text:
    Frank A. Hall, Respondent, v. The Sterling Iron and Railway Company, Appellant.

      Right to draw water enough for a certain purpose — when such purpose is a measure of quantity and not a limitation of use — extent of a grant, how determined.

    Where the right of using' or drawing' ofi; water from a pond is granted (for tlie purpose of carrying- on certain works of the grantee) in such quantity as would he sufficient to carry on such works, and no further or greater quantity, tlie works of tlie grantee are intended as the measure of quantity, and not to limit the purpose to which tlie use of the water can he applied ; when, however, the intention of the parties to restrict the use is evident from tlie instrument or from the surrounding facts and circumstances such intention must prevail.
    The extent of a privilege secured hy a conveyance is to lie measured and circumscribed by the terms of the instrument construed in the light of the legal principles applicable thereto, and the facts surrounding the parties at *he time of the grant.
    Appeal hy the defendant, The Sterling Iron and Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk cf the comity of Orange on the 10th day of September, 1892, upon the decision of the court after a trial at the Orange County Special Term, and also from an order made at the Dutchess County Special Term, and entered in the office of the clerk of the county of Orange on the 11th day of October, 1891, granting the plaintiff’s motion for a preliminary injunction.

      William B. Anderson and Macgra/ne Oox, for the appellant.

      E. A. Brewster, for the respondent.
   Dykman, J.:

This is an actioii in equity brought to restrain the defendant from placing any obstruction in or near the outlet of a certain pond called Mount Bashan pond, in Orange county, or the stream of water leading therefrom, and from doing any act whatever which shall diminish or interfere with the free flow of the water from the pond through its outlet, and from interfering with or molesting the plaintiff in' removing the obstructions in the flume at the outlet of the pond.

The foundation of the plaintiff’s claim is a deed from Peter Townsend and wife to Henry McEarlan, dated June 25,1811, which conveyed “ all that the right, title or privilege of using or drawing off the water from a certain pond called Mount Bashan pond, situate in the town of Monroe, in the county of Orange, near the nail manufactory of the said Henry McEarlan and others, called the Monroe Works, for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace situate between said nail manufactory and the said pond, called Southfield urnace, occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used, and no further or greater quantity.

“ Provided always that the right so as aforesaid granted to the said Henry McEarlan, his heirs and assigns, of drawing off said water as aforesaid, shall cease at all times whenever the said furnace, called the Southfield Eurnace, is in blast or making iron.”

At the date of that deed Henry McEarlan and Joseph Blackwell owned and occupied about fifty-two acres of land, which included the premises now owned by the plaintiff, and also the seat of the old nail factory or Monroe Works.

The right to draw off the water of Mount Bashan pond was purchased with the joint funds of Henry McFarlan and Joseph Blackwell, but the deed was taken in the name of Henry McEarlan.

The plaintiff is now the owner of the land upon which the mill stands, and also of the right to the water of Mount Bashan pond, as conveyed to Henry McEarlan by deed from Peter Townsend of June, 1811.

The factory known as the Monroe Works ivas destroyed by fire many years ago and never rebuilt, but the water privilege in question has been used since that time to propel machinery upon the site where the plaintiff’s factory for manufacturing wooden ware is located. The plaintiff acquired the title in April, 1886, and his deed includes the land and the water right.

The case was tried before a judge without a jury, who rendered a judgment in favor of the plaintiff for the relief demanded in the complaint, from which defendant has appealed to this court.

The trial judge found the following facts: That ever since April 1,1886, the plaintiff had been seized in fee and possessed of the land and water power described in the complaint, which is the same as that described in the deed in the language which we have quoted, and that there was a natural stream of water leading from Mount Bashan lake to the Ramapo river, passing through the plaintiff’s land, and which furnishes a water power propelling the machinery of a factory owned and operated by the plaintiff upon his said lands.

On June 25, 1811, the lands now owned by the plaintiff were owned and possessed by one Henry McFarlan and Joseyfii Blackwell, who were partners in business, and who, with their joint funds, purchased the water right mentioned in the deed from which wé have taken the extract as already mentioned, the deed for the same being taken in the name of said Henry McFarlan alone. That land formed a part of a larger tract then owned and possessed by said McFarlan and Blackwell, upon which, below the place where plaintiff’s factory stands, on the same property and upon the same stream, there was a nail factory, sometimes called Monroe Works, which was ■destroyed by fire more than fifty years ago, and never rebuilt.

That on June 25, 1811, one Peter Townsend owned Mount Bashan lake and the lands between the plaintiff’s premises and that lake, and also owned the Southfield Furnace, and on that day he executed and delivered to said Henry McFarlan the deed already mentioned.

The plaintiff’s title to the lands now owned by him is derived through sundry mesne conveyances from the said McFarlan and Blackwell after said deed to McFarlan, and the title to said water power granted by said deed, has, by said conveyances, and as an appurtenance to the land, become, and is now, vested in the plaintiff.

At the place where the plaintiff’s factory now is, there existed^ down to about the year 1S65, an old grist mill run by the same water* power. At or about that date the grist mill was converted into a. basket factory, which afterward gave place to a shoddy mill, and then to the plaintiff’s present factory, all of which were operated by the water power of said stream.

In September, 1891, the defendant, by closing the gate in a dam upon said stream above plaintiff’s property, and by forbidding and preventing the plaintiff from opening the outlet of the lake, deprived the plaintiff of said water power to a considerable and material extent, so that the plaintiff from September 25, 1891, to November 16, 1892, could only run his machinery about one-quarter of the time, and the plaintiff sustained damage thereby.

The Southfield Furnace has not been 'in blast or operation since-the year 1881. As conclusion of law, the trial judge found that the plaintiff is the owner of the right to use the natural flow of said stream for the purpose of propelling machinery upon his said premises. That in addition thereto, the plaintiff is also entitled, when the Southfield Furnace is not in blast, to draw off from Mount Bashan lake into said stream such quantity of water from time to-time, as would be sufficient for the carrying on of the works of the Southfield Furnace, if in blast and operated only by water power, the-water so drawn off from said lake to be sufficient to propel machinery on plaintiff’s premises.

The plaintiff is entitled to an injunction restraining the defendant-from interfering with the plaintiff’s right above mentioned. Plaintiff is entitled to judgment for such injunction and establishing his rights aforesaid, and for six cents damages and costs of the action.

A brief description of the topography of the premises in question and of the pond is as follows : Mount Bashan pond is a lake about one square mile in extent, fed by springs and surface waters, situated in the town of Monroe, about four miles from the village of Southfield, in the town of Tuxedo.

At the northeasterly end of the lake is a dam through which flows the Mount Bashan creek, which is the only outlet of the pond. That stream flows in a general southerly direction to its junction with the Ramapo river at the village of Southfield. At a point on that stream, about three miles southerly from the pond, is a pond of about. fifty acres in extent, known as tlie Little Dam pond; about a half mile further south on the stream is situated the Southfield Furnace, but from the diagram annexed to the case we see that the furnace was not located immediately upon the side of the stream, but was fed by water from the pond which led through a flume from the dam directly to the furnace. About a half mile south of the furnace on the stream is situated the mill of the plaintiff and a dam which he uses for the purpose of storing water for his mill. About 1,200 - feet farther south from the plaintiff’s mill and dam are the ruins of a building, which, as we gather, was the nail factory, known as the Monroe Works, mentioned in the complaint.

The difference between the parties is this : The defendant insists that the grant was made for the use of the nail works only, and that the waters cannot be utilized for any other purpose. It is also claimed by the defendant that the action cannot be maintained because the new factory of the plaintiff is not upon the site of the •old nail factory.

Contrariwise the plaintiff claims that he is not restricted to the use of the water for a nail factory, but is entitled to use the same quantity of water for any purpose upon any part of his premises. The dispute must be settled by the terms of the grant and the law applicable thereto.

The substance of the grant is this: The right to use the water from Mount Baslian pond, for the purpose of carrying on the Monroe Works, in such quantity as would be sufficient for carrying on and working-the Southfield Furnace, located between the factory of the plaintiff and the pond, and no further or greater quantity.

Like all rights resting in grant, the extent of the privilege secured by this conveyance is to be measured and circumscribed alone by the terms of the instrument, construed by the light of the legal principles applicable thereto and the facts surrounding the parties at the time of the grant. j

In this State, if the grant be of sufficient water to propel certain machinery, the grantor may use the water for any purpose required, but no greater quantity than is granted, but it is otherwise where the use is restricted to a certain purpose. The question, therefore, must be referred to the intention of the parties, to be deduced from the language of the instrument, viewed in connection with the sur.rounding circumstances indicative of their object and purpose. In this case there is nothing in' the terms of the grant indicative of a design to restrict the grantee in the mode of using the quantity of water to which he was entitled.

Going back to the original grant of 1811, Peter Townsend, the grantor, was then the owner of the pond, the land between it and the plaintiff’s factory and the Southfield Furnace, and it is easily inferred that he intended to reserve all the water power of the pond for his furnace, because he expressly provided in his grant that the right to draw off the water granted to Henry McFarlan should cease at all times whenever the furnace was in blast or making iron. Py that proviso the grant became dormant and inoperative whenever the furnace was making iron, and conversely it was in full operation at all other times as an xmrestricted grant.

