text:
    Amelia M. Millard, Appellant, v. Otis G. Clark and Another, as Executors, etc., of Orange R. Young, Deceased, Respondents.

      Deposit made “ subject to the control” of a father in the name of his child- — trust created thereby — determined by surrounding circumstances — trust of personal property, how created.

    Where a father’s control over money is in the capacity of a trustee for his child, the reservation in the father of the control thereof is not fatal to the creation of a trust; nor is the retention by him of the bank books representing the deposit of the. money necessarily fatal to the creation of a trust. The retention and possession of the instrument by which a person created a trust in himself until his death does not render the trust ineffectual.
    Where a deposit is made in a bank by one person in the name of another, “subject to the control ” of the person making the deposit, such words do not import the retaining of ownership or title to the money, but simply the management thereof, which, coupled with the declaration of the person making the deposit as to the ownership of the money, and the purpose for which it was being kept, is open to the interpretation that the person, acting as custodian or trustee of the money of the person in whose name it was deposited, retained only such legal rights in regard to the same as were held by him as trustee.
    A trust of money or personal property can be created under which the author of the trust is the trustee.
    A formal or written agreement is not necessary to create a trust of money or of any personal property ; any declaration, however informal, evincing the intention with sufficient clearness will have that effect.
    The refusal of a parent to turn over certain money on deposit in his child’s name, and subject to the parent’s control, or a portion of it, to her, coupled with the statement that “ after his death she might need the money more than while he lived, and he would keep it so that she would then have something,” does not deprive such money of its character as a trust fund, nor does a withdrawal of a portion of such amount and its reinvestment in bonds and mortgages in the name of the parent, without the knowledge of his child, change the legal relation between them in regal'd to such trust fund.
    Where money is deposited in a bank by one person in the name of another, subject to the control of the person depositing tlie same, and the bank book is kept in the possession of tlie person depositing the money, the money so deposited may be recovered by the person for whom it was designed to be held in trust. The form of the deposit does not of itself determine the question as to whether or not a trust was created ; surrounding circumstances may be resorted to in determining what was intended.
    Appeal by tlie plaintiff, Amelia M. Millard, from a judgment of the Supreme Court in favor of tlie defendants, entered in tlie office of tlie clerk of tlie county of Rensselaer ontbe 9th day of February, 1894, upon tlie decision of the court rendered after a trial at the Rensselaer Special Term dismissing the plaintiff’s complaint upon the merits.

      Edwin A. Kvng, for the appellant.

      H. D. Bailey, for the respondents.
   Herrick, J.:

The appellant and the respondent Ella J. Williamson are the daughters of one Orange R. Young, deceased. The appellant was born in 1848 ; she and her sister are the only issue of their father. Until their respective marriages both resided with and were supported by their father.

In 1886 their father remarried, and his widow survives him.

It appears that while quite young each of the children was possessed of a child’s savings bank, in which she placed the pennies and small change received from her parents and friends.

In. February, 1858, the appellant’s father opened an account in the Central Savings Bank of Troy in her name and received a pass bank book made out in her name, and from time to time deposited other money upon such account, and it appears that he took money from the child’s savings bank and deposited it in said Central Savings Bank.

He told her that he had started a bank account for her, and occasionally showed it to her, but never delivered the bank book to her to keep herself. * Deposits were made from time to time, frequently of very small sums, such as might well be the savings of a child. He remarked, in referring thereto, that he thought it was a good idea to learn them to save their pennies; they would be more liable to save their money when they grew up.”

On or about August 12, 1864, on the birthday of the appellant, her father told her that he would give her a present of $100, and put it in the bank for her; she wanted the money herself, and he told her that he would let her take it for a while, but that she must return it, and he would put it in the bank for her; he handed her the money, and she retained it for part of a day, and then returned it to her father, and he deposited it to her credit in the Troy Savings Bank, subject to his control, and opened an account, which was subsequently increased by various deposits made by him, and by the interest earned by it.

In October, 1818, the account in the Central Savings Bank, with the accumulated interest, amounted to the sum of $349.91. About that time said bank ceased to do business, and the account was transferred and made a special deposit on interest in the Central National Bank of Troy, subject to the cont/rol of her father, the said Orange R. Young. The account as it theretofore had been in the Central Savings Bank had been subject to no such limitation, but was simply deposited in appellant’s name.

These bank books were shown to the plaintiff from time to time, and she was told by him of the money she had in the bank, which he was constantly increasing for her until his death.

From the time of the opening of said accounts they were often mentioned in the family, and it was often stated by appellant’s father that they were appellant’s property, and that at his death she could have them. The appellant and her father had frequent conversations relative to them, and at some of such conversations the appellant urged her father to turn over the accounts to her, but he refused to do so, stating that after his death she might need the money more than while he lived, and he would keep them, so that she then would have something, and that when he died she would not be ashamed of the amount in the bank.

Similar accounts were opened and kept in the same way for the benefit of his other daughter.

On or about May 2, 1889, her father withdrew from the two accounts about the sum of $1,800, which he invested in bonds and mortgages, one for the sum of $1,300 and the other of $500.

The assignments of such bonds and mortgages were made out in the name of Orange R. Young. On the $1,300 bond said Young pasted a paper bearing in his own handwriting the words following :

“ This real estate bond of $1,300 is for my daughter Amelia M. Millard. It is the money she had in the savings bank to her credit, which was put in the bank when she was small. I now put it in this form so that she can realize more interest. At my death this is to go to her. This bond is dated April 1st, 1889.

“Troy, If ay 2nd, 1889. O. R. YOUNG.”

The bond of $500 had a paper attached to it in the same words, excepting the description of the amount of said bond.

The moneys received from time to time as interest upon such bonds were deposited by her father to the credit of the appellant, subject to his control, in the Central National Bank, to the credit of the account already referred to.

The $1,800 withdrawn from the accounts and invested in the-bonds and mortgages referred to, was withdrawn and was invested without the knowledge of the appellant.

Orange R. Young died in March, 1892, leaving a will, whereiu the respondents were appointed executors, and whereby he disposed of his estate, among other things, creating a trust of a portion thereof for the benefit of 'the appellant and her children.

Nowhere in the will was any specific mention made of the bonds and mortgages or of the accounts in the savings banks hereinbefore referred to.

The appellant made a demand of the said executors for the. delivery to her of tbe bank books containing tbe accounts in tbe said savings banks, and of tlie above-mentioned bonds and mortgages, which was refused, whereupon she commenced this action to compel the delivery thereof.

At the close of the evidence the court dismissed the plaintiff’s complaint, with costs. From the judgment entered thereon this appeal is taken.

There is no conflicting testimony in the case; the only questions are those of fact arising from the different inferences to be drawn from the undisputed evidence in the case and the questions of law arising therefrom.

Yarious exceptions were taken by the appellant to the findings of fact and law and the refusals to find by the trial court.

It will be only profitable, however, to call attention to the three following requests to find matters of fact, to wit:

Seventh. “ From the inception of said respective accounts until the death of said Young, March 14th, 1892, said accounts were frequently discussed by and between plaintiff and said Young, and in the family of said Young, and said pass books were often seen, and occasionally examined by plaintiff, and that it was often and commonly stated by Young, and understood that said accounts and books were the property of plaintiff, and by said Yovmg held expressly for her, and were to pass i/nto her possession and control %t his death?

The court modified such request to find by striking out the italicized words and inserting instead the following:

To belong to the plaintiff \ cmd were to pass i/nto her possession :md control at his death? To which modification the appellant jxcepted.

Eleventh. “ Said Young intended said accounts, bonds, mortgages and fund to be, and he held and managed the same solely and sxelusively, for the benefit of this plaintiff.” Which the court ■efused to find. To which the appellant excepted.

Twelfth. “Said Young neither made, nor intended to make, any estamentary gift or disposition of said accounts, bonds, mortgages >r fund.” Which request the court likewise refused, and to which ppellant excepted.

"With great respect for tbe learned justice before whom the case was tried, it seems to me that lie erred in tbe inferences of fact that lie drew from tlie testimony in this case.

Most of the facts and the evidence thereof were agreed upon between the parties; some of the evidence was documentary ; the oral testimony is very limited, so that I have less hesitation in differing from the trial justice as to the facts than I would in a case where all the facts are dependent, or largely dependent, upon oral testimony, where the trial court has an opportunity to observe the witnesses, their demeanor and manner of giving testimony, which afford him greater facilities for arriving at a conclusion as to who is telling the truth, and as to what the real facts are, than are possessed by the appellate court, which does not see or hear the living witnesses.

It appears here that the bank account was originally started from gifts made to appellant by her father and other persons, which she had deposited in her child’s bank; and that moneys taken from her savings bank continued to be deposited from time to time by her father; that the deposits so made' in the savings bank were in her name; that she was told by her father that he had started a bank account for her, and the moneys so deposited were spoken of by him from time to time to her and in the family, and to others, as her property, not as property or money that was to be hers at some future time, but as money that was then hers.

