author: Merwin, J.:

text:
    RICHARD M. ODERKIRK, Appellant, v. JAMES C. FARGO, as President of AMERICAN EXPRESS COMPANY, Respondent.

      Mcpress company — responsibility of, for a trunk left at its office after a receipt therefor is signed and the charges are paid.

    In an action brought against an express company to recover damages for the loss of the plaintiff’s trunk, it appeared that the trunk reached the office of the company, at Watertown, on Saturday, and that the following Monday, in the forenoon, the plaintiff called at the office, stated that he wanted to take out some things that belonged to one Smith and then leave the trunk there until the following day or the next, to which the,agent of the company replied that if the plaintiff paid the charges and signed the receipt book he could do so, and that it would be all right; whereupon the plaintiff paid the charges and signed the receipt book, took out the things, and then locked the trunk and left it at the office of the company. On the following Wednesday he went to the office and was informed by the agent that- the trunk had been delivered to other .parties the day before upon the assumption that the plaintiff had sent for it.
    The court, upon the ground that there had been a complete delivery of the trunk to the plaintiff, and that the company ceased to be liable in any capacity therefor, and that the agreement with the agent that the trank might remain did not bind the defendant, granted a nonsuit on the trial.

      Held, that as the jury might have found that the agent of the company in making the arrangement for leaving the trunk was acting within the apparent scope of his authority, and that such arrangement was made before the payment of the charges and signing of the receipt, and as there had been no termination of the transaction with the company so far as the custody of what was left in the trunk was concerned, as that remained with it, as it had before, in the office of the company and under the control of its agent, that a proper case was presented for submission to the jury and that the nonsuit was erroneously granted.
    Appeal by the plaintiff Richard Iff Oderkirk from a judgment of Jefferson County Court, entered February 12, 1890, in favor of the defendant .against the plaintiff, dismissing the complaint, .with costs.
    The action was com.menced in Justice’s Court, and was. brought to recover the value of a trunk and its contents which had been sent by direction of plaintiff by express from Stony Creek, "Warren county, N. Y., to Watertown, N. Y., and carried over the defendant’s line from Rome to Watertown, but not,'as claimed by plaintiff, delivered to him. The plaintiff recovered before the justice; the defendant appealed to the County Court, and upon the trial there the plaintiff was nonsuited.

      E..O. Emerson, for the appellant.

      Thomas F. Kearns, for the respondent.
   Merwin, J.:

Upon the trial-of this case it appeared- that the trunk of plaintiff reached the office of the defendant company, at Watertown, on Saturday, October 26, 1889. The following Monday, in the forenoon, the plaintiff, who lived a short distance out of town, called at the office and found there his trunk. He testifies that on that occasion he said to the agent of the company, there in charge of the office, that he wanted to take some things out that belonged to one Smith and then leave the trunk there till the following day, or the next, to enable him to have it taken to his place by some teams drawing brick, 'and the agent replied that, if the plaintiff paid the charges and signed the receipt book, he could take the things out and leave the trunk and it would be all right; that he then paid the charges and signed the receipt, opened the trunk and took out some things, then locked it and left it there. Upon the following "Wednesday he went again to the office and was informed by the agent that the trunk had been delivered do other parties the day before, upon the supposition that the plaintiff sent for it. The plaintiff further testified that he never authorized any one to go and get the trunk, and had never received it. As to the delivery, the agent testified that two men with a team called at the office, asked for the Oderkirk trunk, said that the charges were paid and that it was receipted for, and that he then pointed out to them the trunk and they took it, and that he did not ask them for any order, or whether they-had any authority from Oderkirk to send for it, and he didn’t know who the men were.

The claim of the defendant is that, upon the plaintifFs evidence, there was a complete delivery. to the plaintiff and the company ceased to be liable in any capacity, and that any agreement with the agent that the trunk might remain did not bind the defendant.

The court adopted this view and granted a nonsuit. The plaintiff asked to go to the jury upon the question whether there was such a delivery by defendant and acceptance by plaintiff as terminated the obligation of the defendant as a common carrier; also, on the question whether the delivery of the property by defendant’s agent to a third party was such negligence as rendered the- defendant liable as warehouseman; also, as to whether the defendant -did not assume the obligation of gratuitous bailee, and was not guilty of such gross negligence, in the misdelivery of the property as made it liable. The court denied each of these -requests and the plaintiff excepted.

The property was allowed to remain at the express office for the convenience solely of- the plaintiff. This, according to the doctrine laid down' in Fenner v. Buffalo and State Line Railroad Company (44 N. Y., 505), would relieve- .the defendant from liability as a common carrier. In that case the goods, after the freight was paid and the receipt signed, were, for the convenience of both parties, allowed to remain over- night in the -freight-house of the-defendant,' and during the night the freight-house and goods were burned up without any fault or negligence of - defendant. It was held that defendant could not be held as an insurer.

It. does not, however, follow that because liability as a common carrier had ceased there was no liability at all. In Tarbell v. Royal Exchange Shipping Company (110 N. Y., 170) it is said: “ That in many cases a carrier’s whole duty in respect to goods carried by him is not discharged by a constructive delivery, terminating his strict responsibility as a carrier. Although a consignee may neglect to accept or receive the goods, the carrier is not thereby justified in abandoning them, or in negligently • exposing them to injury. * * * So long as he has the custody of the goods, although there has been a constructive delivery which exempts him from liability as carrier, there supervenes upon the original contract of carriage, by implication of law, a duty as bailee or warehouseman to take ordinary care of the property.” Upon that basis the defendant in that case was held to be liable for a portion of the goods lost or taken by wrong parties during the process of delivery.

In Matteson v. New York Central and Hudson River Railroad Company (76 N. Y., 381), which was an action to recover for loss of baggage, the plaintiff upon her arrival at her destination gave her cheeks, three in number, to the baggage master for the purpose of obtaining one of her packages, and informed him that she desired to leave the other two there for a week or two. This the baggage master told her she could do by giving him the checks, and he assured her the trunks would be just as safe without the checks as with'them. The checks and two trunks were theretrpon left with him, and when plaintiff called for one of the trunks afterwards it could not be found, it having been delivered by the baggage master to a stranger. The baggage master was prohibited by the defendant from thus keeping baggage, and he testified that he so informed plaintiff, but this she denied. It was held to be a question for the jury whether there was a delivery of the trunk by defendant to plaintiff and a termination of its responsibility .

In the present case, according to the evidence of the plaintiff, the agent of the defendant, before the charges were paid and the property receipted, agreed that plaintiff might take away a portion and leave the balance, with the assurance that it would be all right. If this was so, it should not be said, as matter of law, that there was a delivery to and acceptance by the plaintiff of the whole. There was no termination of the transaction with the carrier. The custody of what was left remained as it had been before. It was in the office of the company and under the control of its agent.

But it is said that the agent of the company had no power to bind the company to the agreement or consent that the property be left. This seems to have been the main ground for the nonsuit. The agent testifies that he had no such authority, but he does not say that he so informed the plaintiff. If, as testified to by the plaintiff, and as might have been found by the jury, the arrangement for leaving the trunk was made before the payment of the charges and the signing of the receipt, and with a view to give, the plaintiff a reasonable opportunity to send for his goods, it would be a matter within the apparent scope of the authority of the agent, managing there the business of the company, and would bind the company in the- absence of any notice to the plaintiff of any restriction on the agent’s authority. (Curtis v. Avon, G. and M. M. R. R. Co., 49 Barb, 148; Isaacson v. N. Y. C. and H. R. R. R. Co., 94 N. Y., 278 ; Story on Agency, § 126.) At least it should not be said, as matter of law, that the company would not be liable.

It follows that the nonsuit was improperly granted, and that the request of the plaintiff to go to the jury on the question of the negligence of the defendant as warehouseman should have been granted.

Judgment is reversed upon the exceptions and new trial ordered, costs to abide the event.

Martin, J., concurred ; Hardin, P. J., not sitting.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of the SPLIT ROCK CABLE COMPANY to Acquire Certain Real Estate Owned by CHARLES HUGHES and Others.

      Eminent domain—what must be shown by a tram-way company seeking to acquire , land—what is not a public use.

    In proceedings to condemn land under the right of eminent domain for the purposes of the road-way of an elevated tram-way company, incorporated under chapter 462 of the Laws of 1888, it is incumbent on the petitioner to show, first, a legislative warrant for such proceedings on its part; and, second, if the right is challenged, that the business which it is organized to carry on is public, and that the taking of private property for the purposes of the corporation is a taking for public use.