Why should we indulge in the assumption that the grantor intended to restrict the use of the water to any particular purpose? Such restriction could in no way be beneficial to the grantor, lie retained full control of the water for the use of his furnace whenever it wras in operation. When the furnace was still, the quantity of water required to operate the machinery must run to the plaintiff’s mill to be utilized there, and the purpose for -which it was used was a matter of indifference to him.

In this State the courts have favored the construction of the terms of a grant of a sufficient quantity of water to propel a certain kind of machinery as used to indicate the quantity of water intended to be granted. This rule is based upon public policy, and the fact that it is more beneficial to the grantee without being more onerous to the grantor. Here the grant was of the right of using or drawing off the water from the pond for the purpose of carrying on the works of the grantee in such quantity as would be sufficient to carry on and work the furnace, and no further or greater quantity. Within all the decisions of this State the works of the parties are intended as the measure of quantity, and not as a restriction of the purpose to which the use of the water could be applied, and it may be used for the propulsion of any kind of machinery.

In the case of Cromwell v. Selden (3 N. Y. 253) the grant was of “ water sufficient to keep a saw mill in operation at all times when there is more than is wanted to drive a grist mill with three run of stone and one set of carding machines and a fulling mill, and other machinery for dressing cloth,” and it was held that the grantor in the deed, and those holding under him, were not restricted in - the use of the water to the particular object mentioned in the deed, but might use the quantity reserved for any other purpose.

In the case of Olmsted v. Loomis (9 N. Y. 423) it was held that a reservation in a grant of water privilege of so much water “ as is necessary for the use of a forge and two blacksmiths’ bellows,” does not limit the use of the water reserved to the sole object specified, and such reference to a certain object will be regarded as a measure of the quantity and not as a restriction of the use of the water.

In Wakely v. Davidson (26 N. Y. 387) the language of the grant was this: “Also the privilege of water sufficient to carry the trip hammer in said blacksmith shop, when the same is not wanted by the parties of the first part, their heirs or assigns, for carding machines and fulling mill, said water to carry said trip hammer to be taken out to the best advantage,” and it was held by the Court of Appeals that the language was not a limitation of the purpose to which the water was to be applied, but of the quantity to be taken, and that the quantity of water equal to that used at the time of the grant and reservation for carding and fulling may be used by those claiming under the grant and reservation for any other manufacturing purpose.

In Comstock v. Johnson (46 N. Y. 615) “ the defendant’s ancestor conveyed to the plaintiff’s grantor certain real estate on which stood a carding machine and clothing works and shops, and also granted the privilege of drawing from their dam a sufficient quantity of water for the use of said works,” and the Court of Appeals held that the words used in the grant under which the plaintiff held were to be taken as a measure of quantity, and did not limit the use of the water to the particular machinery specified.

In the case of Mudgc v. Salisbury (110 N. Y. 413) the plaintiff was the owner of certain premises upon which, at the timé he acquired title, there was a grist mill, and the premises were conveyed to him, “ together with the grist mill privilege, being the first on the stream, for two run of stone, -with the necessary apparatus for the same.”

In an action to restrain the alleged interference with the water power it was held that the grant was not limited to power for the grist mill as it stood at tlie time of the conveyance ; that the privilege was made appurtenant to the land conveyed, and could be used either for the mill then standing or for any other erected on the land, or for any other purpose; that the reference to the machinery was not intended to limit the place where or the purpose for which the water could be used, but to measure and limit the quantity.

In the cases of Groat v. Moak (94 N. Y. 115); Hartwell v. Mut. Life Insurance Company (50 Hun, 498); Fisk v. Wilber (7 Barb. 395); Terry v. Smith (47 Hun, 334); Olmsted v. Loomis (6 Barb. 152), and Borst v. Empie (5 N. Y. 33) the decisions were all to the same effect.

While admitting substantially that the courts in this State and in the Eastern States, where the question has been many times considered with learning and ability, have held it to be for the interest of the public that the use of water power should be permitted to develop with the growth and changing interests of manufacture,, the defendant yet insists that the general rule of construction based upon the doctrine of public policy is not applicable to this case.

The most that can be claimed from the authorities quoted by the appellant is, that where'the intention of the parties to restrict the uséis to be gathered from the instrument or from the surrounding facts, and circumstances such intention must prevail.

That is simply stating in another way the rule which we have already recognized, but our conclusion is that neither the language of the grant in question nor the circumstances surrounding the parties at the time of its execution restricts the use of the water. Clearly a grant of water power may be so made as to restrict the use of the water to a particular purpose.

Our determination renders unnecessary an examination or decision of the question whether the rights of the plaintiff are appurtenant or in gross, for if they are in gross then he owns one-half, and maintains his action to protect his interests.

Moreover, the defendant has not raised the question of nonjoinder of parties.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

• Judgment affirmed, with costs.


source: Caselaw Access Project

author: Pratt, J.: Barnard, P. J.

license: Public Domain

text:
    The People of the State of New York ex rel. The Pratt Institute, Respondent, v. The Board of Assessors of the City of Brooklyn, Appellant.

      Miemptionfrom, “ local tarnation ” — the Pratt Institute.

    ’The effect of the provision of section 10 of chapter 398 of the Laws of 1887, that the property of the Pratt Institute in the city of Brooklyn “shall not be subject to local taxation,” is to confer an exemption only from taxation for city purposes, and not from county taxation. (Barnard, P. J., dissenting.)
    Appeal by tlie defendant, The Board of Assessors of the City of Brooklyn, from an order of the Supreme Court, made at the Kings Comity Special Term and entered in the office of the clerk of Kings county on the 26th day of July, 1893, granting the motion of the relator, the Pratt Institute, for the issuance of a writ of mandamus commanding the defendant to cancel all taxes upon property of the relator in the city of Brooklyn for the year 1892, except the tax for .State purposes.
    The board of assessors claimed that county taxes, that is, taxes for county purposes, did not come under the head of “ local taxation,” and assessed the relator’s property for such taxes.
    Section 10 of chapter 398 of the Laws of 1887, entitled “An act to incorporate Pratt Institute in the city of Brooklyn,” is as follows: ““ For the uses and purposes aforesaid the said corporation is authorized to take by grant, devise, bequest, gift or otherwise, and to hold, lease, sell and convey any real and. personal property, and to erect ■all necessary and suitable buildings, and any property in the city of Brooklyn actually occupied and used for the purposes aforesaid, or the revenues of which are exclusively devoted to the purpose aforesaid, shall not be subject to local taxation; but this exemption shall not apply to any property in excess of the value of three million of dollars.”

      Almet F. Jenks, for the appellant.

      Johnson & Lamb, for the respondent.
   Pratt, J.:

The act of 1887 states that property of the relator in the city ■of Brooklyn shall be exempt from local taxation. We think that by “local taxation” the Legislature intended taxation for city purposes.

The “ locality ” referred to was the city of Brooklyn; no other “ locality ” was spoken of, and, so far as we can see, none other was considered.

The appellant correctly argues that special statutes conferring immunities should be strictly construed, and if the Legislature had intended that the relator should be subject to no taxation except for State purposes it could easily have said so.

Order of Special Term reversed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

By chapter 398, Laws of 1887, the relator’s property is declared not to be “ subject to local taxation,” unless it exceeds $3,000,000 in value. The property of the Pratt Institute is less than this sum, and the court at Special Term held that local taxation included taxation for city and county purposes. The distinction between State and local taxation is fully recognized in statute and by judicial decision. All taxation is local which is not of common benefit to all the people of the State. It is entirely immaterial whether or not the property is in the city. The Legislature could have exempted it from taxation for all purposes, State and local. An exemption fz-om local taxation only exempts the same from the general State tax and excludes taxation for city and county purposes.

The judgment should be affirmed, with fifty dollars costs.

Order granting mandamus reversed, with costs and disbui'seznents, azid motion denied, with costs.


author: Barnard, P. J.:

text:
    In the Matter of the Guardianship of Dorothy Annan.

      Appointment of guardian — interests of the infant atone considered.

    The rule which governs the appointment of a guardian of an infant is solely the hest interests of such infant.
    The appointment of joint guardians of the person of an infant, with the proviso that each guardian should have the custody of such infant every alternate six months, considered.

      Appeal by the petitioners, Edward Annan and another, from so much of the decree of the Surrogate’s Court of Kings county, entered in the office of the clerk of said Surrogate’s Court on the 12th day of July, 1893, as appoints Mrs. May Earle joint guardian of the infant, Dorothy Annan, and as commits the said infant to the custody of said Mrs. May Earle.
    An application having been made in the Surrogate’s Court of Kings county for the appointment of a general guardian of the person and property of. Dorothy Annan, an infant under the age of fourteen years, a decree was entered which contained, among others, the following provisions:
    “ It is ordered, adjudged and decreed that letters of guardianship of the person of the said infant, Dorothy Annan, be issued to -her maternal grandmother, Mrs. May Earle, and to the aunt of the said infant, Mrs. Charlotte S. Richardson.
    “ It is further ordered, adjudged and decreed that each of the said guardians upon qualifying have the custody, care and control of the said infant for one-half the time. The infant shall reside with Mrs. May Earle from the date of this decree until November 1, 1893, at which time the custody of the said infant shall be transfei*red to Mrs. Charlotte S. Richardson for six months, or until May 1, 1894. Thereafter, alternately, each guardian shall have the custody and care of the said infant for periods of six months.”