The written memoranda made by him, and attached to the bond, recognizes the money, with which such bond was purchased, as her money. “ It is the money she had in the savings bank to her credit, which was put in the bank when she was small. I now put it in this form so that she can realize more interest.”

This is a recognition that the money was and had been for some period of time her money, not that she was to become the owner of it at some future time, but that she was then the owner of it.

This case differs in essential particulars from the case of Beaver v. Beaver (117 N. Y. 421; 137 id. 59), and, indeed, from all the cases to which I have been referred, where moneys have been deposited in the bank by one person for the benefit of another.

In the Bemer case the father deposited his own money in the savings bank in his son’s name, but retained possession of the bank book himself, and never spoke of it or in any other way recognized it as belonging to his son ; the only sum that was thereafter drawn from the bank until after the father’s death was drawn by the father himself. The son died about twenty years after the deposit was made, never having known anything about such deposit having been made in his name, and in the meantime having opened an individual account in the same bank in his own name, and it was held that these circumstances did not show a gift or establish a trust for the benefit of the son.

In the case before us the account was opened by a deposit composed entirely or in part of the accumulated savings of the appellant, then a child, of moneys which she had received from her parents, and other persons ; it was in her own name, not subject to the control of any one, and it remained so on deposit, without any limitation or restriction upon it, for a period of twenty years; it was so deposited with her knowledge; she saw the bank book from time to túne; it was talked of by her father to her, and to and in the presence of the family and others, as her money; her savings continued to be taken and deposited from time to time to such account.

The money which had been given to her by her father and other persons, before it was placed in the savings bank, was hers; that stamped the character of the account from the beginning as an account composed of her money; not money that was to be hers thereafter, but of money that was hers and had been hers prior to its deposit. The money that was contributed thereafter by the father, by placing it in the bank without its previously going through her hands, constituted a gift to her; it became part and parcel of her account; it became a part of her money; was so intended by the father, and that intent was effectuated by placing it with that which was theretofore hers. A very large proportion of the account consisted of accumulated interest upon the deposits, which was also hers.

The other account, the one opened in the Troy Savings Bank, was opened by a deposit of $100. The $100 was presented to her as a birthday gift, and was for a time, although for a short time, in her physical possession and control, delivered to her by her father, and returned by her to him to be deposited in the savings bank for her; that was an absolute gift; all that was necessary to constitute a valid gift was done; there was an actual manual delivery by the donor to the donee. When that money was deposited in the savings bank it was the appellant’s money that was deposited, not the money of her father; the account was opened with her money deposited in her name; that stamped the character of the account in that bank.

The accretions that were made to it by the accumulation of interest, by deposits of her money, by the deposits by the father of moneys belonging to him in. the same account, did not change the character of the account, but the account impressed its character upon the money so deposited, and rendered the account one of money belonging absolutely to the appellant.

The money in both banks was recognized by the father as money belonging to his child, money that was absolutely hers, but money that he retained the control of until the time that she would need it most.

The deposit in the Central Savings Bank was there about twenty years after the account was originally opened, and was then placed in another bank in the name of the appellant, subject to the father’s-control.

It must be borne in mind that it was her money whose place of deposit was being changed; his control over it was that of a trustee for her, and the reservation in himself of the power of control was. not fatal to the creation of a trust. (Van Cott v. Prentice et al., 104 N. Y. 45; Locke v. F. L. & T. Co. et al., 140 id. 135-142.)

The retention by him of the bank books under the circumstances was not fatal to the -creation of a trust; the fact that he retained possession of the instrument by which he created a trust in himself until his death does not render it ineffectual. (Martin v. Funk, 75 N. Y. 134; Cunningham v. Davenport, 74 Hun, 53.)

In the case of Von Hesse v. MacKaye (136 N. Y. 114) the-intended donor placed bonds in the hands of a trustee for the sole benefit and behoof of his daughter, with the proviso that such bonds-were to be subject to the order of the father for and during his life. Subsequently he withdrew some of the bonds from the trust, but yet it was held that the reservation of power and control over the-bonds did not invalidate it, the court saying : “ But few things are better settled than that the reservation of such a power is entirely consistent with the trust and does not work its destruction where, the rights of creditors are not involved.”

It seems to me tliat in view of these decisions the trial court was in error in holding that ££ to establish a trust it must appear that no power is left in the settler to revoke it, or to defeat its effect by any different disposition of the property,” and in holding for that reason that no trust had been established.

The words “ subject to the control of Orange R. Young,” do not import the retaining of ownership or title, but simply the management thereof, which, coupled with his declaration in this case as to the ownership of the money and the purpose for which it was being kept, it seems to me admit of no other interpretation than that he was acting as the custodian or trustee of her money, and that such legal rights as he retained were held by him as trustee.

A trust of money or of personal property can be created by which the author of the trust is the trustee. (Locke v. F. L. & T. Co. et al., 140 N. Y. 135-141.)

A formal or written agreement is not necessary to create a trust of money or any personal estate; any declaration, however informal, evincing the intention witli sufficient clearness, will have that effect. (Day v. Roth, 18 N. Y. 448-453.)

The refusal of the appellant’s father to turn over the money, or a portion of it, to her, coupled with this statement that l£ after his death she might need the money more than while he lived, and he would keep it so that she would then have something,” did not deprive it of its character as a trust fund, but rather emphasized the manner in which he held it. (Mabie v. Bailey, 95 N. Y. 206-210.)

It has been held time and again in the case of money deposited in a bank in the name of one person in trust for another, as B. Bailey in trust for Ida Mabie,” and the bank book kept in the possession of the one depositing the money, that the money so deposited can be recovered by the person for whom it was designated to be held in trust. (Mabie v. Bailey, 95 N. Y. 206. See, also, Willis v. Smyth et al., 91 id. 297; Fowler v. Bowery Savings Bank, 113 id. 450; Cunningham v. Davenport, 74 Hun, 53.)

What difference is there in principle between moneys deposited to account of ££B. Bailey in trust for Ida Mabie,” and moneys deposited to account of ££ Ida Mabie, subject to sole control of B. Bailey.”

In each the beneficial interest is in Ida Mabie; in each the management and control of it is in B. Bailey. The form of the deposit does not of itself determine the question, but surrounding circumstances may be resorted to to determine what was intended.

In the Mabie Case (95 N. Y. 206) Bailey deposited his own money in trust for Mabie ; in this case it was the appellant’s money or a poition of it. Again, Bailey exhibited the pass book to Ida Mabie’s mother, together with pass books containing accounts for the benefit of her other children, and, without stating the amount of the several deposits, informed her that the deposits for the children were large enough to amount to something when they grew up. And in reply to her question, "Why he could not let us have the money now,” replied, It would do us more good hereafter.”

The subject of the deposits was spoken of by Bailey on several occasions in which the jirovisions made for Mabie and other members of the family were recognized. It will be seen that the circumstances of that case were singularly like those in this.

■ The court said: These facts * * * confirm the proof, furnished by the bank books and pass book, of the creation of a trust, and exclude "the supposition that the transaction was not intended to be that which the written evidence unexplained imports.”

Subsequently the deposit was withdrawn by Bailey during his lifetime, and yet Ida Mabie was held entitled to recover the amount from the executor of Bailey’s estate, the court saying: “ If the withdrawal was with the intent on his part to ignore the trust, and convert the money to his own use, it might be competent evidence of a change of purpose, but it throws no light on the original transaction.”

The withdrawal of a portion of the money deposited in this case, and the investment of it in bonds and mortgages, the title of which was taken in the name of Young, without the knowledge of the appellant, did not change the legal relation in the least, but coupled with the written declaration that he attached to them, and which I have before adverted to, rather strengthens the evidence of the relations between them, and containing an explicit declaration that the money with which the bonds were purchased belonged to the appellant, and that he had changed the investment, not for his interest, but for hers, that she might derive more interest, and this followed up by his subsequent acts in depositing the interest received upon the bonds and mortgages to her account, all furnish additional evidence that the money was the appellant’s, and that the control that he exercised over it was not that of one having or claiming title to it, but simply of one holding and managing it for her benefit. The case of the bonds and mortgages in question here differs greatly from that of the bonds and mortgages in question in Matter of Crawford (113 N. Y. 560), andin Wadd v. Hazelton (137 id. 215). In the Orwwford case the bonds were purchased with the intended donor’s own money; he kept them in his own possession; he drew the interest himself and used it for his own benefit; there was never at any time any recognition by him that the money with which the bonds were purchased belonged to Mrs. Crawford, or that the bonds were hers, but simply that he intended that they should be hers after his death.

So in the Wadd case, the mortgage was purchased with the intended donor’s own money, and an assignment made out to the proposed beneficiary, but never acknowledged or recorded, but deposited with the testator’s own papers, and never at any time was there any statement that the money with which the mortgage was purchased belonged to the intended beneficiary, or that the mortgage itself belonged to her —simply an intention that it should belong to her after his death. In both cases the beneficial interest in the bonds and mortgages were retained by the intended donors in themselves; they drew the income from them for their own benefit during their lives.