      Tlie true criterion by which to judge of the character of the use is to determine whether the public may enjoy it by right or only by permission.
    Where an elevated tram-way consists of two elevated cables about ten feet apart, on which boxes are run by means of a trolley or pulley, one line taking the boxes that have been filled, and the other line taking back the boxes that are empty, and there is no access at one end of the tram-way, except over a private road,- so that the public cannot make use of it at that end, except at the will of the owner of such private road, and where the service of the tram-way is intended to subserve the interests of one particular company, and the general public have no opportunity to use it, except as there may be a surplus capacity after supplying the uncertain and increasing wants of such company, the tramway company is not in the position of a common carrier, and land sought to be taken for its purposes .cannot be deemed to be taken for public use.
    Appeal by Charles Hughes, James Hughes and Eugene Hughes, certain land holders, from an order of the Supreme Court, made at a Special Term thereof, and entered in .the Onondaga county clerk’s office, November, 1889, which held that no sufficient cause was shown against the granting of the prayer of the petitioner in the above-entitled matter as to the parcel of real estate described in said order, and appointed commissioners to appraise and ascertain the compensation to be made to such landowners, and directed the place and time of the first meeting of such commissioners.
    The proceedings were instituted by the Split Rock Cable Road Company for the purpose of acquiring title to certain real estate for its purposes.
    The petition of the applicant, verified October 15, 1889, alleged that it- was incorporated on the 19th of: June, 1888, under an act of the legislature entitled “An act to authorize the formation of elevated tram-way corporations and to regulate the same,” passed June 2, 1888; that it was its intention to construct and finish a railroad, as stated in its articles of association, commencing at or near Split Rock in the town of Onondaga, and running thence by the most direct and feasible route, via the towns of Onondaga, Camillus and Geddes, in the county of Onondaga, and terminating at or near Onondaga lake in the town of Geddes; that $10,000 for every mile of the road proposed to be constructed had been in good faith subscribed to the capital stock, and ten per cent thereof paid in; that the company had surveyed the land or route of its proposed róad, and had made a map or survey thereof, by' which its route or line was designated, and it had located its road according to such survey and filed certificates thereof, signed by a majority of its directors, in the office of the county clerk of Onondaga county, that being the only county through or in which the road was to be constructed; that its tramway or road had been completed and was in operation from a point about the northern line of premises in the town of Onondaga formerly owned by James Hughes, deceased, northerly through Onondaga, Oamillus and Geddes to a point at the Erie canal at or near the works of the Solvay Process Company; that the real estate the petitioner sought to acquire is five and thirty-six one-hundredths acres in the town of Onondaga, its description being given, and the names and places of residence of those who own or claim to own the lands were stated to be Charles Hughes, James Hughes and Eugene Hughes, of Syracuse, and the Solvay Process Company of Geddes; that the described real estate was required and necessary for the purposes of the incorporation of the petitioner for the purpose of constructing and operating its road, and of erecting and maintaining necessary and convenient buildings, stations, fixtures and machinery for the accommodation and transaction of its business; that the petitioner had not' been able to acquire title for the reason that the owners refused to' sell for a reasonable compensation.
    The present appellants answered, admitting that they owned the-•real estate described in the petition, and that the petitioner had constructed a double cable from Split Rock to the Solvay Process Company for the purpose of carrying stone to that company, and denying, in substance, all the other allegations. They also alleged that the petitioner was a private corporation for private uses; that the lands sought to be taken were not necessary for its buildings, but valuable quarry lands, and were only sought for the use of the Solvay Process Company, and that the Solvay Company owned, controlled and operated the petitioner as an adjunct to their business in the manufacture of soda ash, and that the cable-road company was; intended for no other use.

      Hogan da Stern, for the appellants.

      Tracy, McLennan da Aylmq, for the petitioner, respondent.
   Merwin, J.:

In cases of this kind, it is incumbent on the petitioner to show first a legislative warrant, and second, if the right is challenged, that the business, which it is organized to carry on, is public, and that the taking of private property for the purposes of the corporation is a taking for public use. (Matter of Niagara Falls and Whirlpool R. R. Co., 108 N. Y., 373.)

The articles of association of the petitioner, which are acknowledged June 13, 1888, and filed June 19, 1888, state that the subscribers “ have associated together as an elevated tram-way corporation to continue in existence for the period of fifty years, for the purpose of constructing, maintaining and operating an Elevated Tram-way between Split Rockand Onondaga lake, a distance of about four miles, both of which places are in Onondaga county.” The amount of the capital stock is stated to be $52,000 and the number of directors three. The number of shares that each subscriber agrees to take is set opposite his name and the aggregate amount so agreed to be taken is the full amount of the capital stock. Nothing is said in the articles as to what statute the incorporation is designed to be under, but it is claimed, and it may be inferred, that the incorporation is under chapter 462 of the Laws of 1888, entitled “An act to authorize the formation of elevated tram-way corporations and to regulate the same,” passed June 2, 1888 and taking effect immediately.

By section 1 of that act, it is provided that any number of persons, not less than thirteen, “ may form a company for the purpose of constructing, maintaining and operating an elevated tram-way, constructed of poles, piers, wire, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other receptacles for hire; and for that purpose may make and sign articles of association, in which shall be stated the name of the company ; the number of years the same is to continue; the places from and to which the said tram-way is to be constructed, maintained and operated; the length of said tram-way as near as may be; the name of each county in this State through or in which it is made or intended to be made; the amount of the capital stock of the company and the number of shares of which said capital stock shall consist, and the names and places of residence of the directors of the company, which shall not be less than three, who shall manage its affairs for the first year, and until others are chosen in their places.” By section 6 it is provided that every corporation formed under the act “ shall have power and authority (1) to cause such examination and surveys for its proposed tram-way to be made as may be necessary to the selection of the most advantageous .route, and for such purposes, by its officers and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damages which shall be done thereto; (2) to lay out its tram-way and to construct the same as hereby provided.” By section 7 it is provided that in case any company formed under this act is unable to agree for the purchase, use or lease of any real estate required for the purposes of its incorporation, it shall have the right to acquire title in fee to the same in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, under the provisions of chapter 140 of the Laws of 1850 and the several acts amending the same or supplemental thereto, so far as the same are applicable. By section 9 any corporation formed under the act has power and authority to erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and transaction of its business. The act does not in terms provide that the property taken shall be deemed to be for public use, or that the tram-ways are to be constructed for public use.

The capital stock of the petitioner was all paid in, and in June, 1889, it completed its tram-way from Split Rock northerly to near the Erie canal, a distance of about three and a half miles, and since then it has been in operation. The tram-way consists of two elevated cables, held up on supports and parallel to each other, about ten feet apart, on which run buckets by means of a trolley or pulley, one line taking the buckets that have been filled and the other line taking back the buckets which are empty. The location of the southern terminus of this tram-way is upon the land of the petitioner, just north of the lands now desired to be taken, and is in a gorge about ninety feet lower than the Hughes land. This terminus seems to be the southern terminus of the line of the tramway as indicated upon the map or profile originally filed by the company. The company has filed-no map indieating -that its route extended over the lands in question, and the original map filed by the company did not indicate that the lands in question were to be taken for the purposes of the company. In the vicinity of this southern terminus, as so located, the Solvay Process Company owns upwards of 100 acres of land, upon which are quarries, and which entirely surrounds the terminus as well as the Hughes lands, and shuts them out entirely from any highway. There is to the Hughes land a road, but it is owned by individuals, and is not a public road. Who are the owners of this private road does not appear. The highway is about 1,200 feet distant.

The northern terminus of the tram-way, as now built, is on the land of the Solvay Company, at the lime kiln of their works, about 500 feet from the Erie canal The route of the tram-way, as projected, extends northerly some distance, over the Erie canal and the Central railroad to Onondaga lake.

The carrying capacity of the road, as now constructed, is testified to be 750 tons a day. They have thus far carried for the Solvay Company, 350 to 400 tons of stone a day, and seem to have been kept running night and day. They have not carried anything for any other party. The Solvay Company is a large concern and its business is increasing. The incorporators of the petitioner were practically all stockholders in the Solvay Company. The surplus of the capacity of the road, after supplying the Solvay Company is, according to the evidence of the president of the petitioner, to be devoted to public use in carrying, in buckets, freight offered to it by any person, suitable to the buckets and to the road. What that surplus may be, as the Solvay Company continues to develop, is uncertain. The evidence clearly shows that the business of the petitioner will be subservient to the Solvay Company. The road has thus far been entirely for its benefit.

The intention of the petitioner, as its president testifies, is to use the land in question to increase its terminal facilities by building tram-ways on the surface to facilitate the carrying of stone to the cable station, by erecting buildings for the .storage of freight and for repair shops, and to furnish means of access. The petitioner has other land that might be used for terminal facilities, but it is not so convenient. Aside from stone, the chief subject for freight is said to be coal, and, in regard to that, the president testifies, “ we intend to make a contract vyith some private individual to furnish him with coal, so that he can.transport it or sell it to people in that vicinity; to establish á coal yard the same as anywhere, not that the Solvay Process Company or the Cable Company will establish a coal yard; some individual will have to run it; with whom we will make a contract to carry coal; and we propose to limit that contract to one individual for the present.” This would hardly be a public use.

The appellants own the property in question, and it consists of a valuable quarry. Their contention is that the only object of this proceeding is to compel them to sell it for the benefit of the Solvay Company.

If the question of public use is to be determined from the nature of the business of the Cable Company, as described in its articles of association,' then there would be a failure to show a design to construct a way for public use. No such design is stated in the articles. An elevated tram-way is not necessarily public. It may or may not be. The public use or purpose should affirmatively appear. (Attorney-General v. City of Eau Claire, 37 Wis., 401.) If left optional with the future management of the company, it would at least be doubtful whether a good basis would be furnished for the exercise of the right of eminent domain. Nor does the statute of 1888 fix a public character upon such corporations except possibly by way of inference. The organizations under that act are not limited to roads for public use, nor is the property acquired declared to be for public use. In this respect it differs from the present railroad act (chap. 140 of 1850, §§ 1, 18) and from the act for the organization of pipe lines. (Ohap. 203 of 18?8, §§ 1, 20.)

