Volume 178 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The projected extension of defendant’s street surface railroad is a work of such character as the law forbids construction of unless and until the board of railroad commissioners shall certify that public convenience and necessity require it. (Matter of N. H. R. R. Co., 76 Hun, 76 ; Matter of A., etc., R. R. Co., 87 Hun, 578 ; Matter of K., etc., R. R. Co., 6 App.

<p>Master and Servant — Safety of Working Place. Where it appears that the plaintiff in an action of negligence sustained injuries from falling through a trap door not fitted with hinges, which was improperly replaced by her co-servants, and it is a fair inference from the evidence that such co-servants, who were working below the trap door, could not close it from below and bring it down to a level with the surrounding floor, for the reason that it was a very tight fit and required considerable force to drive it back into position, it is a question for the jury whether the accident was not likely to occur in the absence of hinges on the door, which would have held it firmly in place, so that it would have been either wide open and the aperture perfectly obvious, or practically closed, substantially covering the opening and immovable if stepped upon, and, therefore, whether the defendant, under the circumstances, had furnished a safe place in which the plaintiff was required to work.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 8,1903, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. The relator is a transportation company, and its gross earnings are wholly derived from interstate business, and, therefore, the tax levied on them by the comptroller is violative of the Constitution of the United States.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, in order to maintain her action, was obliged to show that a notice in writing of, the place where the accident occurred was given to the mayor, city clerk or some alderman within forty-eight hours after the happening thereof.

<p>Negligence — When Foreman Is Not the Alter Ego op the Master. An employer is not liable to a stevedore working in the hold of a vessel until quite dark for an'injury caused by the neglect of a foreman to light lamps which the employer had provided and which it was the foreman’s duty to light, inasmuch as such act cannot be considered as within the personal duty of the employer, the performance of which he delegated to the foreman, but is to be regarded as within the line of a mere servant’s duty and as a detail of the work in which the employees were all engaged and with respect to W'hich they and the foreman were fellow-servants.</p>

The indictment against the defendant contains two counts, each charging an attempt to violate a distinct section of the Penal Code, the first being founded on section 94 and the second on section 531. The facts appearing on the trial, as well stated by the Appellate Division, are as follows : “Richard C. Flower was a physician and was also engaged in promoting certain mining interests.

The nature of the action and the facts, so far as material, are stated in the opinion. The appeal is properly before the court. (Smith v. L. V. R. R. Co., 77 App. Div. 47 ; H. F. Ins. Co. v. G. F. Ins. Co., 138 N. Y. 252 ; City of Buffalo v. D., L. & W. R. R. Co., 176 N. Y. 308 ; Altman v. Hofeller, 152 N. Y. 498.) Mo allowance should have been granted. (Code Civ. Pro. § 3253 ; Smith v. L. V. R. R. Co., 77 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 21, 1904, which reversed an order of Special Term confirming the report of commissioners of estimate and assessment in the proceeding herein. The facts, so far as material, and the questions certified are stated in the opinion.

<p>1. Constitutional Law—Chapter 272, Laws of 1903, Amending. Penal Code, § 640, Subd. 16, Prohibiting Use op United States and State Flags for Advertisement, Unconstitutional IN PAkT.</p> <p>That part of subdivision 16 of section 640 of the Penal Code, as amended by chapter 272 of the Laws of 1903, providing that “Any person, who in any manner, for exhibition or display, shall place or cause to be placed, any word, figure, mark, picture,, design, drawing or any advertisement, of any nature, upon any flag, standard, color or ensign of the United States or state flag of this state, or ensign, * * * or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose, any article or substance, being an article of merchandise, or a receptacle of merchandise upon which shall have been printed, painted, attached or otherwise placed, a representation of any such flag, standard, color or ensign, to advertise, call attention to, decorate, mark, or distinguish, the article, or substance, on which so placed, * * * shall be deemed guilty of a misdemeanor * * *” applies as well to articles manufactured and in existence when it was lawful to manufacture them and have them in possession as to those thereafter manufactured or acquired; it attempts, therefore, to destroy existing property rights and, whether the value thereof be much or little, it is void.</p>

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 10, 1903, which modified and affirmed as modified a determination of the defendant assessing a franchise tax upon the relator for the year ending October 31, 1897. The relator is a domestic corporation owning and operating a system of cable and telegraph lines extending from this state into other states and countries.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff is not entitled to maintain this action because her ownership of the lease accrued at a time when defendant’s structure was in the street, operating as at present, because she sues as owner of a lease made since that time with rent fixed in accordance with the conditions now existing and has suffered no damage.