Here, as we have seen, Young invested appellant’s money — money that he avowed to be liers — retaining no beneficial interest in it, or in the bonds and mortgages for himself, but turned the income thereof into the account of the appellant.

It seems to me, therefore, under all the circumstances, that the money deposited in both savings banks must be regarded as the appellant’s own money; that the gift thereof, ^o far as it was originally derived from her father, was completed by actual delivery, some of it into her hands, the rest into her bank account, consisting of her money, and that as to the money that still remains in the savings bank it must be regarded as absolutely hers, and as to that which was withdrawn, without her knowledge, and invested in bonds and mortgages, such investment must be held to have been made for her benefit, and such bonds held by her father as her trustee.

It follows, from these conclusions, that the judgment of the trial court should be reversed ; there being no conflict of testimony in the case, I do not see that there is any occasion for a new trial, and the judgment is, therefore, reversed, and judgment ordered for the plaintiff, with costs of trial in the court below and with costs of this appeal.

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

Judgment reversed, with costs.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

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

      Duty of a railroad company to its employees — neglect thereof does not warrant an employee in rushing into a dangerous position — vigilance required of an employee woi'Mng a/mong railroad cars.

    A person who enters the employment of a railroad company and continues in such employment, rendering services therein without objection or complaint, assumes the ordinary risks incident to the service, but the company cannot . rely upon such assumption of risks on the part of the employee, unless it takes reasonable precautions to insure his safety while in the performance of his duty.
    It is a duty which a railroad company owes to its employees, to inspect the cars and ascertain their fitness for service, and its duty in such respect is measured by the danger to be apprehended and avoided. Such an employee owes a duty of care and prudence to himself and to his employer, which is also to be measured by the dangers of the place where he is at work and the risks to be encountered.
    The fact that the company is neglectful of its duty does not warrant the employee in rushing into a palpably dangerous position.
    Working with and among the cars of a steam railroad is necessarily a dangerous employment and demands on the part of an employee thus engaged active vigilance to avoid danger to the same degree at least as is demanded of a traveler along a highway approaching a railroad crossing.
    When .the failure to see that a caris defective constitutes contributory negligence.
    Appeal by tlie defendant, The New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of the county of Albany on the 21st day of December, 1893, upon the verdict of a jury rendered after a trial at the Albany Circuit, with notice of an intention to bring up for review on such appeal the said judgment and an order entered in said clerk’s office on the 21st day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Hamilton Harris, for the appellant.

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

This is an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum of $5,386.11, damages and costs.

The action is on account of injuries received by the plaintiff in attempting to couple cars in the freight yard of the defendant at "Weehawken on the 21th day of January, 1892.

The plaintiff was employed by the defendant as a brakeman, and he had been so employed for about a month, working the most of the time in the freight yard at Weehawken, making and breaking up trains and placing cars; in performing such services it was his duty to couple and uncouple cars.

At the time of receiving the injury a car that had arrived in the freight yard had just been weighed and moved from the scales, and stood motionless upon the track. This car was what is known as a crippled car; at one end of the car the extension block, bumpers and drawhead were all gone; there was no link nor link pin; there was a log chain attached to what is called the king bolt, under the car, which came to the end of the car, dropping down therefrom and dragging on the ground about eighteen inches, which chain was used to couple the car with other cars in place of the coupling link.

The absence of the extension block, bumpers and drawhead from this car permitted the drawhead of a sound car, coming in contact with the crippled car, to pass underneath it, so that there would be only a space of about four inches between them; the drawhead is the iron projection at -the end of the car into which the coupling link is inserted.

It is customary upon the arrival of ears at the freight yard to. inspect them, and to mark with chalk any that are found crippled, or in any respect defective.

There is a controversy in this case as to whether the car in question was so marked; the plaintiff claims that he looked, and did not see any marks; the defendant’s witnesses say that the car was plainly marked on both sides.

While it seems to me that the evidence that the car was marked largely preponderates, still it must be assumed for the purposes of this discussion that the jury found that there were no marks on the car indicating that it was crippled or defective.

While this crippled car was standing upon the track another one had been weighed and moved from the scales, and the plaintiff proceeded to couple it to the crippled car; his testimony is that he walked in front of the sound and moving car toward the crippled car; that he went in between them when they were eight feet apart, and uj>on their coming together his arm was caught between them, and badly crushed.

The exact manner in which the accident happened does not clearly appear; the plaintiff testifies that at the point where they came together there was a curve in the' track bringing the sides of the cars on the inside of the curve close together, the distance between them widening towards the outer side of the curve, and that in attempting to get from between the cars, he had his arm in advance of his body towards the inner side of the curve, and that it was caught between the outer edge of the cars and crushed, while his body was only slightly pressed, not seriously injured, by reason of the greater distance between the cars where his body was.

The defendant’s witnesses, on the contrary, say that the track at that point was perfectly straight, and that at the time of the happening of the accident the body of the plaintiff was not between the cars; that only his arm extended between them when it was caught. The accident happened about three o’clock in the afternoon of a clear day.

The plaintiff’s 'claim is, that he was not employed for the purpose of handling crippled cars except when they were marked crippled and the claim here is that defendant is liable for the accident by reason of permitting this crippled car to remain in the yard in its crippled condition without being marked or designated so as to notify the plaintiff that it was a defective car.

The plaintiff, in entering the defendant’s employ, assumed the ordinary risks incident to the service, and in continuing in its employ in the "Weehawken yard, and rendering the services heretofore enumerated, without objection or complaint, he assumed the ordinary risks of such service there.

But the defendant cannot rely upon such assumption of risks on his part, unless it takes reasonable precautions to insure his safety while in the performance of his duty. (Crown v. Orr, 140 N. Y. 450; Ford v. L. S. & M. S. R. R. Co., 124 id. 493-498.)

Among the reasonable precautions that it was the duty of the defendant to take to insure its employees’ safety, was the inspection of cars to ascertain their fitness for service. (Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y. 462; Goodrich v. N. Y. C. & H. R. R. R. Co., 116 id: 398.)

And within the principle of the last-cited cases it will be assumed that the defendant was negligent in this case in leaving the car on the track in its crippled condition without being marked by it as a crippled or defective car. But while the defendant .owed to the plaintiff the duty of supplying him a reasonably safe place in which to work, and as a part of that duty the inspection and marking of its defective cars, its duty in that respect being measured by the danger to be apprehended and avoided, the plaintiff in turn owed a duty to himself and to the defendant, which was also to be measured by the dangers of the place where he was at work and the risks to be encountered. (Goodrich v. N. Y. C. & H. R. R. R. Co., 116 N. Y. 398-402.)

The complaint of the plaintiff is, that he was not notified of the dangerous condition of the car, by reason of its not being marked; that no notice was given by the defendant of the danger to which he was exposing himself by endeavoring to couple these cars.

It needs no argument to show that if the plaintiff had actual notice of the dangerous condition of the car in question, and the risk to which he was exposing himself, and then went on voluntarily and encountered the danger, he would have no cause of action against the defendant for the resulting injury; the fact that the defendant had neglected its duty would not warrant him in rushing into a palpably dangerous position.

It has been held in the case of travelers along a highway approaching a railroad crossing that it is their duty to look and listen — to look both ways for approaching danger; that if they fail to look it is negligence on their part, and that if by looking they could see the approaching danger in time to avoid it, and still go on, they are negligent, either in not having looked, for in looking they must have seen the danger, or, having looked, in still going on; that the duty they owe to themselves and to the railroad company, in such a case, in approaching points of danger, is one of active vigilance. (Bomboy v. N. Y. C. & H. R. R. R. R. Co., 47 Hun, 429; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369; Tucker v. N. Y. C. & H. R. R. R. Co., 124 id. 308; Daniels v. S. I. R. T. Co., 125 id. 407.)

It seems to me that the duty of an employee [working with and among cars being necessarily a dangerous employment] demands on his part active vigilance to avoid danger to at least the same degree that is demanded of the traveler along the highway approaching railway crossings.

In this place where "the plaintiff was employed there were crippled and uncrippled cars; it was his duty to look, and if he did look and saw the dangerous condition of. the car, and did not attempt to avoid the consequences of handling it in such condition, he was negligent; and if he did not look, and thereby failed to see its condition, which he might have seen by looking, it seems to me he was equally negligent.

The crippled car was motionless; its condition was apparent; it was broad daylight; he was approaching it, with his face towards that portion of it that was crippled, and, it seems to me, that if he had looked there was no possibility of his not seeing its condition ; and if he did not look, he failed in taking the ordinary precaution that a man engaged in such employment should take. If the car was so crippled that he saw its condition, or could have seen it by looking, he was guilty of contributory negligence in going into and continuing in a dangerous position after he saw its condition, or going into and continuing in such a position without having looked, when by looking he could have seen its condition and avoided the danger. • He had only to look and refrain from going in between the cars, or, being in, to step out from between them and be safe.

In Millott v. N. Y. & N. E. R. R. Co. (46 N. Y. St. Repr. 145; affd., 139 N. Y. 643) the defect in the car which caused the accident was not apparent; here, as we have seen, it was perfectly apparent.