The president of the company, however, testifies that it is the intention of the corporation to carry all freight that may be offered of the kind it can carry, up to the extent of its capacity. In other words, it is intended that the corporation shall be a public one in the nature of a highway. What action the board of directors, as such, may have taken on the subject does not appear. So that, apparently, there is nothing to prevent the board of directors or some future president from having a different view. The plant of the company has cost about fifty thousand dollars, so that the capital is substantially exhausted. Nothing is shown as to the means of the company for enlarging its boundaries or increasing its facilities.

The true criterion by which to judge of the'character of the use is, whether the public may enjoy it by right or only by permission. (Mills on Eminent Domain, § 14; Kettle River R. Co. v. Eastern Ry. Co. of Minn., 41 Minn., 461.) The undertaking of a common carrier is to carry for all people indifferently. (2 Kent’s Com., 598.)

If, in the present case, there is no access to the southerly terminal except over a private road, then the public cannot, at that end, use the cable except at the will of the owner of such private road, or of the Solvay Company, the owner of the surrounding territory. So, if the Cable Company is run subservient to the interest of the Solvay Company, and the general public have no opportunity to use it except as there may be a surplus capacity after supplying the uncertain and increasing wants of the Solvay Company, then the Cable Company is not in the position of a common carrier. The service of the Solvay Company is the main object; the service of the public is subordinate and contingent. For such a service the right of eminent domain ’should not be exercised. (Matter of Application of Eureka Basin W. and M. Co., 96 N. Y., 42; Matter of Niagara Whirlpool Ry. Co., 108 id., 375.) As said by Ruger, Ch. J., in Matter of Staten Island Rapid Transit Company (103 N. Y., 257), “ the exercise of this power is in derogation of individual rights, and is always burdensome and often injurious to the owner beyond the power of pecuniary compensation to wholly redress, and’ should be allowed only when the necessity for the land clearly appears, and it proposed use clearly embraced within the legitimate objects of the power.”

Having in view the manner and form of the organization of the petitioner, and its subsequent acts, the location of its southerly terminus and the absence of public approach, its private use thus far and .the lack of opportunity for the public to use, except after the wants of another company are supplied, and its apparent subserviency to the interests of that company, and the contingent and uncertain character of any future development for the benefit of the public, we are of the opinion that the evidence does not establish the conclusion that the taking here sought to be made is for public use.

It follows that the order should be reversed and proceedings dismissed, with costs. (Code of Civ. Pro., § 3240; 96 N. Y., 42, 49, supra; Matter of N. Y., L. and W. R. R. Co., 26 Hun, 592.)

Hardin, P. J., and Martin, J., concurred.

Order reversed and proceedings dismissed, with costs. (Code of Civ. Pro., § 3240 ; 96 N. Y., 42; 26 Hun, 592.)


author: Pratt, J.:

text:
    CHARLES BENNER, Respondent, v. THE ATLANTIC DREDGING COMPANY, Appellant.

      Damage from, blasting—negligence need not be shown.

    In an action brought to recover for the damages which resulted to the plaintiff’s dwelling by reason of the blasting of rocks at Hell Gate in the East river, at or near Long Island City,by the defendant while acting under a contract with the United States, the court charged the jury that the defendant was responsible for such injury, if it caused it, and refused to charge that to make the defendant liable it must appear that the work was done in a negligent manner.

      Held, that the charge was correct.
    Appeal by the defendant, the Atlantic Dredging Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 14th day of January, 1890, and also from an order denying defendant’s motion for a new trial upon the minutes of the court entered in said clerk’s office on the 13th day of January, 1890, after a trial at the Queens County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $525.
    The action was brought to recover the damages resulting from an injury done to the plaintiff’s building, by reason of the blasting of rock in proximity thereto, by the defendant, which acted under a contract with certain United States government officials in removing
      the rock from under the water at Hell Gate, in the East river, opposite Astoria, L. I.

      Benjamin, W. Downing, for the appellant.

      Henry O. Wilcox, for the respondent.
   Pratt, J.:

The verdict established that the blasting done by defendant at Hell Gate shook the walls of plaintiffs house, inflicting injury.

The court charged that, for such injury, defendant was responsible, and refused to charge that, to make defendant liable, it must appear that the work was done in a negligent manner.

We think the instruction was correct. If a desirable work cannot be done without shaking down a neighbor’s house, it would seem that the work should not be performed unless the doer was prepared to make compensation for the injury inflicted.

That rule seems best to promote the general welfare. The public are not benefited by a change that inflicts an injury greater than the resulting benefit.

The judgment should be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.


text:
    EDWARD McSORLEY, Respondent, v. BRIAN G. HUGHES and JOSEPHINE S. HUGHES, his Wife, Appellants, Impleaded with GODFRIED GALLINECK.

      The admission of improper evidence in an equity case—not a ground for the reversal of fke judgment.

    Under the former practice in equity cases the examiner took all the evidence which was offered, and the chancellor decided upon the case so brought before him, and was supposed to disregard the improper and incompetent testimony,and the more recent practice of taking testimony in equity cases before the court has not so far changed the rule as to make the simple fact of the improper reception of evidence in such a case a ground for the reversal of the judgment on an appeal therefrom.

      Appeal by tbe defendants Brian G. Hughes and Josephine S. Hughes, his wife, upon questions of law and upon the facts, from a judgment of the Richmond County Court, entered in the office of the clerk of the county of Richmond on the 19th day of June, 1889, with notice of an intention on the part of the appellants to bring up for review, upon said appeal, the interlocutory judgment, entered in the above-entitled action in said clerk’s office on the 21st day of November, 1888.
    The action was brought for the purpose of compelling the specific performance of a contract made by the defendant Brian G. Hughes with the plaintiff Edward MeSorley, dated the 22d day of December, 1886, and for other relief, including an injunction against the defendant Godfried Gallineck, to prohibit him from paying rent to Brian G. Hughes, and for the appointment of a receiver of the rents and profits of the property occupied by said Gallineck, and the other property described in said contract.

      Says, Oreenbaum & Schram, for the appellants.

      Lyman L. Settel, for the respondent.
   Pratt, J.:

The testimony fully sustains the findings of fact. The transaction was clearly a loan of money. The papers executed must be regarded as security for a loan. At the expiration of the time of payment defendant, if he desired to cut off plaintiff’s right to redeem, should have filed a bill for that purpose. Not having done so, plaintiff’s tender was made in due time and should have been accepted and the property reeonveyed.

Some exceptions were taken to the admission of testimony, and it is urged that a new trial should be granted upon that ground. But that has never been the practice in equity. Under the ancient practice, testimony in equity was taken before an examiner, who took all that was offered, and the chancellor decided upon the case so brought before him. Under that system there could not well be any question as to the proper reception of testimony. The judge was supposed to know what testimony was proper and what should be disregarded, and the recent practice of taking testimony in equity cases before tbe court has not so changed the rule as to make the improper reception of evidence a ground of reversal. (Forrest v. Forrest, 25 N. Y., 510.)

The proofs abundantly sustain the judgment, which must be affirmed, with costs.

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

Final and interlocutory judgment affirmed, with costs.


text:
    MARY E. AKERLEY, Respondent, v. LEWIS B. WHITE, Appellant.

      Landlord and tenant — injury to the tenant from defeetim stairs — liability of the landlord.

    In an action brought by a tenant to recover the damages resulting from an injury received by him through the alleged defective condition of the stairs in the demised premises, the jury were charged that if the stairs at the time of the letting were weak, to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord.

      Held, that this charge would impose upon the owner of real property the duty of active vigilance to see whether the premises he was about to rent were in good condition, and was erroneous,
    That the law imposed upon the tenant the risk of such defects in the demised premises as were visible upon inspection.
    Appeal by tbe defendant Lewis B. White from a judgment of the Supreme Court, entered in the office of’ the clerk of the county of Dutchess on the 12th day of June, 1890, in favor of the plaintiff, with notice of an intention to bring up for review upon such appeal an order denying a motion for a new trial, made on the minutes of the court on the 12th day of June, 1890, and entered in said clerk’s office.
    The cause was tried before the court and a jury at the Dutchess County Circuit, and a verdict was rendered in favor of the plaintiff for the sum of $5,000 for damages for injuries sustained by the plaintiff in falling down a cellar stairs in a house owned by the defendant, and leased by him to the plaintiff’s father, the said stairs being claimed to have been out of repair.

      E. A. Brewster, for the appellant.

      H. A. Nelson, for the respondent.
   Pratt, J.:

The general rule of law is, in Robbins v. Jones (15 C. B. [N. S.], 221), said to be: “A landlord who lets a house in a dangerous condition is not liable to the tenant’s customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house, and the tenant’s remedy is upon his contract, if any.”

The same rule was held in Jaffe v. Harteau (56 N. Y., 398), and we think must be regarded as settled law.

An apparent exception has been engrafted upon the rule to the effect that where a landlord retains in his control a portion of the building, he owes a duty in respect to such portion to the people who, with his consent, come upon the premises. (Camp v. Wood, 76 N. Y., 92.) But we are not aware, of any rule, where a whole building is rented to a single tenant, which imposes upon a landlord the duty of active vigilance to make sure that it is in all respects safe.

Where the defects are apparent upon inspection, and the landlord does not resort to any device or subterfuge to prevent the tenant from learning the condition of the premises, the rule of caveat em/ptor would seem to do justice between the parties.