      A. E. Lamb, for the petitioner, appellant.

      John, Oakey and William D. Veeder, for Mrs. May Earle, respondent.
   Barnard, P. J.:

Dorothy Annan was born September 8, 1890. The surrogate appointed a maternal aunt and a maternal grandmother guardians of the person of the infant. The order provides that each guardian shall have the custody of the infant every alternate six months, and it is only this proviso of the order which is presented to this court by the appeal. All admit that the maternal aunt is a proper person to be guardian. She lives with the paternal grandfather of the infant, Mr. Annan, a man of large means, and she has had charge of the infant since the infant’s mother died in July, 1891. The infant’s father died in January, 1893. The child was left in the charge of Mrs. Richardson during the interval between the death of the mother and the father. The rule which governs the appointment of guardian is solely the best interests of the infant. (Code § 2821; Bennett v. Byrne, 2 Barb. Ch. 216 ; People ex rel. Pruyne v. Waltz, 122 N. Y. 238.)

Under these authorities it does not seem that the joint guardianship as ordered should prevail. The child is very young and needs extremely careful attention to its health. This involves unity of treatment and a^ careful respect for the feelings of a baby of such tender years. A change of place, of treatment, of nurses, of surroundings every six months should be avoided. The interests of the infant are entirely in favor of the guardianship of Mrs. Richardson, viewing the case solely with reference to the physical wants of the infant. The last wish of the child’s father was in favor of Mrs. Richardson bringing up the child as guardian. The pecuniary interests of the infant are entirely in favor of the child being brought up in the family of Edward Annan. He had a strong affection for his son, the child’s father, and is willing to bring the child up socially far better than the estate of the child, which is small, could do. The child will be better cared for by Mrs. Richardson and will be brought up by her grandfather Annan with a full appreciation of his expectation for her.

The part of the surrogate’s decree appealed from should be reversed, with costs and disbursements out of the estate.

Pratt and Dykman, JJ., concurred.

Order of surrogate, so far as appealed from reversed, with costs and disbursements out of estate of child.


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    James Creegan, Respondent, v. James Robertson, Appellant.

      A judgment creditor, as a purchaser in good faith — a sale without change of possession, mid.

    A judgment creditor, who has obtained personal property of his judgment debtor ■ by purchase at a sale under execution, stands in the same position as a purchaser in good faith.
    Where personal property is purchased by one person from another, and there is no actual and continued change of possession, the sale is presumably void.
    Appeal by tlie defendant, James Robertson, from a judgment of tbe County Court of Orange county, entered in tbe office of tbe clerk of the county of Orange on the 9th day of December, 1892, upon a verdict directed by the court giving the plaintiff the possession of certain personal property, and also from an order made on the Jth day of December, 1892, directing such verdict.
    This action was brought by James Creegan in the Justice’s Court of the town of Deerpark and county of Orange, to replevy certain chattels alleged to have been taken from the possession of one J ames Hamilton by levy on the 30th day of August, 1892, by a deputy sheriff of Orange county, under and by virtue of an execution issued upon a judgment obtained by the defendant, Janies Robertson, and which chattels were sold September 8, 1892, under such execution and bought in by Robertson.
    The plaintiff claimed the ownership of the chattels under two instruments, of which the following are copies:
    “ The agreement made February 23rd, 1892, between James Creegan, of Port Jervis, and James Hamilton, of the Town of Deerpark, Orange County, N. Y., as follows: Janies Creegan has left with James Hamilton six cows, two horses, one lumber wagon, two spring wagons, two sets of double harness, during his pleasure; for the use of said cows, horses, wagons, harness, &c., and I, James Hamilton, agrees to pay James Creegan Twenty Dollars a month, commencing February 23rd, 1892, to provide feed and take good care of all the above without any charge or expense to J ames Creegan, Hamilton to have the milk and butter only from said cows, and use the horses and wagons careful, Creegan to have the calves, if any; it is understood that when James Hamilton has fully paid James Creegan Two Hundred and Eighty-Three Dollars, with interest over and above all charges James Creegan may have against him, that he, James. Hamilton, becomes the owner of all the above; until then they remain the property of James Creegan, and he can take the same wheresoever they are without any charges or expenses whatsoever, and dispose of said property as he wish. Whatever notes I, James Hamilton, give James Creegan, was for his own accommodation only, and has or had nothing whatsoever to do with the payment of these or any other cows, horses, wagons, harness or any other property.
    “JAMES HAMILTON.
    “ (Indorsed)
    “JAMES HAMILTON
    to
    “JAMES CREEGAN.
    “ Dated February 23rd, 1892, in regard to six cows, two horses, three wagons, two sets harness.”
    “ Port Jervis, N. Y., April tíh, 1891.
    “ Bill of James Creegan.
    “ $392.00 to pay for as follows: In full,
    “ One Bay Horse, known as the Gumaer Horse......... $40.00
    “ One Bay Mare, about 13 yrs. old.................... 35.00
    “ One Chestnut Sorrel, 6 yrs. old..................... 100.00
    “ One Brown Horse, 9 yrs. old....................... 50.00
    “Two Lumber Wagons, $12 each..................... 24.00
    “ Two Spring Wagons, $10 each...................... 20.00
    “ Two Double Sets of Harness, $10 each............... 20.001
    “ One Milch Cow, line back, 10 yrs. old................ 16.00'
    “ One Milch Cow, black, 6 yrs. old.................... 20.00
    “ One Milch Cow, red, 4 yrs. old...................... 20.00'
    “ One spotted Milch Cow, 5 yrs. old................... 25.00-
    “ One white Milch Cow, 3 yrs. old.................... 17.00'
    “One “ “ “ “ “ .................... 15.00-
    $392.00
    “ The above I sell said Creegan as my own personal property free and clear of all incumbrance whatsoever,
    “JAMES HAMILTON.

      “'(Indorsed.) 362?, James Hamilton to Janies Creegan. Bill of .■Sale. Dated April 4th, 1891. Filed August 8th, 1891, 4.50 p. m.
    “ GEO. E. HOENBECK,
    “ Clerk.”
    Judgment was rendered in favor of the plaintiff, and the defendant appealed to the Orange County Court and demanded a new trial.

      Wilton & William S. Bennet, for the appellant.

      C. E. Cuddeback, for the respondent.
   Barnard, P. J.:

On the 8th of September, 1892, one James Hamilton'had in his possession four cows and one spring wagon. This property was taken from Hamilton’s possession by virtue of an execution against him, and the plaintiff claims that the title to the property is in him, and he, in his action, seeks to recover the same from the defendant, who has them in his possession. The plaintiff made a title to the property by a written paper between himself and Hamilton by which the plaintiff left the projierty with Hamilton, but providing that until the payment of $283 Creegan was to remain the owner. The property in question had been in the possession of Hamilton for two or three years, and the case shows that on the 4th of April, 1891, Hamilton sold to Creegan similar property. Creegan says ■that he got this particular property in question of other parties, but this fact is wholly irreconcilable with the long previous possession of Hamilton. The case was, therefore, one for the jury. If the property in question came from Hamilton to Creegan, and there was no ■actual and continued change of possession, the sale is presumably void. (3 R. S. [Banks’ ?ch ed.] 2328.)

The real transaction between the parties Creegan and Hamilton is not clear. How the new agreement, so called, being the conditional sale paper, could supersede the bill of sale to Creegan, given April 4, 1891, is equally uncertain. Part of the property covered by the bill of sale of April 4, 1891, had been sold back to Hamilton by Creegan, who had given a note to pay for it, and paid the note. A judgment creditor stands as a purchaser in good faith from Hamilton. If this property was- bought by Creegan from Hamilton, and there was no change of possession and no explanation of that fact, the sale is void as to creditors, and the defendant can hold the property. These questions can only be settled by a jury.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred.

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


author: Pratt, J.:

text:
    Robert E. Jackson, Appellant, v. Pierre M. Brown, Respondent.

      Pleading — joinder of causes of action —. complaint alleging the loss of a servant’s services from seduction and seeking to set aside a release of the damages.

    A complaint in an action brought to recover the damages occasioned by the loss of a servant's services by reason of her seduction does not improperly unite different causes of action when it seeks, in the form of a separate cause of action, to set aside a release of the cause of action for the damages resulting from such seduction, alleging that such release was obtained by fraud. (Code Civ. Proc. § 484.)
    Appeal by the plaintiff, Robert E. Jackson, from a final judgment of tbe Supreme Court, entered in the office of the clerk of Queens county on the 18th day of May, 1893, dismissing the complaint in accordance with the terms bf an interlocutory judgment theretofore entered in said clerk’s office on the 18th day of April, 1893, upon a decision of the court made at the Queens County Special Term, sustaining the defendant’s demurrer to the complaint on the ground that causes of action were improperly united therein.

      Mansfield Compton, for the appellant.