In Mahoney v. N. Y. C. & H. R. R. R. Co. (39 N. Y. St. Repr. 911; affd., 131 N. Y. 623) the bumper was absent upon only one side of the car; the accident happened about midnight, and there is nothing in the case to indicate whether plaintiff could see the condition of the car or not. Here, as before stated, the accident occurred in broad daylight, and the defect was one that was perfectly visible to any one looking; it seems to me, therefore, that the plaintiff has failed to prove the absence of contributory negligence upon his part, and for that reason the judgment should be reversed and a new trial granted, costs to abide the event.

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

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


author: Putnam, J.:

text:
    William Jones, Respondent, v. William Turner, Appellant.

      A judgment debtor employed by his creditor to ca/i'ry on a manufacturing business— liability of the creditor' under a contract with his debtor — set-off of the debt.

    Whatever may be fairly implied from the terms of a written instrument is in judgment of law contained therein.
    William Turner having recovered a judgment against William Jones, levied upon and sold thereunder the pottery of the debtor with his manufactured and unmanufactured wares. After crediting the amount realized on such sale there remained a balance due on the judgment of $1,291.57, Jones being also-indebted to'Turner in the further sum of §935.47. A contract was entered into between the parties by which it was in substance agreed that Jones should keep on at the factory and complete the unfinished wares and make new wares, and that Turner should pay monthly all hands employed in the manufactory, including the wages of Jones at three dollars a day, and should furnish and pay for the raw material and fuel necessary to carry on the business, and should sell the wares for the highest prices he could obtain and render a statement of the sales of the same to Jones; that out of the proceeds of the sales, after deducting the amounts paid for labor, material, insurance and freight for the wares, Turner should retain the balance due on said judgment, with lawful interest, and also his other demands against Jones. When such amounts were fully paid Turner was to retransfer the property to Jones. Jones commenced work under the contract on September 20, 1888, and continued to work thereunder until June 13, 1889, when the work was suspended and never recommenced. At the time the work ceased the market was dull, sales could not be made and the expenses of the business exceeded the receipts.
    Upon the trial of an action brought by Jones to recover the amount due him from Turner under such contract it was shown that the amount received from the sales of goods, over and above the expenses, including the amount due Jones, was 8484.53 ; that under the agreement Jones furnished materials and services so that a claim accrued in his favor against Turner for the sum of 81,132.67, on account of which Turner furnished goods of the value of 8463.78, leaving a balance due Jones of 8668.89 for which judgment was directed in favor of Jones.

      Held, that although the defendant might be able, at any time when it was apparent that the business provided for in the contract could not be carried on with profit, to terminate the same, yet it was his duty if he desired to end the contract to serve a notice to that effect on the plaintiff, and that in the absence of evidence of his election to terminate the contract, he was liable for the amount due to the plaintiff thereunder ;
    That the defendant could not in such action set off his demands against the plaintiff’s claim for services and disbursements under the contract.
    Appeal by the defendant, William Turner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 17th day of April, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal the said judgment and the report of the referee.

      T. F. Oonway, for the appellant.

      L. L. Bhedden, for the respondent.
   Putnam, J.:

The defendant, on September 10, 1888, recovered a judgment against the plaintiff for $2,303.37. He afterwards levied upon and sold the pottery of the plaintiff with its manufactured and unmanufactured wares. After crediting the amount realized on such sale there remained a balance owing defendant on the judgment of $1,291.57. Plaintiff was also indebted to defendant for other ■demands, amounting in all to $935.47.

The parties thereupon entered into the contract of September 19, 1888, by which it was agreed in substance as follows:

That the plaintiff should go on at the factory and complete the unfinished wares, and make new wares; defendant should pay monthly all hands employed in the manufactory, including the wages of Jones, at three dollars a day, and should furnish and pay for the raw material and fuel necessary to cai’ry on the business. Turner was to sell the wares for the highest prices he could obtain, and render a statement of the sales of the same to Jones. Out of any proceeds of the sales, after deducting the amounts paid for labor, material, insurance and freight for the wares, Turner should retain the balance due on said judgment, with lawful interest, and also his other demands against plaintiff. "When such amounts were folly paid, Turner was to transfer bach to Jones the property.

Under the contract, plaintiff, on September 20, 1888, commenced work and continued until June 13, 1889, when work was suspended and has never been again commenced. At the time work ceased the market was dull and sales could not be made, and the expenses of the business had exceeded the receipts.

At the time of the trial it appeared, according to the computation of defendant’s counsel, that the amount received from the sales of goods over the expenses, including the amount due plaintiff, as hereinafter specified, was the ,sum of $484.53.

Under this agreement, plaintiff furnished materials, and with his two minor sons performed services so that a claim accrued in his favor against the defendant for the sum of $1,132.67, on account of which defendant furnished goods of the value of $463.78, leaving a balance due plaintiff of $668.89. The referee directed judgment for the said sum, with interest.

Defendant urges that the pottery business carried on under the contract set out in the complaint, not being profitable, and it having been made to appear that the net profits would not pay his aforesaid claims against plaintiff, he had the right to terminate the contract and suspend operations under it. Also, that he could set off his aforesaid demands against any claim the plaintiff had for services under the contract. The contract provides for its continuance “ for such length of time and to such an extent as will enable the said Turner by sale of finished ware purchased by him this day, and by sale of that so to be finished and manufactured in the future, will enable the said Turner, out of the net proceeds of all sales, to pay in full the said Murray debt and judgment aforesaid, with interest.” We are not prepared to say that under the above-quoted clause, and the other provisions of the contract, and considering the purpose and intent of the parties, defendant would not have been able, at any time when it became apparent that the business provided by the writing could not be carried on with any profit, to terminate and end the same. But there is no evidence, and no finding of The referee in the case, to indicate that when the action was commenced the defendant had elected to terminate the contract. Plaintiff testified: “ Turner never told me that he did not intend to go on with the business. The first I knew was when he got the other men to pack the goods. I did not understand, up to the time the suit was commenced, that Turner did not intend to go on with the contract. He never told me he did not intend to do so and I expected all the time to go on. I locked the building every night. I don’t know if I gave the key to Mr. Turner. His son asked me for the key. I did not give it to him. The door to which I had the key was the one we went in at.”

No evidence is produced on the part of defendant showing that he had elected to terminate the contract before the commencement of the action. Nor is such a defense asserted in the answer. The only statement contained therein in that regard is as follows: And for such reasons the said business was, on or about May, 1889, suspended and no work has since been done, no labor employed, and the plaintiff has not been since in the defendant’s employment.”

If defendant desired to end the contract it was his duty to serve a notice to that effect on the plaintiff, or in some manner to notify the latter of his election. All that appears in the case and all that was alleged- in defendant’s answer was that when the action was commenced work was suspended under the contract. It did not appear that the contract was terminated. On the trial plaintiff was only allowed to recover for the services of himself and sons actually performed — not for future services. He was not allowed to recover damages for breach of the contract. The defendant objected to such a recovery, and any claim for damages for breach of the contract was abandoned on the trial by the plaintiff.

As far as the case shows, therefore, when the action was commenced the contract was in force, and the question arises whether under the provisions thereof the defendant could set off his aforesaid demands against the plaintiff’s claim for services and disbursement's.

A careful reading of the contract in question leads us to the conclusion that the learned referee made a proper disposition of the ease. By the contract J ones was to go on and complete the unfinished work and manufacture new wares. Turner was to pay Jones at the expiration of each month for necessary labor and material, including Jones’ services, at three dollars per day. The goods were to be marketed by Turner, and with the net proceeds, after deducting the amount required to pay for labor and materials, Turner was to pay his aforesaid claims. When said claims were paid Turner was to transfer by bill of sale all the remaining wares and stock to the plaintiff.

In effect the contract contained an express agreement of defendant to pay Jones for the work of himself and sons and for materials at the end of each month. The writing contains an agreement of defendant’s that such payments shall precede any payment on the judgment and claims which defendant held against plaintiff. By the terms of the agreement defendant’s said claims were to be paid out of the net proceeds of the business after paying for labor, materials and the other expenses. The defendant by his own contract, had precluded himself from setting up his demands as counterclaims. He liad agreed that the nionthly payments for labor of plaintiff and his sons and for materials should precede any payment on his own claims. Having made such an agreement it must be enforced. (Kirtz v. Peck, 113 N. Y. 222-228.)

The agreement between the parties was that the expenses of conducting the business, including the plaintiff’s claim for work and materials,should be first paid, and the net profits of the business, after deducting such payments, should apply on defendant’s demands.

If defendant’s contention should prevail he would not pay plaintiff for the labor of himself and sons and for materials furnished as provided in the contract. He would receive the amount due for said labor and materials on his aforesaid demands in addition to the net profits of the business. We think, therefore, that the conclusion of the learned referee that under the contract the plaintiff was entitled to be paid for the services of himself and sons and for materials furnished monthly was correct. The action was on a contract in force when it was commenced. Whatever may be fairly implied from the terms of an instrument is in judgment of law contained in it. So construing said contract, defendant agreed that out of the business mentioned therein plaintiff should first be paid for labor and materials before any payment was made on defendant’s demands. The judgment directed by the referee merely enforces the carrying out of the contract.