A different rule seems to have been applied at circuit. The jury were charged that, if the stairs at the time of letting were weak to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord. This would impose upon the owner of real property the duty of active vigilance to see that the premises he is about to rent, in this instance a dwelling, are in good condition. We think the law puts upon the tenant the risk of such defects as are visible upon inspection.

From these views, it follows that the judgment should be reversed and a new trial ordered, costs to abide the event.

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

Judgment and order denying 'new trial reversed and new trial granted, costs to abide event.


author: Cullen, J.:

text:
    HENRIETTA A. LOUGHEED, Appellant, v. THE DYKEMAN’S BAPTIST CHURCH AND SOCIETY, So-called, Respondent, Impleaded with JAY LOUGHEED and Others.

      When an estate, given “ at the death ” of the testator’s wife and conditional vjgon its continued use by the devisee, vests.

    By his will a testator provided: “ At the death of my wife I give and devise all that part of my real estate situate in the said town of Southeast * * * to . the Baptist Church and Society of Dykeman’s Station, to be used by said church and society as a parsonage forever; and whenever said society ceases to use the same as a parsonage, the same shall revert to my heirs-at-law.”

      Held, that the remainder did not vest in the church or society during the life of the wife.
    That as the devisee could not alien or dispose of the property, and could have no advantage of the devise until after the death of the wife, and there could be no right of property apart from the right of enjoyment, the devise was necessarily contingent upon the existence of the devisee at the termination of the estate of the wife, and was not intended to operate until that time, and that the church or society was entitled to take under the will in case it should then be incorporated.
    Appeal by tbe plaintiff Henrietta A. Longbeed from a judgment of the Supreme Court, entered in the office of the clerk of the county of Pntnam on the 3d day of July, 1890, dismissing the plaintiff’s complaint upon the merits.
    The action was tried before the court, which rendered a decision in favor of the defendant, the Dykeman’s Baptist Church and Society, dismissing the complaint upon the merits, with costs.
    The action was brought for the purpose of having a devise contained in the second paragraph of the will of Amos C. Dykeman, deceased, declared null and void, and for a partition and division of the devised premises. The second item of the will was as follows:
    “ Second. At the death of my wife I give and devise all that part of my real estate situate in the said town of Southeast which lies southerly of the new road leading westerly from Dykeman’s Station past the dwelling-house of Coles B. Eowler, to the Baptist Church and Society of Dykeman’s Station, to be used by said church and society as a parsonage forever; and whenever said society ceases to use the same as a parsonage, the same shall revert to my heirs-at-law. The real estate so intended as a parsonage includes my present dwelling-house and eighty acres of land, more or less.”

      Frederic 8. Bcvrnvm, for the appellant.

      Abram J. Miller, for the respondent.
   Cullen, J.:

We assume the law to be that if the remainder given to the defendant by the testator’s will vested at the death of the testator, then the devise is void, because at such time the defendant was not incorporated, and that the subsequent incorporation of the defendant during the life of the life-tenant would not validate the devise. The law was so held in Owens v. Missionary Society (14 N. Y., 380), and Marx v. McGlynn (88 id., 368), and the rule is recognized in Shipman v. Rollins (98 id., 311). The question then arises whether the devise vested at the death of the testator or at that of his wife, the life-tenant. The language of the will is: “At the death of my wife I give and devise,” etc. The natural reading of’ this language would postpone the devise till the death of the wife. But it must be conceded that the law so favors the immediate vesting of estates that ordinarily, under a long line of decisions, the word “ at ” would be construed to refer to the time of enjoyment of the estate, not of its vesting. We think that this case is taken out of the ordinary rule by the limitations imposed on the devise. By the will it is provided that the land devised shall be used as a parsonage by the society and church, and that when the society ceases to use it as a parsonage it shall revert to the testator’s heirs-at-law. The devisee could, therefore, not alien or dispose of it. The testator never contemplated that the devisee should have any advantage of the devise till the death of his wife. The right of property and right of enjoyment were to go together, and under the will there could be no right of property apart from the right of enjoyment. If the society had been incorporated at the time of the testator’s death and subsequently became extinct, the devise would have failed. It was thus necessary that the devisee should survive till the death of the life-tenant to receive the devise; and thus the devise was necessarily-contingent upon the existence of the devisee at the termination of the life estate. We think, therefore, that we are justified in holding that the devise was not intended to vest till the death of the wife, and if that construction be correct, the incorporation and existence of the defendant at that period will, under Shipman v. Rollins (supra), render it a competent devisee.

The judgment appealed from should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    IDA K. HELWIG, Respondent, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      Insurance — statement, in the application for a life policy, of the name of the last physician attending the applicant — when a party.maJang use of an affdamit is not estopped to deny its truthfulness.

    In an action brought to enforce payment of a life insurance policy, it appeared upon the trial that the application for the insurance contained a statement by the deceased that the last physician by .whom he was attended was Dr. Langeman, whereas, in fact, Dr. Falls had attended him at a later date.
    The court, on that ground, was asked to direct a verdict in favor of the defendant. This it declined to do, but instructed the jury that, if the attendance of Dr. Fahs was for a real or supposed disease, the verdict should be for the defendant.

      Held,, that the request was properly denied; that the limitation was a correct one, as tbe purpose of the question put to the applicant was to ascertain the name, not of the last physician who attended him, but of the last one who attended him for a disease.
    While, ordinarily, a party who makes use of an affidavit thereby represents it to be truthful, yet the verified statement of the attending physician accompanying the proofs of death under a policy of insurance, as it is required as a condition of the policy, cannot be regarded as legal evidence in favor of either party to an action upon the policy.
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the cleric of the county of Kings on the 9th day of April, 1890, in favor of the plaintiff, after a trial before the court and a jury at the Kings County Circuit, at which a verdict was rendered in favor of the plaintiff for .the sum of $5,675, and also from an order denying defendant’s motion to set aside the verdict and for a new • trial, which was entered in said clerk’s office on the 4th day of April, 1890.
    The action was commenced to recover the sum of $5,000 under a policy .of life insurance issued by the defendant on the life of Richard W. Helwig.

      Robert Sewell, for the appellant.

      A. Swiis, Jr., for the respondent.
   Pratt, J.:

We do not perceive any principle upon which the statement of the attending physician, accompanying the proofs of death, can be regarded as legal evidence in favor of either party to the action. Ordinarily, it may be said that a party who makes use of an affidavit thereby holds it forth as truthful, but we think the present case is an exception to the general rule, for it was a condition of the policy that the proofs of loss should be accompanied by the statement of the physician who attended the deceased in the last illness. The questions were upon a printed blank furnished by the company. It is not to be supposed that the .claimant could control the responses or was in any degree responsible for their' correctness. Had the forwarding of the physician’s affidavit been a matter of choice with the claimant, it might well be argued that the statement was put forward as truthful and was evidence against the party using it. But as the claimant had no option and was compelled by the contract to forward the statement, it cannot be used as evidence against her.

The application contained a statement by the deceased that the last physician by whom he was attended was Doctor Langeman. Evidence was given to the effect that Doctor Fahs attended him at a later date, and the court on that ground was asked to direct a verdict for defendant. That request was refused, but the jury was instructed that if the attendance was for a real or supposed disease, the verdict should be for defendant.

We think the limitation was a proper one. The subject brought to the attention of the applicant by the question was as to the physician last attending him for a disease. If a physician attended on the applicant to urge him to accept a nomination for an office, while within the literal terms of the question, it would not be within its real scope.

The evidence gave some ground to suppose that, at the instance of a third party, a physician called upon the deceased, who declined to take his medicines and care. We think the circuit judge correctly held that was not such an attendance as to violate the warranty.

The judgment must be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FREDERICK R. GILLMAN, Appellant.

      Bail bond, not naming the offense—not enforceable.

    A bail bond which does not indicate the offense with which the principal is charged, and for which the bail undertakes that he will appear and answer, is void; nor can such defect be supplied, by proof aliunde the bond, in an action not to reform, but to enforce, the undertaking of the surety after its alleged breach.
    Where the surety does not undertake that the principal will appear to answer any particular charge, there can be no breach of the bond.
    Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county, of. Dutchess on the 21st day of May, 1890, in favor of the plaintiff, after a trial before the court without a jury at the Dutchess County Special Term.
    The action was brought to recover upon a recognizance or undertaking of bail, signed by the defendant Frederick R. Gillman, together with Frank Cava, which was as follows: “ An order having been made on the 26th day of November, 1889, by Hon. Daniel W. Guernsey, Dutchess County Judge, that Frank Cava be held to answer upon a charge of........, upon- which he had been duly admitted to bail in the sum of $1,000, we, Frank Cava, defendant, of New Hamburg, Dutchess county, N. Y., and Frederick Gillman, of the City of Poughkeepsie, surety, hereby undertake that the above-named Frank Cava shall appear and answer the charge above mentioned, in whatever court it may be prosecuted,” etc.

      Herman Frank, for the appellant.

      Martin Heermomoe, district attorney, for the respondent.
   Pratt, J.:

We think the bail bond in question in this action is void as it does not specify any charge which the principal is to answer. The authorities are uniform upon this subject. Although it is not necessary to state the charge with great particularity, it must indicate the offense with which the principal is charged and for which the bail undertakes he will appear and answer. (People v. Rundle, 6 Hill, 506; People v. Blankman, 17 Wend., 252; People v. Graham, 1 Parker, 141.)

