Volume 166 — New York Reports

writ of mandamus commanding the comptroller to deliver to him a warrant on the chamberlain of the city of New York for the payment of $2,863, the amount earned by the relator under a contract with the city for regulating and grading One Hundred and Thirty-fifth street from Amsterdam avenue to the Boulevard, and granting relator’s motion for the writ.

Beference is made to the two cases in this court (Matter of Grade Crossing Commissioners, 154 N. Y. 550, 561) and to the cases of the same title in the Appellate Division (6 App. Div. 327; 17 id. 54), for a citation of the acts authorizing the grade crossing improvements in the city of Buffalo, and an account of the manner in which they have been carried out, and to 46 App. Div. 473, for a fuller statement of the.facts of this case.

The nature of the action and the facts, so far as material, are stated in the opinion. The county of Broome having become obligated to pay to the towns of Union and Vestal a certain proportion of the expenses for the construction of this bridge, such obligation could not.be abrogated by the amendment of section 130 of the Highway Law, by striking from the section that portion providing that the county should pay a share of such expense.

<p>1. Appeal — Review of Sufficiency of Evidence. The unanimous affirmance by the Appellate Division of a judgment involving a decision that the evidence would not permit a finding that the plaintiff had occupied adversely the property in dispute for such a length of time as would ripen into title precludes the Court of Appeals from looking into the record to inquire whether or not such was the fact, and a finding that the property is located upon a certain river is also conclusively established by such affirmance.</p> <p>3. Deed—Reservation—Public Street. An exception in a deed of land executed by the city of New York reserving from the premises granted so much thereof as may form any part of any street now or hereafter assigned, designated or laid out through such premises according to law for public use includes land assigned and designated as a street, although not laid out according to law or legally existing as a street at the time of the execution of the grant.</p> <p>3. Real Property — Action to Determine Claim—Easements. An action to compel the determination of a claim to real property is not maintainable for the purpose of obtaining an adjudication that the plaintiff has easements therein, but the complaint is properly dismissed upon the plaintiff’s failure to prove such facts as would entitle it to relief under the statute.</p> <p>4. Evidence — Admissibility op Statements Explanatory op Map. Remarks or statements, explanatory of a map made by a commissioner of streets and roads in pursuance of a statute authorizing the making of the map, are not admissible in evidence where they have no bearing one way or the other upon the location of the premises in controversy.</p> <p>o. Payment op Taxes — Adverse Possession. In an action against a municipal corporation to compel the determination of a claim to real property, evidence that the city had levied taxes and assessments on the premises in controversy is inadmissible upon the question of adverse possession.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The chattel mortgage did not cover the liquor tax certificate. A liquor tax certificate is not a license, and, therefore, not a .renewal of a license.

The facts, so far as material, are stated in the opinion. The relators showed a clear legal right to the relief prayed for. (People ex rel. v. Wilson, 119 N. Y. 515; Mygatt v. Washburn, 15 N. Y. 316; Nat. Bank v. City of Elmira, 53 N. Y. 49.) Mandamus was the proper and the only adequate remedy. (People ex rel. v. Feitner, 30 Misc. Rep. 641; People ex rel. v. Feitner, 41 App. Div. 544; People ex rel. v. Feitner, 43 App. Div. 199; High on Extra. Leg.

.entered upon a dismissal o>f the complaint by the court at a Trial Term, and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court to charge that a tenant in an office building has the right in using an elevator to rely upon its being in perfect condition. (Stierle v. Union Ry. Co., 156 N. Y. 74; S. & R. on Reg. § 50; Tousey v. Roberts, 114 N. Y. 312; Mitchell v. Marker, 62 Fed.