"We have examined the rulings of the referee made on the trial to which exceptions were taken, and think that none of them call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayham, P. J., and IIerriok, J., concurred.

Judgment affirmed, with costs.


text:
    The Springfield Fire and Marine Insurance Company of Springfield, Massachusetts, Appellant, v. The Village of Keeseville, Respondent.

      Complaint demurred to — statutory provisions read in connection with the allegations of a complaint based th&reon — public and private powers and liabilities of municipal corporations — maintenance of water works — liability for negligence in regard thereto.

    Upon the argument of a demurrer to a complaint the plaintiff is entitled to the most favorable construction of the facts alleged in his complaint.
    The complaint in an action brought against a municipal corporation to recover damages resulting- from its negligence in the maintenance of its water works, must he read as if the statutes governing the defendant corporation were written therein.
    Municipal corporations possess two kinds of power — one governmental and public and the other corporate or private; the first is given and used for public purposes, and in the exercise of those powers it acts as a municipal corporation; the other is given for corporate purposes, and where a municipal corporation assumes or accepts powers and duties that are not public in their nature it is to be treated in relation to those powers and duties as a business corporation or a natural person would be.
    Where a service is being- rendered for the public good and in obedience to law, and is one in which a municipal corporation has no particular interest, and from which it derives no particular benefit in its corporate capacity, the municipality is not liable for the improper or negligent performance of that service, nor is it responsible for the acts of its officers or agents performing such public service, although the officers and agents are designated by the municipality.

      As to those powers and duties of a municipal corporation, which are private corporate powers and duties, and are not for the benefit of the general public, the corporation is regarded as a legal entity, and is responsible for its omission to perform its corporate duties, to the same extent that a natural person would be under the same circumstances.
    The supplying of water by a municipal corporation is not a public function; it is purely a matter of private business in which the general public has no interest; and if a municipal corporation elects to construct and maintain waterworks under the authority granted to it by statute, it becomes responsible for the proper exercise of such powers.
    Municipal corporations are bound to use the same degree of care and diligence in respect to the maintenance of their water works as they are required to exercise in regard to their streets and sewers, and where a person who has been obliged to contribute towards the expenses of the water supply proves that by the willful misconduct or culpable neglect of a municipal corporation he was deprived of the use of water for the purpose of extinguishing a fire, whereby he has been damaged, he establishes a cause of action.
    When a municipal corporation exercises the power of erecting and maintaining water works it assumes a two-fold obligation — one not to create any new source or condition of danger by the negligent exercise of such power, and the other to remove or at least diminish existing conditions or sources of danger, such as danger from fire. The first duty it owes to all the world; the second it does not, perhaps, owe to the general public, but only to those who contribute to pay the expenses of exercising such powers.
    A public corporation having agreed to erect and take charge of a public work or enterprise for the people within its boundaries, those who contribute of their means to the erection and maintenance of such public work have a right to demand from the corporation reasonable care and diligence in maintaining it, - so that it will discharge the functions for which it was created, and for which the contributors pay, and to hold the corporation liable for a lack of such care and diligence. Such is the nature of the implied contract between a water reí t payer and a municipal corporation. ■
    Appeal by the plaintiff, The Springfield Fire and Marine Insurance Company of Springfield, Massachusetts, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 3d day of January, 1894, upon the decision of the court, rendered after a trial of the issues of law raised by the defendant’s demurrer at the Essex Special Term, dismissing the plaintiff’s complaint, with notice of an intention i o bring up for review on such appeal the order sustaining the demurrer to the complaint.

      A. W. Boynton, for the appellant.

      O. B. MeLatighlin, for the respondent.
   Herrick, J.:

This is an appeal from a judgment in favor of the defendant and against the plaintiff upon a demurrer interposed by the defendant to the complaint of the plaintiff.

The plaintiff alleges that it is a fire and marine insurance company, duly incorporated under the laws of Massachusetts, and licensed to do a fire insurance business within this State.

That the defendant is a village duly incorporated under the laws of the State of New York, and that for some six years prior to-the commencement of this action the plaintiff has carried on the business of fire insurance within the limits of the defendant. That for the privilege of so doing, and having the protection of the water works, the fire department and appliances of the defendant, it has paid an annual tax to the defendant.

And further alleges, upon information and belief, that the defendant is, and was at the time of the transactions set forth in the complaint, the owner and in the possession and control of a system of water works and fire appliances, consisting of pumps, water mains, pipes, hydrants and water hose, and, in connection therewith, has and had firemen for the purpose of extinguishing fires; that the said water works and appliances were purchased and maintained by the defendant by taxes levied and raised upon the taxable inhabitants of the village, and upon the plaintiff and other insurance companies, and by water rents paid by such inhabitants.

That by reason of the supposed protection from fire afforded by said water works and fire appliances the plaintiff insured all property within the village, including that of Emily E. Brewer, forty per cent less than it did like property outside the limits of said'supposed water and fire protection.

That one I£mily E. Brewer was a resident of the defendant, and had been for several years, and paid her proportion of the aforesaid taxes, and that on the 6th day of October, 1892, a dwelling house of the said Emily E. Brewer, situated within the corporate limits of the defendant, caught fire and was burned and damaged to the amount of i|4,450. That at the time of the fire said dwelling house was insured in the plaintiff in the sum of $5,000, and that the plaintiff paid said Emily E. Brewer her damages caused by such fire to the amount of $4,450.

Tlie plaintiff further charges that at the time of the fire the defendant had wrongfully and negligently allowed and caused its water works, pumps, pipes and fire appliances to be and remain out of repair, broken and weakened, stopped with mud and other foreign objects to such an extent that water could not be thrown or put upon said dwelling house to extinguish the fire, and alleges that if said water works and fire appliances had been in proper order the dwelling house would not have been damaged to an amount exceeding $300.

The plaintiff also alleges that the defendant" employed incompetent and unfit men to'care for and maintain its water works and fire appliances. And the plaintiff alleges that its loss to at least the extent of $4,150 was caused solely by the negligence and wrongful and unlawful acts of the defendant in failing to keep its water works and fire appliances in proper Avorking order, and in failing to employ competent men to manage and care for the same.

The plaintiff alleges that the said Emily E. Brewer has assigned and transferred to it all claims and demands against the defendant by reason of said fire and damages.

The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

From the reading of the complaint it is someAvhat difficult to determine Avhether the fire apparatus or appliances were a part of the water Avorks system, or whether the fire department and apparatus were separate and distinct from the water works, merely obtaining their supply of water from the water works, and having no other connection with them. For the negligence of a fire department, as such, different principles are involved than in cases of the negligence of other departments of a municipal government. Under the complaint in this action, negligence upon the part of the water department of defendant, as such, may be proved.

The plaintiff upon a demurrer is entitled to the most faArorable construction of the facts alleged in his complaint, and I shall, for the purpose of this discussion, assume that the tAA7o departments are separate and distinct, and that the negligence charged is entirely in relation to the water works as such.

The questions raised are interesting and someAvhat difficult of solution.

Municipal coi’porations possess two kinds of power, one governmental and public, and the other corporate or private; the first is given and used for public purposes, and in the exercise of those powers it acts as a municipal corporation; the last is given for corporate purposes, and in the exercise of such powers it acts as a private corporation or individual. (Lloyd v. The Mayor, 5 N. Y. 369; Maxmilian v. The Mayor, 62 id. 160; Ham v. The Mayor, 70 id. 459.)

Where the service is being performed for the public good, in obedience to law, ‘and is one in which the municipality has no particular interest, and from which it derives no particular benefit in its corporate capacity, the municipality is not liable for the improper or negligent performance of that service. (Maxmilian v. The Mayor, 62 N. Y. 160; Smith v. City of Rochester, 76 id. 506; Ham v. The Mayor, 70 id. 459; Bieliny v. City of Brooklyn, 120 id. 98-106.)

The municipality is not responsible for the acts of the officers or agents performing such public services, although such officers and agents are designated by the municipality; the maxim respondeat superior does not apply. (Maxmilian v. The Mayor, supra.)

As to those powers and duties which are private corporate powers and duties, and are not for the benefit of the general public, a municipal corporation is regarded as a legal entity, and is responsible for its omission to perform its corporate duties to the same extent that a natural person would be under the same circumstances. (Conrad v. Ithaca, 16 N. Y. 158-172; N. Y. & B. S. M. & L. Co. v. City of Brooklyn, 71 id. 580; Platz v. City of Cohoes, 89 id. 219.)

It is sometimes exceedingly difficult to draw the distinction between what are public and what are private corporate powers and duties.

The administration of justice, the preservation of public peace and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gas works and water works, the construction of sewers and the like, are matters which pertain to the municipality as distinguished from the State at large.” (Dillon on Mun. Corp. [3d ed.] § 58.)