No charge having been stated in the bond we think it was error to allow the defect to be supplied by further proof. Such testimony may be given to explain contracts, but not to vary or add to them. This is not an action to reform but to enforce the undertaking of the surety after its alleged breach, and the court is simply called upon to determine what, if any, liability exists. As the surety did not undertake that his principal would appear to answer any charge there has been no breach.

The judgment must, therefore, be reversed.

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

Judgment reversed, with costs.


author: Pratt, «I.:

text:
    THOMAS WHEELER v. WILLIAM EMMELUTH, Respondent. OBED WHEELER, Administrator of the Goods, etc., of THOMAS WHEELER, Appellant.

      Insolvent debtor’s discharge—not vacated became the name of a creditor was misstated in the petition therefor.

    The fact that, in a list of creditors contained in the petition for an insolvent’s discharge, the name of Thomas Wheeler appeared, whereas properly the name of Obed Wheeler, as administrator of Thomas Wheeler, should have been entered, where there is no evidence that the petitioner was aware of the death of Thomas Wheeler, which had recently happened, does not oblige the court to set aside the order of discharge.

      It is not every omission or error in proceedings for the discharge of an insolvent which will render them void. If the proceedings are honestly prosecuted, the .inclination and duty of the court will he to disregard errors that will not cause injury.
    Appeal by Obed Wheeler, administrator of the goods, chattels and credits of Thomas Wheeler, deceased, from an order made at a Special Term of the Supreme Court, held in the county of Westchester on the 17th day of May, 1890, canceling two certain judgments in favor of Thomas Wheeler against William Emmeluth and discharging the same of record, and directing the clerk of Westchester county to mark on the docket of said judgments in his office that the same were canceled and discharged of record.
    The motion was made to discharge these judgments on the part of the defendant, William Emmeluth, pursuant to section 2182 of the Code of Civil Procedure, upon the ground that the defendant had been discharged from his debts as an insolvent debtor.

      Michael J. Scanlon, for Obed Wheeler, administrator, appellant.

      Jacob Levy, for the respondent.
   Pratt, «I.:

The principal defect urged against the insolvent’s discharge is that in the list of creditors appeared the name of Thomas Wheeler, whereas, properly the name of Obed Wheeler, as administrator of Thomas, should have been entered.

There is no reason shown to suppose that at the time of making the application the petitioner was aware of the death of his creditor, which was then recent. Not every omission or error will make insolvent proceedings void. If honestly prosecuted, the inclination and duty of the court will be to disregard errors that have not caused injury.

The brief of the appellant states that one of the judgments canceled by the Special Term order was entered in a Justice’s Court, and that being docketed in the county clerk’s office it became a judgment of the County Court, and that the motion for discharge should be addressed to that tribunal. But the petition avers the judgment was entered in the Supreme Court on February 24, 1876. The opposing affidavit does not deny that such a judgment was entered, and the order appealed from directs the cancellation of such judgment.

If it be that a judgment was entered on the 23d of February, 1876, in a Justice’s Court, it is not aimed at or affected by this proceeding. It may well be that to cancel that judgment resort should be had to the County Court.

The order appealed from should be affirmed, without costs.

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

Order affirmed, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN M. SAMMIS v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY.

      Supervisors — authority of, to appoint commissioners to lay out a highway.

    Since the passage of .chapter 773 of the Laws of 1873 a board of supervisors has no authority to appoint commissioners to lay out a highway, except upon the certificate of the commissioners of highways.
    Certiorari to review the proceedings of the board of supervisors of Queens county in the matter of the appointment, of three special commissioners to lay out a highway in the village of Oyster Bay, through premises of the relator on which are buildings and permanent structures occupied and used for the purposes of trade.

      Thomas Young, for the relator.

      Charles R. Street, for the supervisors.
   Pratt, J.:

It seems plain that prior to 1873 the proposed highway could not have been laid out over the relator’s property without his consent. That act only authorized such a laying out upon the certificate of the commissioners of highways. (Laws of 1873, chap. 773; Thompson on Highways [3d ed.], 220; 2 R. S. [Banks’ 7th ed.], 1238,1239.)

In this ease no such certificate was obtained, but was refused by the commissioners, and there was, therefore; no power vested in the board of supervisors to appoint commissioners, and the commissioners so appointed had no power to lay out the road.

This road falls under the act of 1873 and under the previous act, chapter 314 of the law of 1838, as amended by chapter 164 of the Laws of 1848. The law of 1873 was made expressly to apply to such an application as this, and it contains an express prohibition against laying out such road, except upon the condition before referred to, viz., certificate of commissioners of highways. "Whatever may have been the powers of the board of supervisors prior to 1873, it is plain that since that act either the owner’s consent or the certificate of the highway commissioners is essential to the laying out of such a road.

It cannot be claimed that the act of 1838 was intended to provide a method by which a road could be laid out through buildings without the owner’s consent; but it was the object of the act of 1873 to effect that purpose, but only upon the conditions therein expressed.

It may be further said that, irrespective of the act of 1873, we do not think a case was made for action upon the part of the board of supervisors, for the reason that it did not appear that the road was important, and that the commissioners of highways could not or would not act within the meaning of the act of 1838.

If the foregoing views are correct, it follows that the action of the board of supervisors was without authority and must be reversed.

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

Proceedings and order laying out highway reversed.


text:
    JANE E. MERRITT, Appellant, v. JOHN W. S. GOULEY, Respondent, Impleaded with Others.

      Foreclosure of a purchase-money mortgage—answer setting up a breach of a covenant of seizin in the deed given by the mortgagee.

    In an action for the foreclosure of a purchase-money mortgage, in which a judgment for deficiency is asked against the mortgagor, an answer setting up a counter-claim for damages arising by reason of a breach of a covenant of seizin contained in the deed of conveyance executed by the mortgagee to the mortgagor may be properly interposed.

      McConihe v. Fates (107 N. Y., 404); Kirtz v. Peck (118 id., 222) distinguished.

      Appeal by the plaintiff from an order of the Supreme Court, made at a Special Term thereof held in the county of Dutchess on the 12th day of August, 1890, and entered in the office of the clerk of the county of "Westchester on the 15th day of August, 1890, which denied a motion made by the plaintiff for judgment on the pleadings.
    The answer contained, among other things, the following allegation:
    The defendant further answering the complaint of the plaintiff herein, as a separate and distinct defense and by way of counterclaim to the claim of the above named plaintiff, respectfully shows:

      First. That the above named plaintiff and one George Merritt, her husband, on or about the 18th day of February, 1882, made, executed and delivered to him a full covenant warranty deed duly signed, sealed and acknowledged by said Jane E. and George Merritt, aforesaid, which said deed, in consideration of the sum of $10,000, purported to convey to him, the above named defendant, •the same premises and tract of land described in the mortgage set forth in the complaint herein, and by the same description therein contained, which said deed was thereafter on the 4th day of March, .1882, duly recorded in the office of the register of the county of Westchester, in Liber 1005 of Deeds, at page 296.

      Second. That upon receiving the aforesaid deed and relying upon the covenants therein contained, and the truth of the same, he, the above-named defendant, paid to the above-named plaintiff in cash the sum of $3,'750 (the sum required to make up $4,000), $250 having been heretofore paid the plaintiff in cash at the time of signing the contract for the sale and purchase of the premises described in the complaint herein, and in payment of the balances of the consideration expressed in the said deed, to wit, $6,000, he made, executed and delivered to the above-named plaintiff, the bond and mortgage set forth in the complaint herein, which were, as in the complaint herein set forth, given to secure a part of the purchase-money of the premises described therein, and then purported to be conveyed by the plaintiff herein to the above-named defendant as aforesaid.

      Third. That the said deed from Jane E. Merritt, the above-named plaintiff and her husband, to this defendant contained, among other things, a covenant of seizin and right to convey, of which the following is a copy: “And the said parties of the first part for themselves, their heirs, executors and administrators, do covenant, grant and agree to and with the said party of thé second part, his heirs and assigns that the said Jane E. Merritt, at the time of the sealing and delivery of these presents, is lawfully seized in her own right of a good, absolute and indefeasible estate of inheritance in fee simple of and in all and singular the above granted and described premises with the appurtenances, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in manner aforesaid.”

      Fourth. Defendant further states, on information and belief, that the said Jane E. Merritt at the time of the sealing and delivery of the deed aforesaid to him, and which deed contained the covenants last above fully set forth, was not lawfully seized in her own right of a good, absolute and indefeasible' estate of inheritance in fee simple in and to all and singular the premises and appurtenances described and mentioned in the said deed from her to the defendant above named, and which deed contained the aforesaid covenant, nor had she good right, full power and lawful authority to grant, bargain, sell and .convey all of said land and appurtenances to the above named defendant, nor were said statements to that effect contained in said deed true, for the reason as plaintiff is informed and believes, that at the time of signing, sealing and delivery of the deed aforesaid from plaintiff herein to the above-named defendant, and the making of the covenants therein contained, Charles E. Purdy and "Walter M. Purdy, who were then infants, both under fourteen years of age, were seized in their own right in fee simple, to an undivided half of the premises described in the complaint herein.

      Fifth. That the defendant above-named has paid to the plaintiff above named, relying on the covenants and the truth thereof, contained in the deed above referred to, and fully set forth, the sum of $900, as and for interest on the mortgage set forth in the complaint herein, and has also expended for improvements and taxes on the said premises the further sum of $856.87, making in all the sum of $1,756.87.