<p>1. Evidence—• Negligence—Omission op Duty as to Repair op Bridge. In an action to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the defendant railroad company’s negligent failure to repair a bridge which gave way while the intestate was crossing it, evidence of the defendant’s bridge repairer as to how often it was customary to renew the hemlock stringers of bridges is admissible to show an omission of duty on the part of the defendant.</p> <p>2. Knowledge op Witness as to Durability of Timber. A witness who has been for years engaged in the erection and maintenance_of bridges or other similar structures, and by experience has ascertained as a fact the life of a particular wood grown in the locality, may properly he permitted to testify to the knowledge thus acquired.</p> <p>3. Evidence op Repairs after Accident. Evidence that after the giving way of a bridge, by reason of which the plaintiff’s intestate was killed, the defendant replaced the two broken sleepers by four or five new ones is admissible to contradict testimony that the strength of the bridge was the same after the accident as before it.</p> <p>4. Bridges—• Railroad — Exemption prom Liability. The provision of section 154 of the Highway Law (L. 1890, ch. 568), exempting a town from damages resulting from the breaking of any bridge by a load weighing more than four tons, does not apply to bridges constructed by a railroad company to restore an appropriated highway to its former state as required by section 11 of the Railroad Law (L. 1890, ch. 565), but only to bridges of a town maintained at public expense.</p> <p>5. Railroad Law, Section 11 not Repealed by Highway Law. Section 11 of the Railroad Law, imposing upon a railroad company the duty of restoring a highway appropriated for its track, was not repealed expressly or impliedly by the Highway Law.</p> <p>6. Exemption prom Liability for, Injury from Defective Bridge —Public Policy. The exemption from liability for damage resulting to person or property by reason of the breaking of a bridge where the load transported weighs four tons or more, conferred upon towns by the Highway Law, does not indicate a public policy limiting the liability for injuries occurring upon the bridges of the state, including those erected and maintained by railroads as a compensation to the public for the portions of highways they have destroyed.</p> <p>7. Stringers aPaiit of Railroad Bridge — Railroad Must Repair — When Contributory Negligence a Question of Fact. The evidence examined and held, that the trial court was justified in holding that the stringers constituted a part of the framework of the bridge, and as such were within the requirement of the Railroad Law, as amended by section 64 of chapter 754 of the Laws of 1897, that when a highway crosses a railroad by an overhead bridge the framework of the bridge shall be maintained and kept in repair by the railroad company; also held, that the question of contributory negligence was for the jury.</p> <p>8. Negligence in Failing to Repair. It seems, that a railroad company which has' placed stringers in an overhead bridge constructed by it and permitted them to remain after they became rotten in the center, thus constituting a secret danger to all who pass over the structure, cannot be allowed to assert as a defense to its negligence that the legislature subsequently imposed upon the town the duty to maintain the roadway.</p>

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. The facts, so far as material, are stated in the opinion. The evidence does not show that the defendant failed to provide plaintiffs’ intestate with a safe place in which and adequate appliances with which to perform his duties.. (Kern v. D. & D. S. R. Co., 125 N. Y. 50; Harley v. B. C. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint does not set forth a cause of action, and error was committed in denying defendant’s motion to dismiss it upon that ground. (Nat. M. B. Assn. v. Colliding, 90 N. Y. 116; Ward v. Stahl, 81 N. Y. 406; People v. Pennock, 60 N. Y. 421; Page v. Krekey, 137 N. Y. 307; Magee v. M. L. Ins.

<p>1. Negligence — Whether Bell Was Rung or Not, when a Question op Fact. Where, upon the trial of an action for damages resulting-from the death of the plaintiff’s intestate, a witness shown to have been in a position to hear, testifies that he observed the locomotive which ran over the deceased, but did not hear the bell ring, that he is positive it was not rung, and the defendant’s engineer, w.ho was called by the plaintiff, testifies that it was ringing when the accident happened, but did not state how long it had been ringing, the question whether the bell was rung or not is for the jury.</p> <p>2. Failure or Railroad Company to Operate its Cars with Care. A railroad company which runs a locomotive rapidly in the night time upon a public street in a populous city, crossing other streets at grade with no gate or flagman to protect the public and without taking any precaution to warn travelers by bell, whistle or otherwise, except by means 'of its headlight, may properly be found guilty of neglecting its duty to operate its cars with the care and caution required by the circumstances.</p> <p>3. Contributory Negligence, when a Question op Fact. Where it appears that the deceased looked in both directions when he started to cross the street and when he was half way to the nearest rail he looked in both directions again, there is some evidence of care on his part, and the question of contributory negligence is for the jury.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, made January 11, 1899, which reversed a judgment of the Court of Claims dismissing the plaintiff’s claim and granted a new trial. This was a claim for damages for an appropriation of lands and for injuries to a railroad embankment caused by the building of a state dam across the Black river which set back a large volume of water against claimant’s railroad.