The supplying of water by municipal corporations is not a public function; it is purely a matter of private business. (Matter of Long Island Water Supply Co., 30 Abb. N. C. 36.)

The general public have no interest in it; it is purely a local matter, exclusively for the benefit of the village.

When the water works are constructed they belong. to the village; the people of the village pay for them, and ordinarily receive rentals for supplying water. (Fleming v. Village of Suspension Bridge, 92 N. Y. 368; Pettengill v. City of Yonkers, 116 id. 558.)

And in Bailey v. The Mayor (3 Hill, 531) it was held that the powers granted by the act providing a supply to the city of New York with pure and wholesome water were intended for the private advantage and emolument of that city, the State in its sovereign capacity having no interest in it, and that, therefore, the city was liable for the negligent construction of the dam by the employees of the water commissioners.

While this ease has been criticised in some respects, in several cases, such as in Darlington v. The Mayor (31 N. Y. 164), the principle decided has never been overruled or departed from, but has been approved in Walsh v. Bridge Trustees (96 N. Y. 427); Ehrgott v. The Mayor (96 id. 264), and the same principle has been maintained by the elementary writers.

“ In regard to all those powers which are conferred upon the corporation, not for the benefit of the general public, but of the corporators, such as the power to construct works to supply a city with water or gas works, or sewers, and the like, the corporation is held to a still more strict liability, and is made to respond in damages to the parties injured by the negligent manner in which the work is constructed or guarded, even though, under its charter, the agents for the construction are not chosen or controlled by the corporation, and even where the work is required by law to be let to the lowest responsible bidder.” (Cooley’s Const. Lim. [3d ed.] 249; Beach’s Pub. Corp. § 1140.)

The complaint must be read in connection with the statutes governing the defendant; they are as much a part of the complaint as if written in it.

The defendant was authorized by chapter 181 of the Laws of 1815, and various acts amendatory thereof, to construct and maintain water works to supply its inhabitants with water.

The president and trustees constitute the board of water commissioners. (Chap. Ti, Laws of 1891.)

The defendant receives rents for supplying water; it has control over all the employees connected with the water works; it can employ and discharge them at pleasure ; they are its servants. The construction and maintenance of the water works, is something that was not forced upon it by the power of the State ; it could act under the law authorizing it to construct and 'maintain water works, or refuse to act, at its pleasure; but having accepted the power and authority granted, it became responsible for the proper exercise of such powers. (Cain v. Syracuse, 95 N. Y. 83.)

Considerable stress was laid in the trial court upon the burdens that would be thrown upon municipalities by holding them responsible in damages in cases like the one before us; while 1 am not insensible to such considerations, and while perhaps the court may properly give weight to them in arriving at its determination as to what the law is, still it seems to me that it would be going too far to hold that where a municipal corporation receives money for the support and maintenance of its water works, has absolute power to employ and discharge the men necessary to care for and maintain such department, it shall in no ease be held liable for damages resulting from employing incompetent men, and for knowingly and negligently permitting its water works, mains and pipes to become and remain out of repair and unfit for service.

To so hold would remove one great incentive to furnishing an efficient water service. Ordinarily, where there is no responsibility there is an inefficient public service.

Every administration in charge of a municipality is anxious for public approval; that approval largely depends upon the tax rate ; and to hold municipalities resj>onsible in damages for any lack of reasonable care and diligence in maintaining their public works, which results in injury to property, will result in increased diligence to prevent any increase in the municipal charges.

Municipalities, like individuals, are very sensitive to attacks upon the purse. Increased pecuniary responsibility begets increased care and diligence.-

It seems to me tliat, in matters like these we are how considering, it is no hardship, but on the contrary it will result in a mere efficient public service, if municipal corporations are held responsible for the same degree of care and diligence that they are held to in respect to streets and sewers — as expressed by Chief Justice Andrews: “ The language of the cases expressing the measure of duty resting upon a municipal corporation in respect to its streets, sewers, etc., has not always been carefully guarded, but the doctrine has been frequently reiterated in this court that there is no absolute guaranty or undertaking on the part of a municipal corporation that its streets or other constructions shall at all times and under all circumstances be in a safe and proper condition, and that its obligation and duty extend only to the exercise of reasonable care and vigilance. There must be willful miseonclaot or ealpaUe negleot to create liability.” (Hunt v. The Mayor, 109 N. Y. 135-141. See, also, Danaher v. Brooklyn, 119 id. 211.)

The water to be supplied by the defendant, and for which the plaintiff and its assignor contributed to pay, was, amongst other things, for the purpose of extinguishing fires, and it seems to me that where a person can prove that by the willful misconduct or culpable neglect of the defendant, he was prevented from the use of water for such purpose, whereby he has been damaged, he establishes a cause of action. The complaint here is broad enough to permit evidence of willful misconduct or culpable neglect; which being proved, it seems to me would entitle the plaintiff to recover.

This is not a case where there is simply an inadequate supply of water, but one where, by the mismanagement and neglect of the municipal 'authoiities, the plaintiff’s assignor has been prevented from using the water that was otherwise to be liad, that she had paid to receive, and that the defendant had, impliedly at least, contracted to furnish.

The case of Danaher v. Brooklyn (supra) was an action to recover damages for injuries occasioned by drinking impure water at a public well in said city. The court there said : “ This water was not furnished for a compensation paid for its use; there was no contract relation between the city and those who used it. The well was for public gratuitous use. * * * It owned this well as it •owned its other property kept for public use, such as streets, parks and public buildings, and it owed tlie duty of reasonable diligence to care for it as it was bound to care for such other property. Its liability for unwholesome water in any of its public wells must rest upon negligence.”

The city was held not liable, because there was no evidence of negligence on its part in caring for the well, but the prevailing-opinion held that it was undoubtedly the duty of the city to keep wells and pumps in good order. Keep them in good order for what purpose ? To supply good and wholesome water for potable purposes; that was the function to be performed by the wells and pumps.

The function to be discharged by the -water works of the defendant is, among others, to furnish water to extinguish fires; it is tlie duty of the defendant to keep them in such condition that they may discharge that function.

There may be a distinction between those cases where the injury complained of would not have happened but for the municipality undertaking to exercise a power, and negligently exercising it, so as to create a dangerous condition 'which would not otherwise exist — as to dig and maintain wells, and allowing the water to become unwholesome and poisonous; or to erect a dam and negligently maintain it; or by its negligent care of water works, letting water escape so as to undermine a street — and those cases where the same danger would exist, and the same injury result, if the municipality had never assumed to exercise the power in question.

Danger from fire always exists, and lack of water to extinguish it, resulting in damage, is no new condition of danger created by the defendant.

But when the defendant assumed the power of erecting and maintaining water works, it assumed a two-fold obligation — one not to create any new source or condition of danger by the negligent exercise of such power, and the other to remove, or at least diminish, existing conditions or sources of danger, such as danger from fire.

The first duty, that of not creating any new conditions of danger, it owes to all tlie world; the second, the removal or diminishing of existing conditions or sources of danger, it does not, perhaps, owe to the general public, but only to those who contribute to pay the expense of exercising such powers.

In the Danaher Case (supra) the court, it will be observed, laid stress upon the fact that in that case there was no contractual relation between the city and the parties using the water; that it was gratuitously furnished ; in this case the facts are directly contrary. The water is not furnished gratuitously by the defendant.

The water works of the defendant are not supported and maintained by general taxation, but by rents, which rents are measured to a certain extent by the needs of the persons using the water and the amount consumed by them.

The water commissioners are authorized to establish a scale of rents, to be charged and paid to them for the supply of water, to be called water rents, and appropriated to different classes of buildings in said village, in reference to their dimensions, values, exposure to fires,, ordinary or extraordinary uses for dwellings, stores, shops, hotels, factories, livery stables, barns and all other buildings, establishments, and trades, yards, number of families or occupants or consumption of water as near as may be practicable.” (§ 13, chap. 181, Laws of' 1875.)

The rents are to be paid to them “ for the supply ” of water.

One of the things to be taken into consideration in determining-the amount of such rentals is the exposure to fire of the building to be supplied with water; and, as I think may be a fair interpretation, the value of the protection from fire afforded by the water-supply-

In other words, the water rent payer pays for water to be used in case of fire, to save him from loss and damage. -And it seems tome that where a person pays that rent he has some rights, and the defendant is under some obligation to him.

As we have seen before, when a municipal corporation assumes or accepts powers and duties that are not public in their nature, it is to be treated in relation to those powers and duties in the same way as a business corporation or a natural person would be.

If a business corporation or natural person had made a charge for furnishing water, and had accepted payment of that charge, we would consider that a contract to furnish water to the person paying.

And if that business corporation, by sheer mismanagement, the employment of incompetent men, and by negligence, had prevented the use of the water it had agreed to supply, when it was most needed, the courts, I think, would hold such corporation or person liable for the direct resulting damages.

The defendant has gone into the water .supply business; it is a private corporate business, conducted for its own benefit, and not for the general public; and it would seem to legitimately follow from the different responsibilities recognized by the courts of the State, for acts done by municipal corporations in the discharge of duties that are public in their nature and those that are only for the benefit of the particular municipality, that the defendant is liable as for,a breach of contract.