      A. A. Gardner, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon an order sustaining a demurrer to the complaint.

Nominally the first cause of action is for loss of services of a servant by reason of seduction by the defendant, and the second cause alleged is to set aside a release of the first dause of action obtained by fraud.

Although alleged as two causes of action there is really but one, the action for loss of services. The allegations relative to the release were merely incidental to the cause of action. It is true the plaintiff could have pleaded the loss of services and left it for the defendant to set up the release as a defense, and then avoided it on the ground that it was obtained by fraud, but the defendant is not prejudiced by the fact that it is made a part of the complaint.

'We'also think this method of pleading is authorized by the Code (§ 484), but it may not be greatly commended.

The case resembles the familiar method often employed when it is sought to reform a policy of insurance and then recover upon it as reformed.

Judgment reversed and new trial awarded, with costs to the defendant to abide the event.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order sustaining demurrer to complaint and judgment thereon reversed and new trial granted, costs to abide event.


text:
    Frederick H. Smith, Respondent, v. The City of Athens in the State of Georgia, Appellant, Impleaded with The Equitable Mortgage Company and Others, Defendants.

      Amendment of answer — attaching the execution of a contract originally admitted.

    When a defendant has interposed an answer admitting the due execution of a contract set forth in the complaint and joining issue on the merits, he is to he deemed to have elected to waive defects in the execution of the contract which, if they existed, must have been known to him, and he should not thereafter he allowed to amend his answer so as to set up such defects and the'consequent invalidity of the contract.
    Appeal by the defendant, The City of Athens in the State of Georgia, from ail order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of Kings county on the 21st day of June, 1893, denying its motion for leave to amend its answer.

      The action was brought by the plaintiff, claiming to be the owner and holder of seven bonds of the par value of $7,000 of the Athens City Water Works Company, part of an issue of $125,000 of bonds; to restrain the defendants from issuing- and disposing of certain bonds of the city of Athens, Georgia, to the amount of $125,000, on the alleged ground that the city had violated a contract for its water-supply in course of performance by the Athens City Water Works. Company, and in connection with which the first above-named issue-of bonds was made, and had undertaken the construction of another system of water works; and, to provide the means for such construction, was about to issue and negotiate a series of bonds to the amount of $125,000.
    The main defendant and the sole defendant answering to the-merits was the city of Athens, a municipal corporation existing-under the Constitution and laws of Georgia. By its answer the city of Athens admitted the execution of the contract set forth in the complaint, but denied the material allegations of the complaint as to the alleged performance by the Athens City Water Works Company, of the contract, and averred a breach of the said contract by the water works company, whereby the city and its citizens were-deprived of wholesome water fit for domestic use and sufficient for protection against fire, and claimed that the erection of new water works was a public necessity rendered indispensable in consequence of said breach of said contract.
    After issue joined, March 30, 1893, application was made to the-court at Special Term, at Chambers, June 17, 1893, for leave to-amend the answer by inserting therein the following allegation:
    “ Fourteenth. For a further separate and distinct defense to the-alleged cause of action set forth in the said complaint, in addition to and herein repeating the several foregoing allegations, admissions- and denials, the said answering defendant alleges, upon information and belief, that the said contracts and the incurring of the debt as therein provided, on the part of this answering defendant, did not. have the assent of two-thirds of the qualified voters of said city of' Athens, Georgia, at an election for that purpose held as prescribed by the laws of Georgia, and that such assent and popular vote were, at the time of the making of such contracts, and ever since have been and now are, required by the Constitution and law of the State ■of Georgia, and were then and still are essential to the entire validity of said contracts, and that such contracts were and are invalid in any event, under and pursuant to such Constitution and law, for .any longer period than one year.”
    This application for leave to amend the answer was denied, and from the order of denial this appeal was taken.

      Wm. Allen Butler and John Notinan, for the appellant.

      John Sabine Smith, for the respondent.
   Pratt, J.:

The order denying leave to amend the answer was discretionary .and the discretion was wisely exercised.

The answer expressly admits the due execution of the contract. The alleged defects in the execution of the contract, if they exist, must have been well known to appellant when the answer was interposed. If they existed, the appellant clearly elected to waive them and defend the action upon the merits. To such election it .should be held. To allow it first to admit and then, after reflection, to deny facts upon which the rights of parties rest, would not be in furtherance of justice.

Yarious other considerations, which need not be stated at length, .sustain the order appealed from.

Order denying leave to amend answer affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Order affirmed, with costs and disbursements.


author: Barnard, P. J.: Pratt, J.:

text:
    James C. Caywood, as Guardian, etc., Respondent, v. John K. Van Ness, Appellant.

      Conversion of a bond and mortgage, by a second assignment thereof.

    Where it is shown that a person executed an assignment of a bond and mortgage to another, and thereafter again assigned such bond and mortgage to a third person before the previous assignment had been recorded, a cause of action is presumptively made out by the first assignee, and the subsequent sale of the security establishes a conversion.

      Appeal by the defendant, John K. Van Ness, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk 'of the county of Kings on the 5th day of April, 1893, upon the verdict of a jury rendered at the Kings County Circuit.
    The complaint in this action contained in substance the following allegations:
    “ That on the 31st day of January, 1889, and for a certain time prior thereto, one David Gf. Caywood was the guardian of the estate of Ellen M. Caywood and Mary A. Caywood, infants under the age of fourteen years. And this plaintiff, on information and belief, alleges that said David Gr. Caywood, as such guardian, had in liis possession, on the said 31st day of January, a large sum of money belonging to said infants’ estate.
    “ That on which day the defendant was the owner of a certain bond and mortgage respectively bearing date the 28th day of December, 1888, executed by Esther Jersey and John D. Jersey to Alexander Waldron, and which mortgage covered certain real property in the city and county of New York, and was to secure the payment of three thousand and twenty dollars, said bond and mortgage having been assigned to said defendant on the 17th day of January, 1889.
    “That on the 31st day of January, 1889, the defendant granted, bargained, sold, assigned and set over to the said David G. Cay-wood, as such guardian, in consideration of three thousand and twenty dollars, the said bond and mortgage, and received the said sum from said David G. Caywood; whereupon said bond and mortgage became and were the property of said infants, and said David G. Caywoodj as such guardian, became and was, and he and his successors ever since have been, entitled to the possession of the same, together with the interest accruing thereon.
    “ That said David G. Caywood retained possession of said assignment, but neglected to record the same in the office of the register of the city and county of New York, and that the same has never been so recorded.
    “ That said David G. Caywood did not take said bond and mortgage into his personal possession, but left the same with and in the care and custody of the defendant. >

    “ That on the 4th day of April, 1889, the defendant, having said bond and mortgage in his possession, as aforesaid, wrongfully converted the same to his own use, and wrongfully and fraudulently pretending to own the same, sold and assigned them to one Reuben R. Finch, and received from said Finch the sum of three thousand and sixty dollars ($3,060) therefor, and on the same day said Finch caused such assignment to him to be recorded in the office of the register of the city and county of New York. That such assignment by the defendant to Finch is in all respects like that which is hereunto annexed except as to the date thereof.
    “ That the said David G. Caywood departed this life on the 10th •day of'February, 1890, and on the 28th day of August, 1890, this plaintiff was, by the surrogate of the county of Seneca, duly appointed such guardian in said David G. Caywood’s place and stead, said infants then and now residing in said last-mentioned ■county.
    “Wherefore, the plaintiff demands judgment against the •defendant for three thousand and twenty dollars, with interest from .January 31, 1889, besides the costs of this suit.”

      Robert Payne, for the appellant.

      William G. Cooke, for the respondent.
   Barnard, P. J.:

David G. Caywood was appointed by the surrogate of Kings ■county guardian of his two infant daughters, Ellen M. Caywood and Mary A. Caywood. lie died in February, 1890, and there was found among his papers an assignment of a bond and mortgage ■executed by the defendant to David G. Caywood, guardian. No bond and mortgage was found. The plaintiff was properly appointed guardian of the children, and he brings this action to yecover for a conversion of the bond and mortgage by the defendant. It was proven that in April, 1889, the defendant assigned the bond and mortgage to Reuben R. Finch, and that the previous assignment to 'the plaintiff’s predecessor as guardian was not recorded. These facts presumptively made out a cause of action. The written paper passed the title to the bond and mortgage, and the subsequent sale of the securities by the defendant established a conversion of the same. (Fulton v. Fulton, 48 Barb. 581.)

Tlie proof also supports the verdict of the jury. It was proven that when the defendant’s attention was called to the fact of the assignment being found among the deceased guardian’s papers, he suggested that possibly the guardian may have assigned the paper to raise money on it. He had then again assigned the papers himself. The defendant in April, 1889, admitted that he had $2,000 of Cay-wood’s money (the deceased guardian), and he spoke of it as a fund. This was about the very date of the second assignment made by Van Ness. The proof shows that the fund belonging to the children was about the sum of $2,083.33. The defendant received over $3,000 on the second sale of the mortgage. The defense consisted of evidence tending to show a settlement with the deceased guardian just bftore the second assignment. The credibility of the witnesses was a question for the jury, and their finding, based upon a refusal to credit this settlement, is fully sustained by the whole body of the evidence.

The judgment should be affirmed, with costs.

Dykman, J., concurred.