This action was brought to recover damages for the death of the plaintiff’s intestate, alleged to have been caused through the negligence of the defendant. The appeal does not lie to this court. (Williams v. D., L. & W. R. R. Co., 127 N. Y. 643; Mickee v. W. M. & R. M. Co., 144 N. Y. 613.)

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court was correct in holding that the acts of the brakeman were not within the scope of his employment, and that the defendant was not liable therefor.

The nature of the action and the facts, so far as material, are stated in the opinion To recover in an action for false imprisonment the plaintiff must show; an illegal detention of his person. (Burns v. Erben, 40 N. Y. 463; Addison on Torts [7th ed.], 146.) The affirmance of the judgment and order denying the motion for a new trial was by a divided Appellate Division; therefore, the record is open for examination hy this court.

<p>Will — Insufficient Publication. The Statute of Wills makes no exception with respect to a holographic will, in its requirements as to execution, and some substantial compliance with the formalities prescribed for its proper publication is necessary; and where an instrument, signed and attested, is offered for probate as a will, and it appears that it is in the handwriting of the testatrix, but that she did not sign it in the presence of either of the attesting witnesses, nor acknowledge to either of them that it had been subscribed by her, nor at any time declare in the presence of either of them that the instrument was her will, nor in any way communicate to them that it was her will or an attempted testamentary disposition of her property, probate is properly denied.</p>

The action was originally brought against John L. Sardy and J. Bard Rogers, copartners, composing the firm of Sardy, Coles & Co., and Nathaniel P. Rogers, their assignee, to recover the possession of certain merchandise which the complaint alleged Sardy, Coles & Co. had pledged to the plaintiff to secure the payment of their demand note of $3,000, given to the plaintiff for a loan by the plaintiff to them of that sum.

<p>1. Appeal—Order Reversing upon the Facts. The rule that, upon an appeal from au order of the Appellate Division reversing a j udgment upon the facts and'granting a new trial, the Court of Appeals will presume that the reversal was not upon the facts, unless the contrary clearly appears in the body of the order, is or ought to be familiar to counsel, and the failure of the respondent to have the order truly express the decision of the Appellate Division is at his peril.</p> <p>2. Presumption op Reversal upon Questions op Law. Where such an appeal has been taken, although it is apparent that the reversal was upon the facts, if the order contains no statement to that effect it will be presumed to have been upon the law, and if the record discloses no errors of law, the reversal, although properly directed, cannot be sustained and the judgment of the trial court must bo affirmed.</p>

The action was upon a liquor tax bond given by the defendants to the treasurer of the county of Dutchess May 1, 1897, upon the application by the defendant Edward Perl-mutter for a liquor tax certificate, which was then issued to him.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, made December 1, 1900, which affirmed an order of Special Term confirming the report of a referee upon the trial of certain contested claims against the defendant. The following questions were certified : 1.

' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 20,1900, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for • a new trial.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 4, 1901, which reversed an order of Special Term denying a motion on behalf of the petitioners to refer their claims for damages to the commissioners of estimate and assessment, pursuant to section 14 of chapter 1006 of the Laws of 1895, and granted said motion.

Appeal, by permission, from a judgment entered upon an order of the Appellate Division of the Supreme Court in the first judicial department, made June 8, 1900, which reversed an interlocutory judgment sustaining a demurrer to the amended complaint and directed judgment overruling said demurrer. The following question was certified: “ Does the amended complaint herein state facts sufficient to constitute a. cause of action ? ”

<p>Motion for realignment. (See 165 N. Y. 65.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June-24, 1897, affirming a judgment in favor of plaintiff entered upon a verdict, and an order denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 22,1900, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term.</p>

in the second judicial department, made March 7, 1899, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, and granting a new trial.