While such a conclusion seems to result naturally from the principles of the cases I'have referred to, still I think it is not entirely a correct one. The defendant after all is a purely public corporation ; all the powers it has are for the public benefit; some for the general public; some for the public within its boundaries; it is not a corporation conducted for pecuniary gain or profit, and should not be held to the same strict accountability as one conducted entirely for gain ; it should not be regarded as an insurer or guarantor.

But a public corporation having agreed to erect and take charge of a public work or enterprise for the people within its boundaries, those who contribute of their means to the erection and maintenance of -such public work have a right to demand from the corporation reasonable care and diligence in maintaining it, so that it will discharge the functions for which it is created and for which the contributors pay, and to .hold it liable for a lack of such' care and diligence. That, I think, can fairly be held to be the nature of the implied contract between the water rent payer and the defendant.

This duty and obligation the defendant, by its demurrer, admits that it failed to perform.

It admits that it “ wrongfully and negligently allowed and caused its said water works, pumps, pipes and fire appliances to become and be out of repair, broken and weakened, stopped with mud and other 'foreign objects, and unfit for use to such extent that water could not be thrown or put upon said dwelling house to extinguish the fire therein.” And it admits that “if said fire appliances and water works had been in proper working order, said fire could and would have been extinguished without damaging said house to exceed three hundred dollars.”

The plaintiff alleges and the defendant admits that it “ employed incompetent and unfit men to care for and maintain its said water works and fire appliances.”

The plaintiff alleges and the defendant admits that the plaintiff’s •loss of $4,150 “ was caused solely by the negligence and wrongful and unlawful acts of defendant in failing to keep its water works and fire appliances in proper working order, and in failing to employ competent men to manage and care for the same.”

These allegations and admissions of negligence and of wrongful and unlawful acts, resulting in injury to plaintiff and its assignor, are very broad, and to hold that they do not constitute a cause of action is practically to hold that there is no responsibility attached to municipal corporations, no matter how culpably or willfully negligent they may be in discharging corporate duties they have voluntarily assumed to discharge, and that there is no penalty for the unfaithful discharge of such obligations, unless some official performs some overt act which rises to the dignity of a crime.

It seems to me that the complaint sets forth a cause of action, and that the demurrer should be overruled.

I have examined the authorities of other States cited upon the brief of counsel and others. This discussion has already extended so far that I do not desire to prolong it, neither do I see that any profit can be gained by a discussion of those cases. Some of them are in States where there is no municipal liability except that derived from statute. Some arose out of the negligent acts of officials of the fire department, and it was held that officers of the fire department were not the agents or servants of the municipality, for whose negligence it was liable; in others no distinction is made between powers conferred and duties performed for the welfare of the general public and those that are corporate in their nature, a distinction which, as we have seen, is well recognized in this State; in some there was an inadequate supply of water; in others it turned upon the exercise of the discretion of the authorities in the location of apparatus. Special features distinguished those cases from this.

There are also some cases directly in conflict with the views herein expressed.

It is sufficient to say that after a consideration of the views of the ■courts in tlie various cases referred to, it seems to me that in a case where the issue is purely one of negligence, the conclusion at which I have arrived as to this complaint is in consonance with the principles relating to municipal liability recognized by the courts of this State, although, so far as can be gathered from the reported’ cases, never before applied in an action like the one now sought to be maintained.

The judgment appealed from should be reversed, with costs of this appeal, the demurrer overruled, with costs, with leave to the defendant to plead over.

Mayiiam, P. J., concurred in result; Putnam, J., not acting.

Judgment reversed, with costs of appeal, demurrer overruled, with costs, with leave to defendant to plead over.


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    James Daley, as Administrator, etc., of William H. Daley, Deceased, Respondent, The Port Jervis, Monticello and New York Railroad Company, Appellant.

      An open railroad carat a station — an invitation to board the same — negligence.
    Where a car is in its accustomed position at the platform of a railroad station, open and apparently ready to receive passengers, it is an invitation to persons desiring to take the train to enter the car.
    Appeal by the defendant, The Port Jervis, Montioello and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 25th day of September, 1893, upon the verdict of a jury, rendered after a trial at the Sullivan Circuit, and also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Wm. A. Pcm'shall, for the appellant.

      John W. I/yon, for the respondent.
   Herrick, J.:

The plaintiff, with his wife and child, went to the depot of the defendant, purchased a ticket for his wife shortly before six o’clock in the evening, the train which they were to take being scheduled to start at six o’clock.

After purchasing the ticket they proceeded to the platform and there found a car standing with doors open, apparently ready to receive passeugers. He and his wife were both accustomed to riding upon the train in question; it was about the time that it was scheduled to start and the car stood at the usual place.

Other passengers were there taking the car; the wife entered the car; following her was another lady, not a member of plaintiff’s party, then came the plaintiff with a basket and his infant child; he lifted the child upon the platform of the car, started to get upon it himself, when the car was jerked forward and the child thrown off, sustaining injuries from which it died.

It seems to me that the defendant was clearly guilty of negligence, for the car being in its accustomed position at the platform, open and apparently ready to receive passengers, it was an invitation to the plaintiff to board the train.

The judgment should be affirmed. There is no special principle •of law involved which calls for an opinion ; the facts are such as to clearly require a submission to a jury and their finding should not be disturbed.

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

J udgmeut affirmed.


author: Mayham, P. J.:

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    Effie B. Oliver, Respondent, v. Margaret R. French and Others, Respondents; Charles A. Kenworthy and Another, Appellants.

      Party in default — cannot appeal — remedy.
    Under tlie provisions of section 1294 of the Code of Civil Procedure, a person against whom a judgment was rendered by default cannot appeal from the same. The only remedy for a person in default, who is aggrieved by a judgment or order entered against him, is to apply to the court and obtain an order opening the default and then take issue upon the law or facts, and upon such issue obtain a determination in the trial court, from the decision of which an appeal can be taken.
    Appeal by the defendants Charles A. Kenworthy and another from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 26th day of April, 1893, upon the decision of the court rendered after a trial at the Colombia Circuit before the court without a jury, with notice of an intention to bring up for review on such appeal said judgment.

      J. Rider Gady, for the appellants.

      A. Frank B. Ghaee, for the respondent.
   Mayham, P. J.:

This case on appeal contains none of the evidence, and there are no exceptions to the findings of fact or conclusions of law of the learned trial justice on the trial, and the appellants now seek to reverse the judgment solely upon the alleged ground that the conclusions of law of the learned trial judge are not supported by the facts found by him.

The appeal. is by Charles A. Kenworthy and Emma J. Ken-worthy, individually and as executrix and trustee under the will of Charles "W. Kenworthy, deceased.

The judgment in this case as to Emma J. Kenworthy, both as an individual and in her representative capacity, was entered by default, she not having appeared or answered in the action.

We do not see how she can question this judgment taken against her by default. The right of a party to appeal is provided for in section 1291 of the Code of Civil Procedure. That section provides as follows: A party aggrieved may appeal in a case prescribed in this chapter, except where the judgment or order of which he complains was rendered or made upon his default.”

This exception by clear implication deprives a party in default from an appeal. The only remedy left for a 'party in default, who is aggrieved by a judgment or order, is to open the default and thus take issue upon the law or facts, and upon such issue have a determination in the trial court where an appeal from such determination can be taken.

The right of a party to be heard on an appeal, in cases where an appeal is not given by statute, was determined in Trevett et al. v. Barnes et al. (110 N. Y. 503). There a party sought to be heard on an appeal in the Court of Appeals, yhere the amount in eontroversy was less than $500, when the action was one not affecting the title to real property, or an interest therein, and that court held that the appeal must be dismissed under the provisions of subdivision 3 of section 191 of the Code of Civil Procedure, which contains exceptions to the general jurisdiction of that court, that case coming within one of those exceptions.

It would seem, therefore, that this court is entirely without jurisdiction to hear and consider this appeal of Emma J. Kenworthy. (Avery v. Woodin, 44 Hun, 266; Flake v. Van Wagenen, 54 N. Y. 25.)

It is also insisted by the respondents that the same is true as to the appellant Charles A. Kenwortliy, no answer or demurrer having been made as to him, and, although an infant at the time of the foreclosure and sale under the mortgage sought to be set aside, he was of full age at the time of the commencement of this action, and cannot be heard on appeal from a judgment taken against him by default. In this respect we see no reason for any distinction between his right to appeal and that of Emma J. Kenworthy, the other appellant, and think the disposition of the appeal as to her must follow in his case.

It is also objected by the learned counsel for the respondents that there is no question in this case, as made and presented, which this court can consider on the appeal in behalf of the defendants Emma J. and Charles A. Kenworthy, as no exceptions were taken by them to any of the findings of fact or conclusions of law of the learned trial court, and that, within the rules of law and nractice, nothing is presented to this court for its determination.

