian Ad Litem, Respondent, v. MINERS RAPLEE, Appellant.

      Sape — declarations of the plaintiff made three yewrs after the assaxilt, are inadmissible.

    In an action by an infant to recover the damages resulting from a series of alleged indecent assaults accompanied by rape, covering a period of eighteen months, the plaintiff was permitted upon the trial to testify to declarations regarding such assaults, made by her three years after the last of them had taken place; during which three years she had lived with friends in another State, and it did not appear had made any substantial disclosure to any person relative to the assaults.

      Held, that her declarations, made after the lapse of three years, were too remote to be admissible in her favor.
    That the law presumed that a female thus assaulted woúld make quick complaint of the wrong to which she had been subjected.
    Appeal by tbe defendant, Miners Raplee, from an order of the Supreme Court, entered in the office of the clerk of the county of Wyoming on the 3d day of February, 1892, denying a motion for a new trial; also an apjieal from a judgment of said court, entered in the said clerk’s office on the 21st day of September, 1891, upon a verdict for the .plaintiff for $2,250, besides costs, after atrial at the Wyoming Circuit before the court and a jury.

      I. 8am Johnson, for the appellant.

      J. L. Woodvjorth, for the respondent.
   Dwight, P. J.:

The action was to recover damages for a series of indecent assaults, with rape, alleged to have been committed upon the person of the plaintiff, during a period of about eighteen months, while she ■ — ■ a girl of fourteen or fifteen years of age — was living in the family of the defendant. His house and farm buildings -were just across the highway from the home of her grandmother and aunt, with whom she had lived until she went to the defendant’s. The acts of rape, as testified to by the plaintiff, were most of them committed in one or another of the defendant’s barns, which were in plain sight and easy hearing distance from the defendant’s house and that of the plaintiff’s grandmother; but there was no outcry at the time, and no complaint either to the defendant’s wife or to her own relatives, during the continuance of the outrages, except that, after what she describes as the third violation of her person, she told her aunt that the defendant had kissed her, and, possibly, that he had taken some other slight liberties with her person. Certain it is that the disclosure was not so full or so serious as that her relatives hesitated to permit her to return after a few days to the defendant’s house, and resume the same relation as before. It would have been quite competent and material for the plaintiff to show, if she could, that she did disclose to the fullest extent, and bitterly complain of the alleged abuses immediately or at the earliest opportunity after their perpetration. To that extent in a case of actions for rape, whether civil or criminal, an exception is made to the general rule against hearsay testimony. So gross is the outrage, and so shocking to the sensibilities of a virtuous woman, that it is expected the innocent victim will make quick complaint of the wrong to which she has been subjected. But the same rule, which admits the evidence of such immediate disclosure and complaint, as positively excludes evidence of that which is unnecessarily remote. (The People v. O’Sullivan, 104 N. Y., 486; Baccio v. The People, 41 id., 265.) In the first of these cases the opinion of Judge Earl covers the whole ground and demonstrates very clearly the rule in both its bearings, and the reason of it. He quotes from Hale’s Pleas of the Crown (vol. 1, p. 632) the saying The complainant must make fresh discovery and pursuit of the offense and offender, otherwise it carries a presumption that her suit is but malicious and feigned.” He examines many cases and concludes: (iIt will be seen from these authorities that the very reason upon which the rule is based for the reception of such evidence requires that the disclosure should be recent, and made at the first suitable opportunity.” In that case the delay to make the disclosure was about eleven months, and after considering the causes which might operate to excuse delay, and the circumstances of that case, the court held that the delay of eleven months was so great and so unjustifiable that, as a matter of law, the disclosures should have been excluded as evidence, and that it was, therefore, error to receive it.