Pratt, J.:

This is an appeal from a judgment entered upon the verdict of a ÑV7-

The evidence is necessarily meagre from the peculiar circumstances of the ease, but we think it is sufficient to sustain the verdict.

The great point made by the defense is, that there is not sufficient evidence of conversion to warrant the finding of the jury.

It seems to me this contention cannot be readily sustained. The •assignment by Van Ness to Cay wood, the general guardian, vested the title of the bond and mortgage in him, and it was immaterial whether it was delivered to him at the time or not, although a witness for the defendant testified that he saw it delivered at that time. By some means, which do not clearly appear, Van Ness regained possession of the bond and mortgage and assigned them to another party. Such assignment was a conversion unless Van Ness was rightfully the owner of the bond and mortgage at that time, and the jury has found that he was not such rightful owner. This result was partly reached through the admissions and statements of the defendant himself.

Tbe defendant well knew that he was dealing with a guardian, and his misfortune is that the jury did not believe his witness who-testified to a settlement with the guardian.

The whole transaction, as far as it is possible to obtain evidence of it, was before the jury, and, considering the various statements as testified to by plaintiff’s witnesses, we cannot say the verdict was erroneous in any respect.

"We have examined the exceptions taken upon the trial and find no error sufficient to warrant the granting of a new trial.

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.:

text:
    Josephine Vandewater, as Administratrix, etc., Respondent, v. The New York and New England Railroad Company, Appellant.

      JRaib'oad company — notice of trains approaching crossings — evidence — acquiescence in the use of a crossing imposes a duty — negligence.

    It is not necessarily the duty of a railroad company to maintain a flagman at crossings nor to remove obstructions to observation, although the absence of the former and the presence of the latter may always be proved upon the trial of an action brought to recover damages resulting from injuries sustained by reason of a collision with a train.
    It may be an insufficient defense to such an action to prove compliance with the statutory regulations respecting signals. The giving of such signals does not, under all circumstances, relieve a railroad company from the imputation of negligence. It is bound to use ordinary precautions to avoid collisions.
    Upon the trial of such an action proof was given that it was the custom of the railroad company to give warning of trains approaching the crossing, and it. could be assumed that the plaintiff's intestate was familiar with such custom

      Held, that evidence that such custom was not followed at the time of the accident was admissible.
    Where a crossing over the track of a railroad company has been used so long with the assent of such company that such acquiescence amounts to a license, a duty is imposed upon the company in respect to all persons using the crossing to exercise reasonable care in operating its trains so as to protect them from injury.
    Although a railway company is not absolutely bound to ring a bell or blow a whistle upon the locomotive of a train approaching a crossing, yet it is bound to give notice and warning, and as to what notice and warning is sufficient the jury must determine. The fact that a hell was rung does not, in itself, establish the fact that the company used reasonable care.

      Appeal by the defendant, The New York and New England 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 Dutchess on the 13th day of October, 1891, upon the verdict of a jury for $5,000, rendered at the Dutchess County Circuit, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    This action was brought by Josephine Yandewater, as administratrix, etc., of William P. Yandewater, deceased, to recover damages for the death of the plaintiff’s intestate, who was killed while attempting to cross the defendant’s railway at a farm crossing near Eishkill, by reason of the alleged failure of the defendant to give warning of ’an approaching train.

      W. C. Anthony, for the appellant.

      Wood & Morschauser, for the respondent.
   Dykman, J.:

This action was here before upon an appeal from a judgment entered upon a verdict in favor of the defendant, and we affirmed the judgment.

That judgment was reversed by the Court of Appeals, because the trial judge charged the jury that it was the duty of the defendant to blow the whistle or sound the bell eighty rods before reaching the highway, and continue it at intervals, until the crossing was passed, and if it failed to do that, and the accident at the farm crossing was occasioned by that omission, the jury might find a verdict of negligence, the same as if the provision of the Railroad Act imposing an obligation to sound the bell or blow the whistle eighty rods before reaching the crossing had never been repealed.

It was also decided that the provision of the Penal Code devolving the duty of giving such signals upon the engineer imposed no duty upon the railroad company, and, therefore, the failure to give such signals cannot, as a matter of law, be regarded as a neglect of the defendant.

In the opinion of the Court of Appeals (135 N. Y. 588) Judge Peckham said: Of course the companies still owe a duty to the public at such crossings as elsewhere. That duty is to run their trains with care and caution, and when they cross such roads it may well be that the failure to give due warning by whistle or bell, or in some ' other way, would be held under all the circumstances to be a failure to manage and run their train with proper care and caution for which they would be liable to a party injured if otherwise entitled to recover. Even when compelled by statute to make such signals, it is not necessarily a defense in all cases to prove that they were made. The making of the signals is the least the company can do, and in a given case it might not be enough. * * *

“ It may be that evidence of the omission to give any signals for the highway crossing would not be admissible as bearing upon the question of defendant’s negligence in running its trains at the farm crossing 2,000 feet distant.

“ There are cases where evidence has been admitted showing the absence of customary signals at the places where usually they had been given, for the purpose of proving negligence on the part of the company. Whether this was a case where evidence of this nature should be admitted in favor of this plaintiff, and with regard to the highway crossing is a question not now necessary to decide.

“ If the defendant were guilty of negligence in the manner of running its train over the farm crossing, it would be liable to a plaintiff otherwise entitled to recover. Upon a new trial all the facts can be shown which would enable the court or the jury to determine the question.”

The second trial was before a judge without a jury, and he decided in favor of the plaintiff, and from the judgment entered upon such decision the defendant has appealed to this court.

The trial judge found substantially as follows: That the defendant is a foreign corporation and is the owner of the New York and New England railroad; that along the line of its road it has a depot located at Fishkill village, at which depot the defendant’s trains were accustomed to stop, going in either direction, and that the defendant, since January, 1890, and prior thereto, established a custom of causing each and every one of its engines to blow its whistle or ring its bell upon its approach to that depot in either direction, whether the train stopped there or not. That there is at right angles to such, railroad a farm crossing, known as White’s crossing, which runs north and south, while the railroad from said depot toward said crossing runs in a westerly direction in a straight line,- and that White’s crossing is located about 1,400 feet westerly from that depot. That the road of the defendant over the said crossing runs westerly through a deep cut or excavation from near said station to and across the farm crossing. That by reason of said excavation there were high banks on either side of the defendant’s road, over which the farm crossing passed, the same continuing nearly from Fishkill station to and across the said farm crossing. That upon the southerly side of the defendant’s road and upon and along the edge of the said bank, on the 16th day of August, 1890, . and for a long time prior thereto”, there were growing and permitted to remain large quantities of brushwood and trees, which, together with the banks aforesaid, interfered with and obstructed the view of people passing over and along said farm crossing, which was on a level with the roadbed of the defendant, and obstructed the view of any train thereon running toward the west; that those obstructions were of such a character that they could have easily been removed by the defendant, and upon such removal the view of an approaching train from the east would be much better, and that the removal of such obstructions would render it safer for persons crossing said railroad at said farm crossing. That the defendant had upon its road a train known as the pay car; ” that they had established the custom of running the train on Friday of each week. On the 16th day of August, 1890, on Saturday, the defendant ran its pay car, being an unusual day to run the same, and it was run from Plopewell Junction to White’s crossing at an unusual time and at an unusually high rate of speed, being at least forty-five miles an hour, which was a much higher rate of speed than trains were run or had been run at that time by the defendant on said railroad, without giving any alarm or sounding any whistle or ringing any bell at its approach to said crossing, or at its approach to said depot. That the defendant’s road consists of a single track, and ’from the Fishkill depot to White’s crossing the view of a person upon an engine is unobstructed from the depot to beyond the crossing, so that an engineer running a locomotive could see any attempt of a person to pass over that crossing with a horse and wagon before such person could observe the engine. That on this occasion the engineer failed to look, and did in a negligent and careless manner run said locomotive without properly observing any danger ahead. That White’s crossing is a farm crossing, and was legally placed there and permitted to be there by the defendant, who had full knowledge of its existence and the conditions surrounding it, and the crossing was used by persons residing on each side of the crossing, and was also used by other persons to reach a creek near by, all of which the defendant admitted, and of which it had full knowledge.

That on the 16th day of August, 1890, the defendant ran a train consisting of one locomotive and a pay car as mentioned above, which car at that time was going toward the west and ran the same toward said Fishkill depot and in the direction of the crossing, and over the crossing without giving any warning or sounding any whistle or ringing any bell or making any noise to attract attention, and that the same was run by the defendant in such a careless, negligent manner as to strike the said William P. Yandewater while going over the said crossing and instantly kill him. That the deceased upon approaching and at the time he attempted to go over the said crossing, looked in both directions, and listened for the approach of any train, and attempted in a proper and careful manner to cross the railroad track, and that he was struck by the train without any negligence or carelessness on his part while approaching the crossing in a proper, prudent and careful manner. That the running of the train by the defendant at an unusual time, and at such a high rate of speed, and approaching the depot without sounding the customary alarm, and approaching the crossing, knowing the conditions and obstructions there existing, with such a train, was such negligence and cai’elessness as to cause the death of the deceased, and that the same did cause his death. ■ That the deceased was killed by reason of the negligence and carelessness of the defendant, and the plaintiff has been damaged by the death of her said husband in the sum of $5,000, and has suffered uecuniary loss in that amount resulting from his death.