      Sixth. And the above-named defendant, further answering, states and alleges: That he is ready and willing and hereby offers to sign, seal and deliver to the plaintiff a proper conveyance (in which his wife will join) of the premises described in the complaint herein in order to place her in the same position in regard to said premises as she was prior to the purported conveyance thereof to him, and to account to and pay her for all rents received by him, on the above-named plaintiff surrendering to him and also canceling the bond and mortgage described in the complaint herein, and also paying to him the sum of $4,000, with interest from February, 1882, and the further sum of $1,756.87 paid by him for interest on said mortgage, taxes and improvements, with interest thereon, making in all the sum of $5,756.87, with interest as aforesaid.

      Demid Yerplanch, for the appellant.

      Michael II. Oardoso and Edgar J. Nathan, for the respondent.
   Pratt, J.:

This is a foreclosure suit of a purchase-money mortgage wherein a judgment of deficiency is prayed for, in case a sale fails to produce an amount sufficient to pay the mortgage, with interest and costs. ’

The answer, among other matters, puts in issue the amount claimed to be due, by setting up a counter-claim for damages by reason of a breach of the covenant of seizin in the deed. The plaintiff moved to strike out the answer as sham and irrelevant, and for judgment upon it as frivolous.

It is a sufficient answer to this motion that it would require argument to prove that it was frivolous. It is only in cases where the answer is so clearly bad as to require no argument or illustration that the same can be stricken out as frivolous. (Strong v. Sproul, 53 N. Y., 497.) Again, that part of the order was not appealable under section 537 of the Code of Civil Procedure.

The answer is not sham, for it is not proved to be false, and it is not irrelevant if it sets up any defense that can be proved upon the trial. The defendant had a right to contest the amount due, and it was a proper way to do that by setting up a counter-claim.

If the plaintiff, at the time the deed was delivered, had no title to or possession of the property, there was a breach of the covenant of seizin at the instant of such delivery, which'entitled the defendant to damages, and there is no reason in saying that he shall be driven to separate suit upon that covenant when proper relief can be obtained in this one suit. The plaintiff asked for a personal judgment against the defendant upon an’ action of contract, and the defendant’s claim arises out of contract and falls within the description of a counter-claim under the Code (§ 501). (Hunt v. Chapman 51 N. Y., 555; Bathgate v. Haskin, 59 id., 533; Seligman v. Dadley, 14 Hun, 186; Wiltsie on Foreclosure, § 376.) It is true that it has been held that a breach of the covenant of a deed without eviction cannot be pleaded in bar of a suit to foreclose a purchase-money mortgage.

In McConihe v. Fales (107 N. Y., 404) it is held that a failure of title is no defense to a foreclosure suit without an allegation of fraud in sale or an eviction. But in that case there was no breach of covenant set up as a counter-claim to reduce the amount due in equity upon the bond. The late case of Kirtz v. Peck (113 N. Y., 222) is to the same effect, but I find no case decided since the enactment of section 501 of Code of Civil Procedure which holds that a breach of the covenant of seizin cannot be set up as a counter-claim under such circumstances as exist here.

The order is affirmed, with costs.

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

Order affirmed, with costs and disbursements.


author: Pratt, J :

text:
    CATHERINE McLAUGHLIN, Respondent, v. WILLIAM W. ARMFIELD, Appellant.

      Mre escapes in a manufactory — duty of the owner to erect them, without notice from the commissioner.

    Under the statute (§ 16 of tit. 14 of chap. 583 of the Laws of 1888), directing that any building occupied, or built to be occupied, as a manufactory “ shall be provided with such fire-escapes and doors as shall be directed and approved by the commissioner,” the duty rests upon the owner to bring the subject before the commissioner and obtain his direction in the premises; and where an accident ~ occurs, because of the absence of such fire-escapes from the building, the owner cannot- avoid responsibility by alleging that, the statute does not declare absolutely that fire-escapes shall be erected by the owner, but only that “such fire escapes and doors as shall be directed and approved.by the commissioner ” shall be erected, or by alleging that he had no personal knowledge that the fire-escapes were not erected as required by law.

      Appeal by tbe defendant William W. Armfield from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of tbe county of Kings on tbe 6th day of March, 1890, and also from an order, entered in said clerk’s office on tbe 15th day of Mareb, 1890, denying tbe motion of tbe defendant to set aside tbe verdict and for a new trial.
    Tbe action was brought to trial before tbe court and a jury at tbe Kings County Circuit on tbe 5th day of March, 1890, and a verdict was rendered in favor of tbe plaintiff for tbe sum of $2,000.
    Tbe action was brought against tbe owner of a building in tbe city of Brooklyn, which was four stories in height and was built to be occupied as a factory, and was, in fact, occupied as a factory, in which tbe plaintiff was employed, and which, it was alleged, tbe defendant, tbe owner, bad wholly neglected to provide with any fire-escapes, or to have any ladder or stairway built to the scuttle or place of egress in tbe roof.
    Tbe complaint alleged that fire broke out in tbe building; that the plaintiff’s means of escape down tbe stairs of tbe building were cut off by smoke and fire, and she was compelled to jump from one of tbe rear windows to tbe roof of a small wooden structure in tbe rear of the manufacturing building, a distance of about thirty feet, and was severely and permanently injured, and demanded damages to tbe amount of $25,000.

      John H. V. Arnold, for tbe appellant.

      Andrew I. Ga/rdiner and Frederic A. Wan'd, for tbe respondent.
   Pratt, J :

Tbe appellant, for five years before tbe accident, bad owned and collected rent from tbe defective buildings. If, under those circumstances, be can avoid responsibility by alleging be bad no personal knowledge that tbe fire-escapes were not erected as required by law, tbe statute would be a snare and not a safeguard.

The appellant argues that, as tbe statute does not in express terms declare that fire-escapes shall be erected by tbe owner, the duty cannot be placed upon him by a judicial construction of tbe law.

Tbe law enacts that any building occupied, or built to be occupied, as a manufactory shall be provided with such fire-escapes as shall be directed by the commissioner. We think the initial.duty rests upon the owner, that he should bring the subject before the commissioner and seek his direction.

The statute is intended to protect human life; its intentions are easily discovered, and no reason is perceived why the court should strain after so strict a construction of its language as to deprive it of all useful operation.

The appellant argues that, had plaintiff not given way to fright, and exercised a sound discretion as to the method of escape adopted, she might have found a safe egress by another window.

All those considerations were properly submitted to the jury. Their finding was adverse to defendant, and was sustained by the testimony.

It follows that the judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.: Barnard, P. J.

text:
    In the Matter of the Appraisement of Certain Legacies, and the Assessments of Collateral Inheritance Taxes Thereon, Under the Last Will and Testament, and the Codicil Thereto, of JOHN GUY VASSAR, Deceased.

      Collateral inheritance tax—exemption therefrom — the legatee must be absolutely and, unqualifiedly exempt from general taxation.

    Yassar College was authorized, by chapter 2 of the Laws of 1861, to take, by gift or devise, real "and personal estate, the annual income of which should not exceed $40,000, and, by chapter 39 of the Laws of 1862, the real and personal estate held by the college, to the extent that it was authorized to take the same by the act of 1861, was exempt from taxation.
    Under the will of John Guy Vassar a bequest was given to the college.

      Held, that such bequest was subject to the collateral inheritance tax provided for by chapter 483 of the Laws of 1885, as amended by ctiapter 713 of the Laws of 1887. (Barnard, P. J., dissenting.)
    That, in order to exempt a legatee from the collateral inheritance tax, under the last-mentioned statute, there must be an entire freedom from general taxation.

      That as Yassar College, under chapter 89 of the Laws of 1862, was only exempt from general taxation upon the property which it was authorized to take and. hold under the law of 1861, that it did not come within the provision of the collateral inheritance tax laws relating to the exemption of certain legatees from the operation of those laws.
    Appeal by Yassar College from an order or déeision made by tbe surrogate of Dutchess county on the 1st day of July, 1890, purporting to affirm the order of said surrogate, made May 13, 1890, which order of May 13, 1890, held and decided that the said college’ was liable to a collateral inheritance tax of five per cent on the legacy given to it under the will of John Guy Yassar, deceased.
    Also an appeal by Yassar Brothers’ Hospital from the aforesaid orders of July 1, 1890, and May 13, 1890, assessing a tax upon the legacies bequeathed to Yassar Brothers’ Hospital.'
    Also an appeal by Yassar Brothers’ Home for Aged Men, in the city of Poughkeepsie, from the said orders of July 1, 1890, and May 13, 1890, assessing a tax upon the legacies bequeathed to Yassar Brothers’ Home for Aged Men in the city of Poughkeepsie.

      Frank Basbrouck, for the executors of John Guy Yassar, deceased.

      Cyrus Swan and Robert E. Taylor, for Yassar College, appellant.

      Alliso7i Butts, for Yassar Brothers’ Hospital, appellant.

      John P. B. Tollman, for Yassar Brothers’ Home for Aged Men, appellant.

      Charles F. Tabor, attorney-general, for the People, respondent.