In this case no disclosure of the facts now testified to by the plaintiff, nor of anything of the kind, was made until after more than three years after the last of the alleged outrages in question. In the meantime the plaintiff had become nineteen years of age and upwards ; she had been three years continuously living with friends in another State, removed from the influence or fear of the defendant, and no circumstances are shown as existing during that time which can so excuse the delay as to render the fact of disclosure after that time admissible in evidence in her own behalf. Not that delay for any length of time to make the disclosure would be conclusive against the truth of the charge, but that it is only disclosure made at the earliest suitable opportunity of which evidence will be received in confirmation of the charge.

Under the doctrine so strongly enforced in the case of O’-Sullivan (supra), and supported by the cases there cited, we can have no doubt that the court erred in this ease in overruling the defendant’s objection to evidence of a declaration of the plaintiff made more than three years after the wrong complained of, and only shortly before her action was commenced.

And for that error the judgment and order herein should be reversed.

Macomber and Lewis, JJ., concurred.

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


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    CYNTHIA M. COVEY and Others, Appellants, v. WILLIAM R. COVEY, Administrator of MARY ANN COVEY, Deceased, Respondent.

      Executors and administrators — a reference under the statute is not a waiver of a misjoinder of parties.

    Five persons entitled in severalty, as legatees, to a remainder in certain personal property, presented a claim to the administrator of the person who had held the life estate for their shares in a part of said property. The claim did not show whether the interests of the claimants were joint or several.
    Upon a trial before a referee, to whom the claim had been referred under the provisions of the Revised Statutes, it appeared that the interests of the claimants were several, and the referee decided that the claimants could not maintain a joint proceeding for its recovery.

      Held,, that the decision was proper.
    That the objection was not waived by the fact that the administrator agreed to and did refer the claim.
    That as, in such a proceeding, no demurrer or answer is possible, a party may take an objection at the time when ground for it appears.
    Appeal by tbe plaintiffs, Cyntbia M. Covey, Asa W. Covey, Jehial Covey, Walter P. Covey and Nancy E. Harris, from an order of the Supreme Court, entered in the office of the clerk of the county of Cayuga on the 23d day of November, 1891, confirming the report of a referee and disallowing the claim of the plaintiffs, with costs.

      H. Greenfield, for the appellants.

      F. S. Goburn, for the respondent.
   Dwight, P. J.:

No question is made of any of the facts found by the referee ; accordingly no case was made, but the confirmation of the report was opposed on the ground that the facts found did not support the conclusions of law. The findings of fact wei'e to the effect that the plaintiffs were five legatees of a remainder of personal property — after a life- estate therein — which was to be divided equally between them; that the property included a horse which had been sold by the survivor of the life tenants, the avails of which remained a part of her estate at the time of her death, and was the subject of the claim in this proceeding against the defendant as her administrator.

The referee dismissed the claim on the ground that the plaintiffs’ cause of action was several, and not joint; that they had no joint interest in the recovery sought, and could not maintain a joint proceeding therefor. We suppose this conclusion was entirely correct. (Myers v. Cronck, 45 Hun, 404.) Counsel for the plaintiffs urge that the objection to their being joined, if it existed, was waived by the consent of the defendant to refer the claim as presented. But the fact that the claim of the plaintiffs was several, and not joint, did not appear on the face of the claim as presented, and the administrator, defendant, is not chargeable with knowledge of what the proof would be. There is in this special proceeding neither demurrer nor answer by which the objection could be taken. The defendant may await the developments of the trial and make his objections as the grounds for them appear*. When the fact appears that the claim of the plaintiffs was for their several shares of a sum of money in the hands of the defendant, the objection to their joint proceeding for its recovery was well taken and properly sustained.

The order appealed from must be affirmed.

Maoomber and Lewis, JJ., concurred.

Order appealed from affirmed, with costs.