As conclusions of law the judge found and decided that the defendant was bound under the circumstances to use ordinary care and prudence which it failed to do on this occasion ; that the plaintiff’s intestate was not guilty of contributory negligence.

Under all the circumstances surrounding the occurrence which resulted in the death of the plaintiff’s intestate, the running of the train at an unusual time, at such a high rate of speed, without sounding the customary • alarm, and approaching such crossing where the plaintiff’s intestate was killed knowing the conditions and obstructions there existing, was carelessness and negligence, and it was such carelessness and negligence that caused the death of plaintiff’s intestate without any fault or negligence on his part. That the plaintiff has been injured and suffered pecuniary loss in the sum of $5,000 by the loss of her husband. The plaintiff is entitled to judgment for the' sum of $5,000, together with interest thereon from the 16th of August, 1890, being the day of the death of the said deceased.

A serious question in this case is whether evidence to show the absence of the customary signals at the station where such warnings are usually given was properly admitted. The Court of Appeals leaves this question in abeyance, but states, as we have seen, that if the defendant was guilty of negligence in running its trains over the farm crossing it would be liable to a plaintiff otherwise entitled to recover.

Inasmuch as there is small ground for attributing negligence to the deceased, the question is of paramount importance upon this appeal.

In an action of this character it is usual and proper to prove all the facts and circumstances surrounding the occurrence, not to impose any duty upon the company which the law does not en join, but to lay before the jury the manner of operating the road. It is not the legal duty of a railroad company to maintain a flag at crossings, nor to remove obstructions to observation, and yet the absence of the former and the presence of the latter may always be proven upon the trial as bearing upon the general question involved. (Casey v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 518; McGrath v. Same, 63 id. 528.)

So, conversely, it may be an insufficient defense to prove compliance with the statutory regulations respecting signals. Giving such signals does not under all circumstances relieve the company from the imputation of negligence-. They are bound to use ordinary precaution to avoid collisions. (Thompson v. N. Y. C. & H. R. R. R. Co., 110 N. Y. 636 ; Harty v. Railroad Co., 42 id. 468.)

In tlie case of Casey v. The Railroad Compamy (supra) proof was admitted to show that the defendant, previous to the accident, had been in the habit of keeping a flagman at that place, and that he was not there at the time, and it was held competent proof. We think that case analogous to this. Here the proof is that the custom was to give alarms on approaching the station, and the custom was not pursued at the time of the accident.

We may assume from the frequent use of the crossing by the deceased, that he was familiar with the custom of the company to give .occasional signals when trains approach the station, and that being so, the omission of the custom on this occasion may have lulled him into security, and induced him to advance after looking and listening for signs of an approaching train, as he did. (Sullivan v. Tioga R. R. Company, 44 Hun, 311.)

The crossing where the deceásed met his death had been used so long with the assent of this company that such acquiescence amounted to a license, and imposed a duty upon the company in respect to all persons using the. crossing to exercise reasonable care in operating its trains so as to protect them from injury.

Although in such cases the company is not absolutely bound to ring a bell or blow a whistle upon the locomotive of a train approaching such crossing, yet it is bound to give some notice and warning, and as to what is sufficient in this regard is a matter for the jury. When a train is approaching a crossing of this character the fact that the bell was rung does not as a matter of law establish the fact that the company used reasonable care, but it is for the jury to determine whether any other precaution should have been taken by those in charge of the train. (Swift v. Staten Island Rapid Transit Railroad Company, 123 N. Y. 649; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289; Byrne v. Same, 104 id. 362.)

These authorities all indicate the propriety of permitting proof upon the trial of all the acts either of omission or commission which surrounded this catastrophe.

In accordance with the suggestion in the opinion of the Court of Appeals, the plaintiff omitted proof of failure to give any alarm for the highway crossing east of the station. Our conclusion, therefore, is that the evidence proves the defendant guilty of negligence in running a train over the farm crossing, and that the deceased was free from negligence.

The judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


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    Alfred T. White and Another, Appellants, v. David A. Boody, Mayor, etc., and Others, Respondents.

      New York Constitution, art. 8, § 11 — the Legislature has power to authorize the payment of municipal funds to an inebriate home —1877, chap. 169.
    Payments of excise moneys by the city of Brooklyn to the Inebriates’ Home for Kings County, are payments for city purposes, and do not violate the provisions of article 8, section 11 of the Constitution, as amended in 1874.
    Where a city is entitled to put destitute persons in the care of a corporation the Legislature has the power to authorize the city to provide for the burden thus cast upon the corporation.
    The claim that chapter 843 of the Laws of 1867 was merged in chapter 687 of the Laws of 1872, and that chapter 687 of the Laws of 1872 was practically repealed by chapter 627 of the Laws of 1875, and that chapter 169 of the Laws of 1877 by amending chapter 687 of the Laws of 1872 had no force .because chapter 687 of the Laws of 1872 was without force, is not supported by authority.
    Appeal by the plaintiffs, Alfred T. White and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of August, 1893, denying the plaintiffs’ motion for a temporary injunction.
    This action was brought by residents and electors of the city of Brooklyn for the purposes of perpetually enjoining and restraining the defendants, officials of the city of Brooklyn, from paying to the treasurer of the Inebriates’ Home for Kings County any percentage of the "moneys received by the comptroller of the city of Brooklyn from the excise commissioners of such city; of adjudging chapter 169 of the Laws of 1877 to be unconstitutional, null and void; and of compelling the Inebriates’ Home of Bangs County to account and pay over to the treasurer of the city of Brooklyn all moneys received by it since the 20th day of April, 1877, under the supposed authority of chapter 169 of the Laws of 1877.

      R. Burnham Moffat, for the appellant.

      Almet F. Jenks, Corporation Counsel, for the defendants, the city officials (respondents).

      James C. Church, for the Inebriates’ Home, respondent.
   Barnard, P. J.:

The Inebriates’ Home for Kings County was incorporated by chapter 843, Laws of 1867. By the terms of this act twelve per cent of the moneys received for licenses granted in Kings county, with certain deductions therefrom not material to the question presented, were to be paid to the Inebriates’ Home. - The county of Kings was then a portion of what was known as the metropolitan police district. The entire amount of the fines received for violations of the excise law in Kings county were to be paid to the home also. The act was an extremely beneficial one, and was, by its terms, of a public character. The trustees could require persons who were held in the Kings county jail and penitentiary to be transferred to the home, and magistrates were required to commit persons convicted of intoxication, or as habitual drunkards, for a period not exceeding six months, and such persons were to be discharged — one class in ten days and the other in thirty days — unless transferred to the home. The excise money received by the home was to be applied for the purposes of the home, “ and for no other purpose.” The act provided for the creation of branches of industry, and that the inebriates should receive compensation for their services. By chapter 687 of the Laws of 1872 the Legislature passed an act providing for the means of support of the home directly out of excise money of Kings county and the city of Brooklyn, as the metropolitan police district has ceased to exist. This act increased the obligation of the home, and made it, in a still larger sense, a public institution. By chapter 627 of the Laws of 1875 the Legislature passed an act amending the act of 1872. The act created new incorporations by the 1st and 2d sections, and then proceeded to amend section 1 of the act of 1872 “ so as to read as follows.” Section 1 then provided that the excise money of Brooklyn city, not exceeding twelve per cent, should be paid to the home. Section 2 of the act of 1872 was repealed. Other parts of the act of 1872 were silently omitted, and additional powers were given still increasing the charter of the home as a public institution for inebriate paupers. By chapter 169 of the Laws of 1877 the Legislature again amended the charter of the defendant by amending section 1 of the Laws of 1872 so as to read as follows.” By this section fifteen per cent of the city excise money, and also excise money from the outlying towns of Kings county, was to be paid over to the Inebriates’ Home.

The complaint in this case is based upon this legal position: The act amending the 1st section of the act of 1867, “ so as to read as follows,” by the act of 1875, and the act of 1877 again amending that section “ so as to read as follows,” rendered the. payments required to be made to the Inebriates’ Home invalid. The act of 1867 was merged in the act of 1872, and the law of 1872 was practically repealed'by the law of 1875, and the act of 1877, by amending the act of 1872, had no force because the act of 1872 was dead. The case of People v. Wilmerding (136 N. Y. 368) is no authority for this view. The law of 1872 was never repealed in terms. One of its sections was amended and again amended to conform to the legislative intent, and there is a clear legislative intent to re-enact the law of 1872 so far as it was re-enacted by the Laws of 1877. The payments of the excise moneys to the home do not violate article 8, section 11 of the Constitution, as amended in 1871. The payments are for city purposes, and are directly within the exception in that article which asserts that the city may make such provisions for its poor as may be provided by law. In the case of The Shepherd’s Fold v. The Mayor (96 N. Y. 137) the Court of Appeals says that where the city was entitled to put destitute persons in the care of a corporation, the Legislature has the power to authorize the city to provide for the burden cast upon the corporation notwithstanding the constitutional provision in question. The defendant assumes a burden in respect to a class of persons who are charges upon the taxpayers of the city of Brooklyn, and the passing of the law in question, which reimburses the expenditures made on account of this unfortunate class and provides for its support, is perfectly legal as an act of tire Legislature, and is within the constitutional power of the Legislature.