Sections 992, 993, 994 and 998 of- the Code of Civil Procedure provide for the manner of raising questions of law upon the findings or refusals of the judge to find, on questions of fact or upon his conclusions of law, where exceptions are taken.

Section 996 provides that: A ruling to which an exception is taken as prescribed in the last four sections, can be reviewed only upon an appeal from the judgment rendered after the trial,” etc.

The appellants, as we have seen, having suffered judgment to pass against them by default, are, as we think, in no condition to review the judgment on appeal; and no case or exceptions being before this. court, it has no power to review the facts or law so ably discussed by counsel for the appellants, and examination of the same upon the merits is unnecessary.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Elizabeth Stopp, Respondent, v. The Fitchburg Railroad Company, Appellant.

      Damages for personal injuries caused by the negligence of a railroad company — absence of contributory negligence must be proved by the plaintiff.

    To maintain an action brought to recover damages for personal injuries, alleged, to have been sustained by reason of the negligence of the defendant, it is necessary for the plaintiff to establish the absence of contributory negligence on her part by affirmative evidence, and the burden of proof in regard to the same rests upon the plaintiff.
    Upon the trial of such an action, it was shown that the plaintiff was driving an uncovered buggy, and as she approached a railroad crossing, while some distance therefrom, she observed two freight trains upon the track furthest from her. She stopped her horse between 170 and 250 feet from the track nearest to her. After the freight trains went by on the furthest track, the plaintiff testified that everything was all clear as far as she could see ; that she listened for a minute or two, and looked both ways to see if any trains were coming. There was no sound given, no bell rung or whistle blown. She started up her horse, which was going on a slow walk, and under her control. While she was approaching the first track she looked up and down and did not hear any warning, and was struck and injured by a train which was going at the rate of forty miles an hour.
    It was also shown upon the trial, that, sitting in a buggy 25 feet from the railroad crossing, the tracks could be seen 1,100 feet; 50 feet away they could be seen for a distance of 1,300 feet, and at a distance of 100 feet from the tracks they could be seen for a distance of 180 feet, and that standing on the crossing the tracks were clear to the eyesight to a whistling post 1,300 feet away.

      Held, that the defendant’s motion for a nonsuit was improperly denied;
    That the plaintiff failed to establish the fact that she was free from contributory negligence on her part, as if she had looked up and down the track before attempting to cross the same, she would have seen the approaching train, and would have had ample time to stop, and if she did not look it was negligence on her part not to have done so.

      Appeal by the defendant, The Fitchburg Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Rensselaer on the' 25th day of November, 1893, upon the verdict of a jury, rendered after a trial at the Rensselaer Circuit.

      T. F. Hamilton, for the appellant.

      James G. Fursman, for the respondent.
   Herrick, J.:

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff and against the defendant for the sum’ of $525.84, damages and costs.

In October, 1892, the plaintiff, while driving across the tracks of the defendant, was struck by one of defendant’s trains and thrown from the buggy in which she was riding and sustained injuries, for which she brought this action.

At the time in question slid was driving in an uncovered buggy with her mother; she had a single horse, which was gentle, easily managed, not afraid of the cars, responsive to the whip and lines, and stopped readily when spoken to, and the plaintiff had full control over him at the time in question.

The highway where the accident happened is crossed by two tracks belonging to the defendant; they are about 260 feet apart.

As she approached the crossing, and while at some distance therefrom, she observed two freight trains upon the track furthest from her ; upon observing them she stopped her horse. At or near the place where she stopped there are two houses situated on the highway, one distant about 170 feet from the first track and the other about 250 feet. She says: “ Before we came to these tracks we stopped and we saw two freight trains, one after the other, on the. lower track going by, and we stopped until these went by and everything was all clear as far as we could see, and then we listened for a minute or two, I do not know quite so long, but then listened long enough to hear for noise and to see if any trains were coming, I looked both ways to see if any trains were coming, and I know no more until we went on and got struck with the trains. There was no warning or sound given; no bell rung or whistle blown. The carriage and horse both stopped. We were waiting to see if there was any danger. We stopped for the trains to go by, and then we looked both ways and listened and then went on and were struck by this train. It was about quarter to nine in the morning. I looked both ways, up and down, to see if any more trains were coming and did not see any more, so went on; then not knowing any more until we were struck-by the cars.”

She was familiar with the crossing and had crossed there a great many times. She says : “ I think we stopped by the second house from the track, or near there; I could not say right in front of it nor near there; I don’t know whether a little past; I could not say just how far from the track; I should say about three hundred feet from the track. It is my best recollection now that we stopped before we got to the last house. We did hot stop from that time until the accident happened. ITorse was going slow and on a slow walk. I had full control over the horse. When I stopped there were two trains on the lower track; after they passed I looked ahead. I looked both ways on this other track; up and down on the first track we had to cross. I could not see anything from that point on account of the lay of the land — the physical barrier. I could see down the west-bound track, and I could see those trains going by. My mind was on the first track we were crossing because I knew we were in danger. When I stopped near the house I could not see up the west-bound track at all; I could not see anything but the track road ahead of me; the first track I could not see that; I could see the other track — the east-bound track — plainly with those freight trains coming east. Then I started on a walk. By the Court: Q. Which way did you look ? A. Up and down. Q. After you started? A. Yes, sir. Q. While you approached this track? A. Yes, sir; I did not hear any warning; there was no warning given me.”

There is a whistling post on the wrest-bound track [this is the track where the accident happened] 1,300 feet from the crossing:

Sitting in a buggy 25 feet from the crossing the tracks can be seen for a distance of 1,100 feet towards the whistling post; 38 feet away it can be seen 1,100 feet; 50 feet away the tracks can be seen for a distance of 1,300 feet. At a distance of 100 feet from the track it can be seen for a distance of 180 feet. Standing on the crossing tlie track is clear to the eyesight to the whistling post, and standing twenty feet distant from the track the whistling post can be seen.

The train by which the plaintiff was struck was a passenger train, going at tlie rate of about forty miles an hour.

As to the facts herein stated there was no controversy upon the trial. The defendant moved for a nonsuit at the close of the plaintiff’s case, which was denied, and again at the close of all -the evidence in tlie case, upon the ground that no negligence was shown on the part of the defendant, and that there was no evidence of the absence of contributory negligence on the part of the plaintiff, which was also denied.

I think tlie court erred in overruling the defendant’s motion for a nonsuit at the close of all the evidence.

To maintain her cause of action it is necessary for her to establish the .absence of contributory negligence by affirmative evidence. It is an issue in the case where the burden of proof rests upon tlie plaintiff.

In the case of Bomboy v. N. Y. C. & H. R. R. R. Co. (47 Hun, 425) tlie plaintiff there testifies that he had been looking for the train, but did not see any; that when he got near the railroad he looked up and down, but did not see any train. Pie testifies that he looked up and down the track when he was distant about twenty feet, and again when about fifteen feet, and still again when about ten feet, but saw no train; his horses were upon ,a walk. The evidence further shows that at twenty-six feet distant therefrom he could see down the track a locomotive 320 feet, and could have a full view of an approaching train if he had looked over liis left shoulder; and, at the rate of speed at -whichhe was going, he would take between four and five seconds to go twenty- six feet; and there was no object in view to distract his attention. Notwithstanding his testimony the court stated : “ It is highly probable that he did not look during that space of twenty-six feet, but, if he did, he must have seen tlie train.” It is important to notice that, according to his testimony, his horses barely stepped one or two feet upon the track, and had stopped of their own accord, and that then for the first time he saw the locomotive just upon him. The court further says: That we must hold that tlie plaintiff was not free from con-tributary negligence. He had ample control of his team and of his own actions, was not put off his guard or distracted by any act of the defendant, could easily look, had ample time to do it, and heedlessly exposed himself and property to injury.”

In this case, when at the distance of twenty-five feet from the crossing, the plaintiff had a clear view of the track for 1,100 feet, while in the Boniboy case, at twenty-six feet from the track only a view of 320 feet could be obtained.

At fifty feet away the smokestack of the engine coula be seen a distance of 1,300 feet from the point where she was struck by the locomotive.

As was stated by the court in the Boniboy case, she had ample control of her team and of her own action, and she was not off her guard nor distracted by any act of the defendant, and could have easily looked, had ample time to do it; and if she had looked during that time she must have seen the train, and, in the language of Woodard v. N. Y., L. E & W. R. R. Co. (106 N. Y. 369, 374), she liad only to “ look and pause to be safe,” at any time when within fifty feet of the defendant’s tracks. (See, also, Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y. 308; Daniels v. Staten Island R. T. Co., 125 id. 407.)

It being indisputable that she could have seen the train for over 1,000 feet at any time after she reached a point fifty feet distant from the track if she had looked. I think it must be held, in view of the cases I have referred to, that she did not look, excepting straight in front of her, but went heedlessly on.

If she had looked she would have seen the locomotive and have had ample time to stop and be safe; if she did not stop, it was negligence ; if sl.ie did not look, it was negligence.

For the error, therefore, in denying the motion for a nonsuit, the judgment should be reversed and a new trial granted, costs to abide the event.

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

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