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    JOHN HYATT, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant

      Railroads — when excused from fencing at depots and, ym'ds —what evidence presents a question of law for the court — Laws of 1854, chap. 383, sec. 8.
    A colt was at pasture in a field on the south side of the Alleghany river, which was at that place 280 feet wide and not fordable. Upon the north side of the river was the track of a railroad. The colt escaped from its pasture, went down the river half a mile to a ford, reached the north bank of the river, and finally came to a platform used by the railroad for loading its cars. The colt passed around the end of the platform, at a distance from it of eight or ten feet, through an opening required to be left unfenced for the convenience of shippers, reached the tracks, went down them a distance of 500 feet to a bridge, and was found dead on the bridge.
    Along the tracks, for this distance of 500 feet in length and about one hundred in breadth, there was no fence upon the river side, the space between the track and the river being used for storing logs.
    The particular space over which the colt passed in getting upon the track was necessary for the approach of teams to the loading platform.
    In an action brought by the owner of the colt against the company to recover its value, upon the ground that the company was required,' by section 8 of chapter 282 of the Laws of 1854, to maintain a fence at the place in question:

      Held, that, from the necessities of business, many places adjacent to railways, such as stations and shipping yards, were not subject to the statutory requirements relative to fences.
    That as the particular place over which the colt reached the track was necessary for the passage of teams loading and unloading at the platform, the company was not bound to maintain a fence there.
    That as the facts were undisputed, the question whether a fence should have been maintained at this place was one of law for the court, and that it was error to have submitted that question to the jury.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court entered in the office of the clerk of the county of Cattaraugus, on the 9th day of October, 1888, upon a verdict for the plaintiff for $219.34, after a trial at the Cattaraugus circuit before the court and a jury. Also from an order of said court entered in said clerk’s office on the 13th day of January, 1892, denying the defendant’s motion for a new trial made upon a case and exceptions; and also from a judgment of said court entered in said clerk’s office on the 14th day of January, 1892, denying said motion for a new trial.

      Oeorge F. Brownell, for the appellant.

      Ansley & Davie, for the respondent.
   Macomber, J.:

This action was brought under section 8 of chapter 282 of the Laws of 1854, which makes it the duty of every railroad company to erect and maintain fences on the sides of its roads, of the height and strength of a division fence; and further provides, that so long as the fences shall not be so erected and kept in good repair, the railroad corporation and its agents are made liable for damages, which may be done by the engines, or agents of the corporation, to any cattle, horses, sheep or hogs, upon the railroad. But the statute also provides that no corporation shall be required to fence the sides of its roads, except when such fence is necessary to prevent such animals from getting on the tracks, from the lands adjoining the same.

This action was brought in the year 1883, for the value of a colt found dead in a bridge crossing a creek, which was spanned by the defendant’s railroad, about five hundred feet east of the railway station of the defendant at Great Yalley, in Cattaraugus County. The allegation of the complaint was, that the colt had passed over and upon- the railroad track of the defendant for want of a cattle-guard at a roadway crossing, just east of the railway station, and through the omission of the defendant to erect a proper fence along its tracks on the south side thereof, easterly of such roadway.

The point is made by the learned counsel for the appellant that the only charge against the defendant in the complaint, was the omission to erect cattle-guards upon this highway. On inspection of that pleading, however, it will be seen that while the language of it is somewhat ambiguous, yet it is susceptible of the construction which the learned justice at the trial placed upon it. There is, therefore, in our judgment, no sufficient ground stated for the reversal of the judgment and order for want of a sufficient pleading, although the colt, it is shown, passed upon the railway track, not upon the highway, but easterly thereof, as hereinafter stated.