      Wilkinson dc Cossum, for the county treasurer of Dutchess county, respondent.
   Dykman, J.:

This is an appeal from a portion of the order of the surrogate of Dutchess county assessing a tax upon the legacies bequeathed tO’ Yassar College, Yassar Brothers’ Hospital and the Yassar Brothers’ Home for Aged Men by the last will and testament of John Guy Yassar, deceased.

The legacy, under the same will, to the John Guy Yassar Orphan Asylum was exempted from taxation by the surrogate, and there is no appeal from that portion of the order.

All property which now passes by will, or by the intestate laws •of this State, from any person who died seized or possessed of the same while a resident of this State, to any person or persons, or to any body politic or corporate other than to or for the use of the societies, corporations and institutions now exempted by law from taxation, is subject to a tax of five dollars on every hundred dollars of the value of such property. Such are the provisions of section 1 •of chapter Y13 of the Laws of 188Y, amending chapter -483 of the Laws of 1885.

The statute under consideration is new, but, so far as it has received judicial construction, the tendency has been to hold that the societies, corporations and institutions, exempted from the operation of the act to tax gifts, legacies and collateral inheritances, are those bodies only which enjoy complete immunity from taxation as to all their property.

There must be an entire freedom from general taxation to entitle such institutions to exemption from taxation under this statute, and as none of the appellants are entirely exempt it follows that they are not within the exception to the general operation of the act. Partial relief from taxation is insufficient.

Our conclusion is, that the legacies are subject to the operation of the statute, and the order appealed from should be affirmed, with costs, to be paid from the estate, to the respondent.

Pratt, J., concurred.

Barnard, P. J.

(dissenting):

Yassar College by its charter was authorized to take real and personal estate by gift or devise, the annual income of which should not exceed $40,000. (Laws of 1861, chap. 2.) By chapter 39 Laws of 1862, the real and personal estate to the extent it is authorized to hold the same was exempted from taxation. This is not a limited exemption. The college can take the bequest and be within the limit it is authorized to take, and then the exemption is general as to this bequest. The record shows that as to these proceedings the college can take the bequest and still have only an income under $40,000 annually. As to the hospital the evidence shows that to be exempt from the collateral tax. It has a lot and buildings where the sick are cared for. The land so occupied and all its personal property is exempted from taxation by chapter 298, Laws of 1882. The gift under this will is wholly of personal property. The exemption as to personal property is absolute, and it is not the less absolute in respect thereto because it might hold land subject to taxation because it was not used for the purpose of a hospital.

The “ Home for Aged Men ” is also exempt. It is an alms-house. The mere fact that it charges a sum to a portion of those who feed at its table and enjoy the shelter of its roof does not destroy its character as a pure public charity. (Northampton Company v. Lafayette College, 46 Leg. Intel., 423; City of Philadelphia v. Pennsylvania Hospital, 47 Leg. Intel., Feb. 14, 1890, page 70; Temple Grove Seminary v. Cramer, 98 N. Y., 121.)

All of its property is used in the lines of the charitable purpose of its incorporation, and the ultimate test of its character must be the result of its work as a whole. (People ex rel. Female Academy, etc. v. Commissioners of Taxes, 64 N. Y., 656; People ex rel. Seminary, etc., v. Assessors, 42 Hun, 27; Betts v. Betts, 4 Abb. N. C., 317.)

The order should, therefore, be reversed, with costs.

Decree of surrogate affirmed, with costs out of estate.


author: Barnard, P. J.:

text:
    CHARLES WHITE, an Infant, etc., by FRANK WHITE, his Guardian ad Litem, Appellant, v. WITTEMAN LITHOGRAPHIC COMPANY, Respondent.

      Bmployment of a toy under thirteen years of age—not alone and of itself evidence of negligence.

    Evidence simply of the employment of a hoy under thirteen years of age, in violation of the statute, does not, alone and of itself, establish negligence upon the part of his employer. The violation of the statute is evidence only upon the question of negligence, but to establish it other evidence of negligence and freedom from contributory negligence must be given.

      Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 2d day of November, 1889; and also from an order denying plaintiff’s motion for a new trial upon the minutes, entered in said office on the 30th day of November, 1889.
    The action was tried at the Kings County Circuit before the court and a jury, at which a verdict was rendered in favor of the defendant. The action was brought to recover damages for injuries sustained by the infant plaintiff while in the employment of the defendant, a corporation engaged in the business of lithographing, printing and bronzing.

      James O. GJwreh, for the appellant.

      L. G. Raegenor, for the respondent.
   Barnard, P. J.:

The complaint alleges that the defendant employed the plaintiff, who wras at the time under thirteen years of age, and that he was placed at work on a dangerous machine without sufficient instructions as to its management. That by reason of the plaintiff’s ignorance of the machine he was injured. The proof as to the age of the boy is conflicting. He said when he was employed that he was fourteen years old. The defendant’s agent asked the boy for his father and mother upon this question of age. The plaintiff gave excuses why they could not come, and the defendant hired the boy upon his own assurance as to his age. The case went to the jury upon the question whether or not the plaintiff was sufficiently instructed as to the management of the machine and as to its dangerous character if not properly attended to. The jury found for the defendant. There was no negligence, therefore, proven, except that involved in the employment of the boy, who was under the age of thirteen years, contrary to statute. The question was not distinctly raised at the trial. The judge instructed the jury that a boy under fourteen years of age, there being a statute against employments under thirteen, could not avail himself of the fact against the defendant “ where the boy had sought the employment.”

The judge refused to charge that it was immaterial whether the factory act was violated or not. An employment of a boy under thirteen did not, of itself, give a right of action for an injury sustained in the service. The boy was competent. Was fully instructed and may have been careless, for this follows the verdict. The only possible question, therefore, is whether negligence is made out by the mere hiring of a child under the statute age ? The general purport that the employment of a minor upon dangerous machinery, is not, of itself, proof of negligence, is abundantly decided. ’ (De Graff v. N. Y C. and H. R. R. R. Co., 76 N. Y., 125; Hickey v. Taaffe, 99 id., 204, and cases cited.) The principle of the decision is that the minor takes the risk of the employment like an adult, only qualified by the fact that his judgment and care in the business shall he such only as are called for by a minor. (Stone v. Dry Dock, etc., R. R. co., 115 N. Y., 104.)

There have also been decisions that when an employment has been entered into with a minor, that proof of negligence on the part of the master, and freedom from negligence on the part of the minor, shall he proven to entitle a plaintiff to judgment. A violation of a statute has been held to be insufficient of itself to establish negligence. The case of Brown v. Buffalo and S. L. Railroad (22 N. Y., 191) held that proof of an ordinance regulating speed was inadmissible as evidence upon the question of negligence of the company in maintaining a greater rate of speed than was permitted by the ordinance. (McGrath v. N. Y. C. and H. R. R. R. Co., 63 N. Y., 522; Massoth v. Delaware and Hudson Canal Co., 64 id., 524.)

The case under consideration is not like Willy v. Mulledy (78 N. Y., 310). There a breach of duty, causing damage, was held to be actionable. The breach of duty in this ease did not occasion the injury of itself. The violation of the statute was evidence only upon the question, but other negligence and freedom from contributory negligence must he proven.

The question is not free from doubt. The statute was designed to protect children from dangers before the maturity of judgment assumed from a certain age was acquired. The decision, however, held that a minor assumes the risk of the employment. The statute does not say that a mere employment of a child under thirteen and an accident afterwards, shall support an action. The question whether a violation of law as to rate of speed is proof of negligence, when the accident is caused by the rate of speed, is' somewhat unsettled, but the weight of authority is that the ordinance is only evidence upon the subject.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Barnard,* P. J.:

text:
    THOMAS TAYLOR, Respondent, v. THE VILLAGE OF MOUNT VERNON, Appellant.

      Municipal corporation — liability of, for an injury to one falling into an excavation near the sidewalk.

    In an action brought against a municipal corporation to recover damages arising from an injury to the plaintiff, alleged to have resulted from the negligence of the defendant, it appeared that the plaintiff stepped from a sidewalk in a village street into an excavation and was injured; that the excavation was four feet inside of the stoop line of the house on the street, and did not encroach on the sidewalk, and that the sidewalk had a flag-walk, the inside of which was eight feet from the excavation.
    No notice of this condition of things, to the village or its officers, was proved, except to a police officer on the day preceding the accident, and he at once noti. fled the owner to guard the excavation.

      Held, that the facts in this case did not establish any negligence on the part of the municipal corporation, or justified a recovery against it.
    Appeal by tbe defendant, the Village of Mount Vernon, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of March, 1890.
    The action was tried before a referee, who filed his report, upon which judgment was entered adjudging that the plaintiff, Thomas Taylor, recover of the defendant, the Village of Mount Vernon, the sum of $2,593, together with costs.
    The action was brought to recover damages alleged to have resulted to the plaintiff by reason of his having fallen into an excavation near a sidewalk in the defendant’s village.

      Joseph 8. Wood, for the appellant.