<p>Í. Railroads — Action Against Street Railroad Company by Abutting Owner, Claiming to Own to Center of Street —When Determination of Trial Court upon Question of Title Will Not Be Reviewed. Where the question at issue in an action for trespass brought by an abutting owner against a street railway corporation is whether the plaintiff had title in fee to the strip of land lying in front of his premises between the center of the highway and the boundary thereof and the determination of the trial court has been unanimously affirmed by the Appellate Division, the question of title cannot be examined or reviewed by the Court of Appeals upon the ground that the only question involved is the construction of the conveyances under which the plaintiff claims, where they were ihtroduced in evidence for the purpose of establishing title and no question of law as to their pertinence or effect was raised by an exception to their admission in evidence.</p> <p>3. Same—When Proof That Railroad Company Has Failed to Comply with Statutory Requirements Is Inadmissible in Such Action. In such an action evidence tending to show that the company had not complied with the statutory requirements necessary to enable it to build the railroad is not admissible when there is no allegation in the complaint that the organization of the company was incomplete or that it had not complied with the requirements of the statute.</p> <p>• 3. Same — When Plaintiff in Such Action, Having Failed to Establish Title to Street, Cannot Maintain the Action as a Mere Abutter. Where the plaintiff in such action has failed to establish his title to the street, he is not entitled, as a mere abutter, to an injunction against the railroad company for having built the railroad in violation of law, when such cause of action is not set up in the complaint and the action was based upon the claim that he owned the fee to the street and that the trespass was against bis rights as such owner.</p> <p>4. Damages—Erroneous Admission of Evidence on Question of Damages — When Error Is Harmless. Where improper evidence on the question of damages has been admitted on the part of defendant to contradict the same kind of proof on the part of- plaintiff, and the court has properly held that the plaintiff was not entitled to recover, the evidence is harmless and its erroneous admission is not a valid reason for disturbing the judgment.</p>

The nature . of the action and the facts, so far as material, are stated in the opinion. The complaint states facts sufficient to constitute a cause of action against each of the respondents. (Marie v. Garrison, 83 N. Y. 14 ; Johnson v. Golder, 132 N. Y. 116 ; Conklin v. McCauley, 41 App. Div. 452 ; Richter v. Nimmo, 63 App. Div. 422 ; Allen v. Addington, 7 Wend. 10 ; Ward v. Center, 3 Johns. 271 ; March v. F. Nat.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered Jan-nary o, 1904, which affirmed a decree of the Saratoga County Surrogate’s Court judicially settling the accounts of the administrators of the estate of Frank Thompson, deceased, and denying a motion by the appellants herein for leave to intervene in the proceeding.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 22, 1903, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court- on trial at Special Term.</p>

<p>Appeal from, a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 17, 1903, affirming a judgment in favor of defendant entered upon a dismissal of the complaint upon the merits by the court at a Trial Term.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 23, 1903, in favor of plaintiffs upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p>

<p>Appeal from so much of a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 24, 1903, as affirms that part of a judgment in favor of plaintiffs which includes an additional allowance of $2,000 to the plaintiffs’ attorney.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1903, which affirmed an inter locutory judgment of Special Term overruling a demurrer to the complaint. The following question was certified: “ Does the amended complaint in this action state facts sufficient to constitute a cause of action in favor of plaintiff herein, against the defendant herein ? ”

Cross-appeals from three several judgments of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1903, August 13, 1903, and April 8, 1904, which modified and affirmed as modified judgments entered upon the report of a referee in an action to foreclose a mechanic’s lien.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 4, 1903, which affirmed a judgment in favor of defendant as to the first cause of action, entered upon a dismissal of the complaint by the court at a Trial Term, and reversed a judgment in favor of plaintiff as to the second cause of action entered upon a verdict.</p>