The defendant’s railway at Great Yalley station runs nearly parallel to the north bank of the. Alleghany river, at a distance therefrom varying from one hundred and eighty feet,.at-the bridge ■where the colt was found, to one hundred feet, measured at the railway station. This colt, with three horses owned by the plaintiff was pasturing on the south side of the river, and was so separated from the lands immediately adjacent to the railway by the width of the river, which is shown to be at that point 280 feet. There existed a saw-mill between the river and the station, around the southerly end of which the roadway above mentioned passed. Between the saw-mill and the main track of the railway there was a long platform for loading lumber, which, according to the map in evidence, is something over three hundred feet in length, and which came, at the eastern end thereof, within about fifty feet of this roadway. To the east of the roadway and of the saw-mill there was a mill office, so-called. Between this mill office and the railway, and on the east side of the roadway, was a loading platform which was used for all shipping purposes, except for the loading of lumber, which was done on' the platform on the west side of the roadway. The space between the roadway to the east, for a distance of about five hundred feet, it was shown by several witnesses, was occupied as a sort of a mill-yard for the storage of saw-logs. The plaintiff himself testified that the soil there was rotten • that it was a mill-yard, with chips and saw-dust, coal and cinders, and such like all along the south side of the platform. This colt and the three horses, being pastured on 'the south side of the Alleghany river, broke from their pasture and wandered to the west for about a half a mile and then crossed the river at a fording place and came upon the lands in the vicinity of the saw-mill, on the north side of the river, and thence traveled north-easterly, past the mill office and immediately to the east of the loading platform, a distance of about one hundred feet from the roadway. They then passed upon the first track of the defendant, which was used as a switch track for the purpose of bringing cars loaded with lumber from the platform for loading lumber connected with the saw-mill, and from that point wandered to the east, apparently grazing, and came near to this railroad bridge spanning the creek, which empties into the river, where three of them turned off from the track, while the one that was killed was either hit and thrown by an engine of the defendant and lodged between the beams of this bridge, or voluntarily, without being hit, made a plunge into the bridge where it was found dead in the morning, after the escape from the pasture on the south side of the river. This bridge is 500 feet east of the railway station. The lumber-switch track runs east of the station about two hundred and fifty feet. There is another switch on the north side of the main track, on the north of the railway station, called the back-switch, which comes into the main track at a distance of about seventy-five or eighty feet from the bridge.

The loading platform is about ninety or a hundred feet in length. The learned justice at the trial properly construed these statutes as not requiring the erection, by the defendant, of fences where the same were not necessary for the purpose of turning horses, cattle, sheep and hogs from the railway lands. But the question of the necessity of the erection of such a fence at the place where these horses were shown to have passed upon the railway lands was ubmitted to the jury.

From the necessity of business, many places adjacent to railways, such as railroad stations, shipping yards and the like, were evidently not contemplated by the legislature in the statute above mentioned, as was decided in the case of Dolan v. N. D. and C. R. R. Co. (120 N. Y., 571).

"Where the facts are undisputed, the question of erecting a fence at such points is one of law, and we think it was incumbent upon the .Circuit Court, in this instance, to decide it as a question of law, and not to have submitted it to the judgment of the jury as a question of fact. At the place where the horses passed upon the railway lands, which was within a space of five or ten feet from the east end of the loading platform, it is shown that the business of the corporation required that there should be this open space unfenced, for the purpose of serving the public conveniently in permitting the free access of shippers in approaching and departing from the loading platform with their teams. Between this platform and the railway bridge where this horse was found dead, a distance of about four hundred feet, the space, it was shown by entirely credible evidence, bad been, before and after this accident, used by the company for the storage of saw-logs. Between this storage place and the pasture on the south side of the Alleghany river, from which the horses escaped, was what would apparently be considered an insurmountable obstacle to tbe escape' of the horses from tbe south side of the river.

There is evidence from which we may derive the conclusion that immediately opposite the place where these horses passed upon the railway company’s lands the river was not fordable, for it is shown that the horses wandered to the west to a ford for about half a mile to a point where they escaped from the pasture The jury, therefore, as it seems to us, had no lot or part in the decision of this question, for it was not for them to speculate as to whether, if a fence had been erected to the east of the loading platform, the horses might not have gone upon the defendant’s land.