The order should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Order denying plaintiff’s application for an injunction affirmed* with costs and disbursements.


text:
    Sophia M. Onderdonk, Respondent, v. The New York and Sea Beach Railway Company, Appellant.

      Railway company — bound to provide safe stations — stops — a passenger leaving a car must use caution — contributory negligence.

    A railway company is bound to provide a reasonably safe place at which its passengers may leave its cars, and to have its train stop long enough to permit a diligent passenger to do so.
    A passenger leaving the cars of a railway’Company is bound to use caution, and the question of contributory negligence should be submitted to a jury to determine.
    Appeal by the defendant, The New York and Sea Beach Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of March, 1893, upon the verdict of a jury rendered at the Kings County Circuit, and also from an order entered in said clerk’s office on the 21st day of April, 1893, denying the defendant’s motion for a new trial.
    This action was brought to recover damages alleged to have been sustained by the plaintiff by reason of the defendant’s neglect in failing to provide safe.and suitable means whereby the plaintiff could alight from the defendant’s car. The complaint alleged that the plaintiff was compelled to alight from the defendant’s car upon the side opposite its platform, and while thus engaged in alight- - ing from such car the defendant carelessly and negligently caused its said car to be put in motion, and that by reason of such motion the plaintiff was thrown violently to the ground and sustained bodily injuries, all of which took place -without fault or negligence on the part of the plaintiff.

      Charles C. Protheroe, for the appellant.

      William P. Pickett, for the respondent.
   Barnard, P. J.:

The plaintiff, on the 30th of July, 1890, was a passenger on the defendant’s railroad. She was traveling from Coney Island to Brooklyn city. Her station was Third avenue and Sixty-fifth street. On account of her failure to hear the station called by the conductor, she was carried by her station and went to the ferry terminus of the road. The conductor told her to get on a return train, which she did. She was directed to take the first car on the return train, which she also did. When the cars got to her station the engine and first car were carried so far into a tunnel that it was not possible to leave the car in the usual way. The car was beyond the platform. There was not sufficient room to alight on the platform side of the station between the car and the side of the tunnel. There' was no conductor near her. She attempted to get from the car on the left side of the track. As she put her hand to the guard of the car platform and attempted to put her foot upon the ground the, car started and threw her heavily upon the rough, gritty soil, ashes and cinders, which made the surface of the ground where she fell, and she was seriously injured. There is no difficulty in upholding the verdict of the jury that the accident was occasioned by the defendant’s negligence. The company was bound to provide a reasonably safe place at which the passengers could leave the car, and to wait long enough for a diligent passenger to be able to do so. The defendant failed in both respects. A safe place was provided, but the car ran by it, so that the plaintiff could not avail herself of it. While attempting to leave on the only side of the car which was available to her, the car started and threw her down before she got upon the ground. The case is fully supported by the Court of Appeals in McDonald v. The L. I. R. R. Co. (116 N. Y. 546).

The question of the negligence of the plaintiff which contributed to the accident was one for the jury. She was bound to use caution to escape danger, and the evidence fails to show that, under the situation in which she was placed, she failed in this duty. At all events, it was for the jury to say. (McClain v. Brooklyn City R. R. Co., 116 N. Y. 459.)

The judgment and order denying new trial sliould be affirmed, with costs.

Peatt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    In the Matter of the Petition of the Highway Commissioners of the Town of Islip for a Gate or Flagman at a Street Crossing in Sayville.

      Order directing the maintenance of an electric bell signal at a railroad crossing.

    At tlie crossing of a railroad with a street, a person going north could hear a train coming from the west for a short distance only, and could not, by reason of a curve in the tracks, see a train coming from the east until he got close to the crossing, unless, knowing just where to look, he looked between houses. In the summer, in addition to buildings which obstructed the view of the tracks, there were trees, which almost wholly concealed from view all trains approaching from the west.

      Held, that the proof abundantly justified an order directing such railroad to maintain an electric signal bell at the intersection of its road and such street.
    Appeal by tlie Long Island Railroad Company from an order of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1893, directing said company to erect and maintain in good order an electric signal bell at the intersection of its railroad with Railroad avenue in the village of Sayville in the town of Islip.
    The highway commissioners of the town of Islip presented a petition to the County Court of Suffolk county, which alleged that a request, in writing, had been presented to the superintendent and to the president of the Long Island Railroad Company asking them to station flagmen or to erect gates at specified railroad crossings which crossed at grade certain highways in the town of Islip; that the railroad company had neglected and refused to comply with such request in any particular although ample time had elapsed for them to do so, and that great danger was threatened to life and property through the failure of the company to comply with such request. Tbe relief asked for was an order directing the Long Island Railroad Company to station flagmen at all of suck crossings, or to erect gates thereat, and to place a person at each gate to open and close the same when an engine or train should pass, or for such order as should seem proper to the court.
    The answer of the Long Island Railroad Company denied that great danger was threatened to life and property through its failure to comply with the requests of the petitioners, and alleged that there was no necessity for flagmen or gates at such crossings, and that travelers on the highways approaching its tracks at such crossings could observe the approach of trains by the exercise of due care, and that there was no necessity for additional safeguards at such points.

      William J. Kelly, for the Long Island Railroad Company, appellant.

      Timothy M. Griffing, for the petitioners, respondents.
   Barnard, P. J.:

The petition of the commissioners of highways of the town of Islip asks that flagmen be stationed by the Long Island Railroad Company at various points in the town of Islip where the tracks of the railroad cross the highways of the town on grade, under section 33 of the General Railroad Law (Chap. 565 of the Laws of 1890). The court ordered a flagman at the point where the railroad crosses Railroad avenue in the village of Say ville. The court also made an order that the railroad company keep a flagman at the junction of the railroad tracks and the highway called Second avenue in Bay Shore; and that the company erect and maintain a signal bell at the intersection of the railroad track with Fifth avenue in Bay Shore village. The appeal is from both these orders. The proof shows that at the crossing of Railroad avenue, Sayville, a traveler going north can hear a railroad train coming from the west but a short distance. One cannot see the train coming from the east until one gets close to the crossing. A person who knows the locality can look between houses if he knows just where to look, otherwise not. One cannot see to the east on the railroad track by reason of a curve in the road. In the summer, besides the buildings which obstruct the view, there are trees which almost wholly destroy all view of the railroad trains approaching from the west.

The proof abundantly sustained the order as to Railroad avenue, Sayville, and the order should be affirmed, with costs and disbursements.

Peatt and DyKMAN, JJ., concurred.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Application of The Highway Commissioners of the Town of Brookhaven for Flagmen at Street Crossings in Patchogue.

      Order that an electric dell signal he erected at a railroad crossing — facts authorizing such order.

    Section 33 of the General Kailroad. Act (Oliap. 565 of 1890) is broad enough to authorize the County Court, in a proper case, to order an electric hell signal to he erected and maintained where a railroad passes over a highway at grade.
    A street was crossed "by a railroad at grade at an acute angle, and it was with great difficulty that one going east could see a west-hound train, and east-bound trains were still more dangerous to travelers. The station signals when given could not he heard, and they were not always given. The view of the track of one coming in the same direction as the train was for a very short and varying distance, and the street was a crowded one.

      Meld, that while the proof showed that persons of extreme prudence and caution might escape accident, a direction by the County Court that an electric bell signal he erected and maintained at such crossing was proper.
    Appeal by tbe Long Island Railroad Company from an order made by tbe County Court of Suffolk county and entered in tbe office of tbe clerk of tbe county of Suffolk on tbe 14tb day of August, 1893, directing said company to erect and maintain an electric signal bell at the intersection of its railroad with Main street, east of tbe village of Patchogue in the town of Brookhaven.
    The highway commissioners of tbe town of Brookhaven presented a petition to tbe County Court of Suffolk county, which alleged that a request, in writing, had been presented to tbe general manager and to tbe superintendent of tbe Long Island Railroad Company, asking that company to station flagmen or to erect gates at specified railroad crossings which crossed certain highways in East Patchogue, in the town of Brookhaven, at grade ; that the railroad company had neglected and refused to comply with such request in any particular, although ample time had elapsed for them to do so, and that great danger was threatened to life and property through the failure of the company to comply with such request. The relief asked was for an order directing the Long Island Railroad Company to station flagmen at all of such crossings, or to erect gates thereat, and to place a person at each gate to open and close the same when an engine or train should pass, or for such order as should seem proper to the court.
    The answer of the Long Island Railroad Company denied that great danger was threatened to life and property through its failure to comply with the requests of the petitioners, and alleged that there was no necessity for flagmen or gates at such crossings, and that travelers on the highways approaching its tracks at such crossings could observe the approach of trains by the exercise of due care, and that there was'no necessity for additional safeguards at such points.