      Eugene Archer, for the respondent.
   Barnard,* P. J.:

An owner of lands in the village of Mount Vernon had excavated a cellar thereon flush with the street. There were no lights and no guard-rail placed at the excavation to indicate the danger of leaving the sidewalk. The lots were naturally on the grade of the sidewalk. The plaintiff on the 15th of October, 1887, stepped from the sidewalk into the excavation and was injured. The excavation was four feet inside of the stoop line of the house on the street. The sidewalk had a flag-walk, the inside of which was eight feet from the excavation. The excavation did not encroach on the sidewalk and had not caved in so as to diminish the sidewalk. The plaintiff intentionally left the sidewalk for his own purpose and thus stepped into the excavation. The sidewalk itself was not out of repair. Under this state of facts the village owed no duty in respect to the excavation. It had been recently made as a cellar for a new building. It was entirely off the street. No notice is proven to any of the city officers. The only notice shown was to a police officer on the day preceding the accident, and he at once notified the owner to guard his excavation; whether he was liable for neglect, under the case of Beck v. Carter (68 N. Y., 283), is doubtful. The facts of that case show an invitation to use the place excavated as a highway by the owner and the case seems to have been decided on that ground against the owner. The place excavated was not an exposed place under Hubbell v. The City of Yonkers (104 N. Y., 434).

It is immaterial whether the excavation was made below the sidewalk and entirely on the owner’s land or whether the danger be caused by the building of the road by a steep embankment. Where commissioners failed to erect a fence along a bank sufficient to prevent persons using the highway from walking down the declivity, the Court of Appeals say, we are of the opinion that the town owed no duty to the traveling public to erect such fence and that it was not negligence on its part, or that of its highway commissioners, to omit to do so.” (Monk v. Town of New Utrecht, 104 N. Y., 552.)

This case is not like Jewhurst v. City of Syracuse (108 N. Y., 303), where there was no visible boundary of the street and the accident happened upon a part of an owner’s land used as a street. The plaintiff did not in this case suppose he was using the street, ,but was departing from it. In Ivory v. The Town of Deerpark (116 N. Y., 476), the highway had been cnt away by a railroad and the exposed place was not guarded. The cut was at the end of a sharp curve, so that if the traveler continued in the course of the highway he must be precipitated down the bank. The facts found in the present case fail to show any negligence upon the part of the defendant.

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

Dykman, J., concurred.

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


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE SOCIETY OF THE NEW YORK HOSPITAL, Appellant v. ELIJAH PURDY and Others, ASSESSORS OF THE TOWN OF WHITE PLAINS, Respondents.

      Exemption from taxation—the New Torh Hospital.

    The New York Hospital was exempted, by chapter 466 of the Laws of 1875, from . taxation upon its real and personal property in the city of New York, if no income was derived from it, and if the same was used exclusively for the purposes for which the hospital was created. This exemption was extended, under the provisions of chapter 462 of the Laws of 1889; to property of the hospital .• “wherever situated.” The hospital had a farm in Westchester county, the . products of which were used for the purposes of the hospital, except some insignificant quantities thereof, which were sold and the proceeds applied to the support of the inmates.

      Held, that I he farm was exempt from taxation, and that the sale of the few insignificant products thereof was not to be deemed a source of income.
    That the hospital did not lose its light to exemption because it charged certain of the inmates who were able to pay.
    Appeal by the Society of the New York Hospital from an order dismissing a writ of certiorari, entered in the office of the clerk of the county of Westchester on the 13th day of August, 1890.
    The writ of certiorari was issued to the Board of Assessors of the Town of White Plains to review their action and proceedings in the assessment of certain real estate of the relator in the town and village of White Plains upon the assessment-rolls for the year 1889.

      Martin J. Keogh, for the appellant.

      L, W. db W. P. Platt, for the respondents.
   Barnard, P. J.:

By chapter 466, Laws of 1875, the real and personal property of the relator in the city and county of New York was made exempt from taxation if no income was derived from it, and if the same was used exclusively for the purpose for which the relator was chartered.

By chapter 462, Laws of 1889, this exemption was extended to property “ wherever situated,” but under the same terms and con ditions. The hospital, has a farm of land in Westchester county exclusively used for the charter purposes of the society. The farm is not self-supporting, and food is sent from New York for the use of the patients beyond the products of the farm, and the farm supplies the New York Hospital with vegetables. There are occasionally sales made of certain insignificant articles of produce, such as cabbage, pigs and male calves, the proceeds from which have been applied to the support of the inmates of the hospital buildings on the farm. The sole question is whether this is income within the meaning of the statute. The exemption as to money corporations, depending on “ profits or income,” was held not to apply where there were receipts, although the receipts were less than the expenses. (People v. Supervisors of Niagara County, 4 Hill, 20.) The words “ profit or income ” are said by the court to be frequently used synonymously, but “net income profits” and “ clear income ” are also used in the statute. The court decided the case, however, on what was deemed a legislative intent in the use of the words “profit or income.” A later section of the act was deemed to exclude “ net profit ” or “ clear income ” as inapplicable to the case. The case of the People ex rel. Commercial Insurance Company v. Supervisor of New York (18 Wend., 605) held that, as to moneyed and manufacturing corporations deriving an income on their .capital, the exemption classed under the words “ profits or incomes ” included any incomes, though less than the expenses. The present case is very different. The hospital is not a stock company, but a charitable one. The buildings in the city of New York are exempted by law from taxation, and by this amendment the exemption is extended to lands elsewhere. The farm is used solely for the purposes of the charity. The cost of raising the produce exceeds the value of the product, and it i» almost entirely used in the institution of the hospital. The case is very analogous to Betts v. Betts (4 Abb. N. C., 317), where it was held that the sale of a few simple articles manufactured by the blind inmates of an institution for the blind was not to be deemed a source of income. The evidence in this case shows that all the proceeds of the farm go to the support of the relator’s patients, and this result determines the character of the income, received from the farm, as a whole, and not from a few sales of property which could not be advantageously used by relator. If the hospital had permitted this property to be wasted, no exemption would be waived or forfeited. (Temple Grove Seminary v. Cramer, 98 N. Y., 121.)

The hospital does not waive its exemption because it charges some people who are able to pay. Whether this fact makes the hospital other than a public charity, and thus subjects its buildings in New York, and the farm as well, to taxation, is fully discussed and decided in City of Philadelphia v. Pennsylvania Hospital (47 Legal Intel., 70, Feb. 14, 1890). The case shows that all its income fróm property and donations is used for the purpose of the charity, and the money received from pay patients is wholly applied to the support and attendance on those who cannot pay. The hospital is at present quite heavily in debt and has to meet the wants of many thousands of applicants every year. There is a large excess of disbursements over receipts for board of patients in 1888, amounting to $128,994.50.

The order should, therefore, be reversed, and judgment given that the farm is exempt from taxation, with ten dollars costs and disbursements on appeal..

Dteman, J., concurred.

Judgment reversed and order made that the Westchester farm is exempt from taxation, with ten dollars costs and disbursements of appeal.


text:
    ALTHA M. WELLS, as Administrator, etc., of JAMES WELLS, Deceased, Appellant, v. THE BROOKLYN CITY RAILROAD COMPANY, Respondent.

      Horse railroad—injury to one crossing its tracks—contributory negligence.

    A man sixty-one years of age started to cross a street after looking both ways, and while a horse car was fifty feet away. He crossed the first and second tracks of the horse railroad company, and got partly across the third track when he was struck by the horses attached to the car, was thrown under the wheels of the car and was fatally injured. The car was going faster than usual, and although the man was in full view of the driver its speed was not slackened.

      Held, that the question of contributory negligence on the part of the deceased should have been submitted to the jury.
    Appeal by the plaintiff from a judgment of the Supreme Court, ■entered in the office of the clerk of the county of Kings on the 11th day of January, 1890, in favor of the defendant, dismissing the plaintiff’s complaint after a trial before the court and a jury at the Kings County Circuit.
    The action was brought to recover damages resulting from the ■death of the plaintiff’s husband, who was run into by one of the defendant’s horse cars, was knocked down and received injuries which resulted in his death.

      Payne, McGuire c§ Low, for the appellant..

      Morris & Whitehouse, for the respondent.
   Barnard, P. J.:

There was sufficient evidence produced upon the part of the plaintiff to go to the jury. The accident happened on the 27th of November, 1888, between six and seven o’clock in the evening. The plaintiff was sixty-one years of age and attempted to pass over Flushing avenue in front of the defendant’s street car and was killed. When he started from the corner of Throop and Flushing avenues, and when he started to cross, he was observed to look both ways and .start after this observation. The car was then fifty feet away. The deceased got across the first and second track and partly across the third track when he was struck by the car horses and thrown under -the wheels of the car and fatally injured, although the car did not pass over him. The negligence of the defendant consists in this: The car was going faster than usual and did not slack up its speed until the man was struck, although in full view of the driver of the car. The witness Schnidler thought he would have time to cross safely with the high rate of speed which continued until the accident, when the driver put on brakes to stop the car. The driver did' not see the deceased.until he got within twelve feet of him and the hoi’ses were within six feet of him. It was then too late to save the man who was crossing, as it takes eight feet to stop the car. The deceased was a little deaf. The driver was bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street. (Moebus v. Herrmann, 108 N. Y., 349.) It does not appear that he did so, if he could see fifty feet ahead of him, and did see a man crossing the street, and kept up a rapid rate of speed until the horses were within six feet of the person crossing, and when the accident could not be prevented. The contributory negligence of the deceased was a question for the jury. It was not negligence on his part to attempt to pass in front of a car fifty feet away, as matter of law. The neglect of the defendant being found, it will go far towards acquitting the deceased of neglect. He probably assumed that the rate of speed was less than it was, or that the driver would slightly slacken the speed. (McClain v. Brooklyn City R. R. Co., 116 N. Y., 459.)

The order dismissing the complaint and the judgment thereon should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurred.

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