It is very doubtful whether or not, under this evidence, the colt was, in fact, struck by a locomotive. It is clear that, under this statute, if he was merely frightened by the approach of the engine, and plunged upon the bridge and there met his death without being struck by the locomotive, no recovery could be had in this action. The learned justice, in denying the motion for a new trial, admits that the animal, when found in the morning, showed no marks of a severe concussion with the locomotive, though there is a suggestion, not proof, in some of the testimony that his neck was broken. The position of the colt, which was lengthwise of the bridge, would go far to show that he had not been thrown there by the pilot of the locomotive, but that he was so caught within the timbers from a voluntary plunge. Although this is one view of the evidence, as it is spread upon the record before us, we should hardly, however, feel inclined to reverse the judgment upon this ground alone, for there was some evidence from which a deduction, not unreasonable, might be made, that, inasmuch as none of his tracks were found for a space of- about eight or ten feet west of the bridge, the colt was carried that distance by the locomotive. But for the reason that, under the evidence, there was no duty laid upon the defendant to fence the railway at the point upon which the horses passed upon its land, we think the judgment and order should be reversed and a new trial granted.

Dwight, P. J., and Lewis, J., concurred.

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Respondent, v. WILLIAM H. CLAPP and Others, Assessors, and CHARLES H. MILLER, Town Clerk of the Town of York, Appellants.

      Taxation — am, assessment^roll, which on review day is in several parts, is sufficient if subsequently engrossed, put together and verified.

    Objection was made to the validity oí an assessment, for the reason that when the assessment-roll was first made it was in three parts; that it so remained when inspected by a taxpayer on review day, and that afterwards the three parts were engrossed and made into a single roll, which was then verified as the completed roll.

      Held, that there was not in these facts any failure to comply with the statute (1 R. S., m. p. 390, §§ 8 et seq.) which would vitiate the assessment.
    That there was nothing in the statute forbidding the assessment-roll to be in parts on review day.
    That if the contents of the roll, as completed and put together, did not differ from the roll as shown on review day, except by changes made in accordance with the statutory provisions by the assessors on or after the review day, the requirements of the statute were met.
    Appeal by the defendants, William H. Clapp, James Stewart and Alexander Reid, as Assessors, and by Charles H. Miller, as Town Clerk of the Town of York, from a final order of the Supreme Court, entered in the office of the clerk of Livingston county on the 23d day of November, 1891, declaring void an assessment against the real property of the relator appearing upon the assessment-roll of the town of York for the year 1891, and directing that the same be stricken therefrom.

      J. B. Adams, for the appellants.

      G. J. Bissell, for the respondent.
   Dwight, P. J.:

The court at Special Term adjudged the assessment in question void for irregularities in the proceedings of the assessors, without considering the question of the jurisdiction of the assessors to make any assessment against the relator. The latter, which seems to us the important question, has been considered by us in a case argued at the same term, and decided adversely to the relator’s contention. (See The People ex rel. D., L. and W. R. R. Co. v. Reid et al., opinion-by Lewis, J.*) This leaves to consider, in this case, only the objection which was sustained at the Special Term, and was the basis of the order appealed from, viz., of irregularity in the making up of the assessment-roll.

Briefly, the facts upon which the objection is based are, that the roll was first made in three parts; that it was so on review day, when it was inspected by the relator, which was duly heard to complain that the valuation of its property was excessive, and a very substantial reduction was made in such valuation; and that afterwards the three parts of the roll were engrossed into a single roll, which was duly verified, as the completed roll, by the assessors and delivered to the supervisor of the town.

With the statute before us we are unable to discover any substantial departure from the letter, even, still less from the spirit, of the law in the method of making up this roll. The statute (1 B. S., 390, § 8 et seq.; Birdseye, p. 2963, §61 <sz5 seq) provides that between the first days of Maj^ and July in each year the assessors shall proceed to ascertain the names of all the taxable inhabitants, and also all the taxable property, real or personal, in their respective towns (§ 8 [Birdseye, § 61]); that they shall prepare an assessment-roll in which the matters thus ascertained shall be set down in four columns, viz., names, quantity of land, full value of land, full value of pei> sonal property (§ 9 [Birdseye, § 62]); that they shall complete the assessment-rolls on or before the first day of August in each year and make out one fair copy thereof to be left with one of their number (393, § 19 [Birdseye, 2965, § 70]); that they shall give notice, in the manner prescribed, of the fact that the assessment-roll is so completed and deposited at a place specified, where it may be seen and examined by any person interested, until the third Tuesday of August, and that on that day they shall meet at a time and place specified, to review their assessments (§ 20 [Birdseye, § 71]). The last mentioned section also prescribes the duties of the assessors in respect to hearing, examining and determining all complaints in relation to such assessments that may be brought before them.