      W. J. Kelly, for the Long Island Railroad Company, appellant.

      Timothy M. Griffing, for the petitioners, respondents.
   Barnard, P. J.:

The Long Island railroad crosses at grade three of the streets of Patchogue. The commissioners of highways of the town of Brook-haven, which includes the village, have applied to the county judge of Suffolk for a flagman at eacli crossing for the public safety. The proceedings were had before the county judge upon the issue made by the railroad company, that flagmen were not necessary at the crossings in question. The court decided that an electric bell was needed at the Main street crossing in Patchogue. The appeal is from this order. Section 33 of the General Railroad Act (Chap. 565 of the Laws of 1890) authorizes a County Court to make an order to station flagmen at points where railroads pass over a highway at grade, or that gates be erected and maintained at such points, or the court may make such other order respecting the same as may be deemed proper. The section is broad enough for the court to order the electric bell signal, if the case is a proper one.

The evidence shows a justifiable case for the exercise of this power by the court. Main street is crossed by the railroad at grade at an ■ acute angle. It is with great difficulty that a traveler going east can see the train approaching from the east. The trains going east are still more dangerous. You cannot hear the signal when given, and there is proof that the station signals are not always given. The acute angle at which the railroad crosses the street makes it difficult to see a train going the same direction as the highway traveler. The traveler has to look behind him and then the point of vision is very short and varying in distance. Three hundred feet from the crossing the point of vision is but 100 feet to the west, while at a point a little over 400 feet from the crossing there is a very full view both east and west. The street is a crowded street. The proof shows that persons of extreme prudence and caution may escape accident, but the public apprehension of the danger of the crossing rests on solid grounds.

The company ought, therefore, to comply with the order of the County Court, and the order is affirmed, with costs and disbursements.

Peatt and Dtkmaet, JJ., concurred.

Order affirmed, with costs and disbursements.


author: BabNARd, P. J.:

text:
    In the Matter of the Petition of the Highway Commissioners of the Town of Islip for a Gate or Flagman at a Street Crossing in Bay Shore.

      Signals at railroad crossings below grade.

    The right to direct a railroad to give signals at railroad crossings of highways under section 33 of the General Railroad Act (Ohap. 565 of 1890) applies where the railroad crosses the highway at some two feet helow grade.
    Appeal by the Long Island Bailroad Company from an order of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1893, directing said company to station a flagman at the intersection of its railroad with Second avenue, and to erect and maintain in good order an electric signal bell at the intersection of its railroad with Fifth avenue in the village of Bay Shore in the town of Islip.

      Tlie highway commissioners of tbe town of Islip presented a petition to tbe County Court of Suffolk county, wbicb alleged that a request, in writing, bad been presented to tbe superintendent and to tbe president of tbe Long Island Railroad Company, asking them to station flagmen or to erect gates at specified railroad crossings, wbicli crossed certain highways in the town of Islip at grade; that the railroad company had neglected and refused to comply with such request in any particular, although ample time bad elapsed for them to do so, and that great danger was threatened to life and property through the failure of the company to comply with such request. The relief asked was for an order directing the Long-Island Railroad Company to' station flagmen at all of such crossings, or to erect gates thereat, and to place a person at each gate to open and close the same, when an engine or train should pass, or for such order as should seem proper to the court.
    The answer of the Long Island Railroad Company denied that great clanger was threatened to life and property through its failure to comply with the requests of the petitioners, and alleged that there was no necessity for flagmen or gates at such crossings, and that travelers on the highways approaching its tracks at such crossings could observe the approach of trains by the exercise of due care, and that there was no necessity for additional safeguards at such points.

      William J. Kelly, for the Long Island Railroad Company, appellant.

      Timothy M. Grijjmg, for the petitioners, respondents.
   BabNARd, P. J.:

The County Court of Suffolk county made an order upon the application of the commissioners of highways of Islip, Suffolk county, that the Long Island railroad station a flagman at the intersection of their road with Second avenue, Bay Shore, and that they erect and maintain a signal electric bell at the intersection of the railroad with Fifth avenue in this village. The proof shows that as to the Fifth avenue crossing, the first sight of the railroad train coming from the west by a highway traveler coming from the north is about eighty or l^nety feet from the track. North of the track there are maple trees. There are buildings on Fifth avenue on three of the corners made by the railroad intersection with the avenue. There is a curve in the railroad track. The track is sunken some two feet. There is a high board fence near the crossing. One witness testifies that the prevailing condition at the crossing obstructs the view entirely.” The trains in summer pass at a high rate of speed and about 300 vehicles a day cross the track at this point. There is no proof returned as to the crossing at Second avenue. The right to the order in both cases is assailed upon the ground that the railroad company is ordered to give signals at railroad crossings of highways on grade. Such a view cannot be upheld. By section 33 of chapter 565 of the Laws of 1890, the Legislature intended to provide for further security to the public traveler upon highways, as against railroad crossings then at grade, in cases of peculiar danger. The section providing for signals in all cases was a general rule, but in peculiar cases of danger additional security should be afforded by the railroad. This was to be secured by application by those whose duty it was to keep the highways safe and upon notice to the railroad. If the appellant’s view is right section 33 is nugatory.

The order should be affirmed, with costs and disbursements on each appeal.

Pratt and Dykman, JJ., concurred.

Order affirmed, with costs and disbursements.


author: BARNARD, P. J.:

text:
    Daniel Miller and Another, Appellants, v. Nathan M. Kosch, Respondent.

      Execution — when dormant — how rendered active — confession of judgment — when ' sufficient.

    An execution is dormant only wMle it is held under a direction that it is not to he executed. A notice to execute a dormant execution renders it active and valid.
    A confession of judgment is sufficient which states the sum for which judgment is to he entered; that in certain specified years the plaintiff had advanced and paid to the defendant, at his request, a specified sum of money, which the defendant had promised to pay, hut had not paid, in whole or in part; that such sum was due and owing hy the defendant to the plaintiff ; that the money lent, without interest, amounted to such sum, and that the borrower had repeatedly promised to pay the same.
    Appeal by the plaintiffs, Daniel Miller and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Rockland on the 31st day of July, 1893, upon -a decision of the court rendered after a trial before the court without a jury.
    On October 6, 1891, Kywe M. Hoffman confessed judgment in favor of Nathan M. Kosch for $1,815.14. Judgment on such confession was duly entered and docketed, and an execirtion was issued to the sheriff of the county of Rockland.
    1891, Hoffman confessed judgment in favor of Miller & Brother for $605.80, and judgment was duly entered and docketed, and an execution was issued to the sheriff of Rockland county.
    6, 1891, an execution against Hoffman in favor of the Nyack National Bank was placed in the hands of the said sheriff. The sheriff levied upon property belonging to Hoffman, sold the same, and satisfied the execution in favor of the Nyack National Bank. There then remained in His hands the sum of $411. Both Miller & Brother and Kosch demanded of the sheriff that such amount be applied on the executions issued upon their respective judgments, and this action was brought by Miller & Brother against the sheriff of the county of Rockland to obtain such sum of $411, and thereafter Kosch was substituted as the defendant therein.

      Snider & Hopper, for the appellants.

      Arthur S. Tompkins, for the respondent.
   BARNARD, P. J.:

county collected of one Kywe M. Hoffman $411 by virtue of two executions, one in favor of the plaintiffs and one in favor of the defendant. The defendant’s execution was first put in the hands of the sheriff. The execution creditors each claimed the money and the sheriff was permitted to deposit the money in court in an action brought by the junior execution creditors and the defendant was made a party. The only question made by the pleadings is whether the defendant’s, the prior execution, was dormant in the sheriff’s hands or was an execution upon a fraudulent judgment. Both judgments were by confession, and neither was impeached by the testimony on the trial. The question of dormancy rests upon the fact that, after the defendant’s execution was received, by the sheriff, the defendant’s attorney requested the sheriff to make no levy and to take no steps to enforce the execution until further instructions from him. The attorney directed the sheriff to hold the first lien as against other executions, and when the plaintiffs’ execution was received by him he levied on both executions. The defendant’s attorney makes a full explanation of the request, stating that efforts were being made to settle the claim, and that shortly after the direction to the sheriff, and before the plaintiffs’ judgment was obtained, he directed the sheriff to make a levy at once. The execution, if dormant while the sheriff held it not to be executed, was revived by the notice, before the plaintiffs’ execution was received, to execute it, and rendered active and valid, and the levy under it was good. The execution was dormant only while the sheriff held it not to be executed. (Smith v. Erwin, 77 N. Y. 466.)

In the case of Sage v. Woodin (66 N. Y. 578) the court found the execution to have been dormant under circumstances quite different from those of this case.

The confession of the defendant’s judgment is sufficient. It states the sum for which judgment is to be entered. It states that in 1886, 1881, 1888, 1889, 1890 and 1891, the plaintiff advanced and paid to the defendant, at his request, $1,399.11, which the defendant promised to pay and has not paid, in whole or in part, and that the sum is due and owing by the defendant in the confession to the plaintiff therein. The statement is that the money loaned, without interest, amounts to $1,399.17, and that the borrower has repeatedly promised to pay the same. The confession is supported by the case of Freligh v. Brink (22 N. Y. 418) and by Harrison v. Gibbons (71 id. 58); and is not in conflict with Wood v. Mitchell (117 id. 439).

The judgment should be affirmed, with costs.

Pbatt, J\, concurred.

Judgment affirmed, with costs.