A subsequent section of the statute (Birdseye, 2966, § SO), provides that “ when the assessors, or a majority of them, shall, have

Reported, post, p. 553. completed their roll” they shall verify it in the form prescribed. By the terms of that verification it appears that the completed roll here mentioned is not in all respects the completed roll mentioned in the former section (Birdseye, § 70, supra), for that roll was to be completed on or before the first day of August, whereas this roll must embody the corrections made on the review of the first completed roll, and that review is to begin on the third Tuesday of August, and may be continued by adjournment from time to time till the first day of September, on or befoi’e which day the verified roll must be delivered to the supervisor of the town. (1 R. S., 394, § 27; Birdseye, § 73.)

There is nothing in any of these provisions of the statute which requires that the roll, as originally completed for review, shall be made out in a single volume or upon sheets of paper attached together, or which forbids that it should be made out in parts or upon detached sheets, which when brought together constitute the roll, completed for purpose of review; least of all is there anything to forbid the re-engrossment of the roll after the corrections of review day. There is a time, no doubt, when the assessment-roll must be in one, a single volume or collection of sheets united together, and that is when the roll is jmalT/y completed, after all corrections are made and when the verification is attached thereto.

It is undoubtedly the intention of the statute that the roll first completed for revision should be the same in every particular as to its contents as the roll finally completed for verification, except for the changes made on review; and this, which is the one essential requirement of the statute in respect to the identity of the roll, was in no particular violated in this case. There is nothing to show that a name or an item of property, real or personal, was added to or subtracted from the roll completed on or before the first day of August; nor that the valuation of property in any instance was changed except in accordance with the determination by the assessors of complaints duly made upon the day advertised for review. Certainly, so far as the assessment of the relator is concerned, the roll remained the same from the day of its first completion until, upon the application of the relator on the review day, the valuation of its property in the town of York was reduced from the sum of $612,360 to the sum of $437,400.; and at that sum it remained in the engrossed roll which was verified by the assessors and delivered to the supervisor of the town.

The view which we have taken of the intent and purpose of the several provisions of the statute obviates the inquiry whether any one or another of those provisions is directory or mandatory since we have found them, one and all, to have been substantially complied with in the case of the roll in question. It is apparent, as we have seen, that the statute contemplates that the roll shall be twice “ completed,” once for revision and once for verification; and the only substantial requirement in respeet to the identity of the two rolls is that they shall be in all respects the same as to their contents, with the exception of changes made on review.

We find no evidence of any irregularity in the assessment-roll, or in the method by which it was made and completed, which can in any manner invalidate the acts of the assessors or the result of their labors.

The order appealed from should be reversed and the assessment confirmed.

Macomber and Lewis, JJ., concurred.

Order appealed from reversed, with costs of the appeal, and the assessment confirmed, with costs.


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    PHINEAS V. HAWLEY, as Executor of ROYCE R. CALLISTER, Deceased, Respondent, v. BRIDGET WHALEN, Appellant, Impleaded with Others, Defendants.

      Foreclosure of a mortgage — entry of a deficiency judgment before confvrmation of the referee’s report of sale —jurisdiction of the County Court where the judgment exceeds $1,000 — State Constitution, ae’t. 6, sec. 15; Code of Ciml Procedure, sec. 340, sub. 1.
    Upon the foreclosure of a mortgage, by action, in a County Court, a judgment of foreclosure and sale was entered directing that any deficiency arising on tlie sale should be paid by Bridget Whalen. A deficiency having arisen on the sale, judgment for the amount of the deficiency, exceeding one thousand dollars, was entered against Bridget Whalen before the referee’s report of sale was confirmed.

      Held, that, after it appeared from the report that a deficiency had arisen, the plaintiff was entitled to enter a judgment, and issue execution thereunder, without application to the court or giving notice to the defendant.
    That the provisions of section 15 of article 6 of the State Constitution, limiting the original jurisdiction of County Courts to cases in which the damages claimed do not exceed $1,000, were controlled by the last clause of the section, which states that “they shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.”
    That as the legislature has conferred upon County Courts jurisdiction to entertain an action for the foreclosure of a mortgage without limitation as to the amount involved (Code of Civil Pro., §340, sub. 1), such a court may grant a deficiency judgment for any amount, although it may exceed one thousand dollars.
    Appeal by the defendant Bridget Whalen from an order of the Monroe County Court, entered in the office of the clerk of said county on the 25th day of November, 1891, denying a motion to vacate a judgment against her for a deficiency upon the foreclosure of a mortgage.

      D. O. Feety, for the appellant.

      G. F. Wa/mer, for the respondent.
   Dwight, P. J.:

The case of Moore v. Shaw (15 Hun, 428, appeal dismissed, S. C., 77 N. Y., 512), the authority of which seems to be unquestioned, is apparently an answer to most of the allegations of irregularity contained in the defendant’s notice of motion. Under the doctrine of that case, the final judgment of foreclosure and sale having adjudged that the defendant Bridget Whalen pay any deficiency which might arise on the sale, and it appearing by the referee’s report of sale that a deficiency had arisen and the amount of it, the plaintiff was entitled to issue execution for such deficiency against the defendant named, without any further application to the court or notice to the defendant. The fact, however, that judgment for the deficiency was entered and docketed can be no objection to the plaintiff’s proceedings ; it was in accordance with the usual and approved practice, and was, no doubt, necessary to effect a lien upon real estate of the defendant. The omission to serve a copy or give notice of the filing of the report of sale was not specified among the irregularities complained of in the defendant’s notice of motion.

The statute of limitations affords no ground of relief to the defendant; that statute has no 'application to proceedings in an action which has been once duly commenced. The objection that the amount of the deficiency, for which judgment was entered, exceeds the jurisdiction of the County Court is based upon the provision contained in section 15 of article 6 of the Constitution of this State, which reads as follows:

The County Courts shall have the powers and jurisdiction they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendants reside in the county and in which the damages claimed shall not exceed $1,000. * * * They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.”

Here it is apparent, from the language employed, that the limitation to $1,000 relates solely to the class of common-law actions — whether on contract or sounding in tort — for the recovery of money only; and that, subject to that limitation, the legislature may confer upon the County Courts jurisdiction in any and every class of actions, without regard to the extent or value of the property or rights to be affected thereby. (Buckhout v. Rall, 28 Hun, 484.) The legislature has, accordingly, conferred upon those courts jurisdiction of the action to foreclose a mortgage, without limitation in respect to the value of the property mortgaged or the amount of the obligation to be enforced. (Code of Civ. Pro., § 340, sub. 1); and it has, moreover, provided that “ where a County Court has jurisdiction of an action * * * it possesses the same jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, which the Supreme Court possesses in a like case; and it may render any judgment or grant either party any relief which the Supreme Court might render or grant in a like case.” (Id., § 348.) Under this provision of the statute there can be no question of the authority of the County Court to render a judgment for any deficiency which may arise in any action of foreclosure of which it has obtained jurisdiction. The judgment for a deficiency is necessarily an incident to the action of foreclosure, because the very existence of the deficiency and the amount of it is dependent upon the proceedings in the action.

The judgment in this case seems not to be obnoxious to any well-founded objection to the jurisdiction of the court or the practice in the action. The order appealed from should be affirmed.

Macomber and Lewis, JJ., concurred.

Order of County Court of Monroe county appealed from affirmed, with ten dollars costs and disbursements.