Volume 185 — New York Reports

Egleston, deceased. This action was brought in order that the will of George W. Egleston might be judicially construed. The testator, a resident of this state, died in England, in 1904, and the instrument is in his own handwriting. lie left an estate of considerable size, which is disposed of, wholly, among his widow and three sons.

<p>1. Contempt — When Appellate Division Has No Power to Reverse as a Matter op Law Order op County Judge Discharging Relator upon Hearing op Writ op Habeas Corpus. Where, upon the hearing of a writ of habeas corpus to procure the discharge of a person committed for contempt in failing to obey an order to appear before a referee to testify as a witness in supplementary proceedings, the county judge, before whom the writ was made returnable, discharged the relator from custody, the Appellate Division has no power to reverse the order of the county judge “as a matter of law and not as a matter of discretion” unless all the jurisdictional facts are admitted or conclusively established; and where such facts are not traversed or denied, and determined in favor of the relator by the county judge, the Appellate Division has no power to disturb his conclusions upon questions of law only, if til ere is any evidence to support his findings, or any view of the facts that required or justified him in discharging the relator from custody.</p> <p>2. Witnesses — Attendance in Supplementary Proceedings Compelled Only by Subfíena. An order punishing a witness for contempt in failing to appear before the referee, in pursuance of an order, and testify in proceedings supplementary to execution is void; the attendance of witnesses in such proceedings can be enforced only by the due service of the process of subpoena as upon the trial of an action.</p> <p>3. Evidence. Pacts not traversed or denied, alleged in a petition for a writ of habeas corpus instituted to procure relator’s discharge from imprisonment under an order adjudging her in contempt, even if not admitted, constitute evidence upon the hearing of the writ, and if they show that she was not guilty of contempt she is entitled to be discharged.</p> <p>4. When Witness Not Subject to Fine to Indemnify Judgment Creditor. An order adjudging a person guilty of contempt for failing to obey an order to appear and testify before a referee in supplementary proceedings, imposing as a fine the amount of the judgment sought to he recovered and directing it to be paid to the creditor, is without power, where the creditor may maintain an action for damages for failure to obey any process issued with jurisdiction. (Code Civ. Pro. §§ 852. 853, 854, 2284.)</p> <p>5. Indefinite Mandate of Committal. An order committing a person for contempt in failing to appear as a witness in supplementary proceedings on a day named or on other days and times not named does not sufficiently set forth the particular circumstances of the offense (Code Civ. Pro. § 11) and is too indefinite to authorize arrest and incarceration.</p> <p>6. Witness Must Be Personally Served with Order and Tendered Legal Fees. A third person ordered to testify as a witness in supplementary proceedings, who is not personally served with the order and tendered his legal fees, cannot be punished for contempt in failing to obey it.</p>

which reversed an order of the Westchester County Court denying a motion to confirm the report of commissioners of estimate and assessment in the within proceeding and granted said motion. The nature of the action and the facts, so far as material, are stated in the opinion. The trustees having proceeded under the amendment of 1902 to the village charter, they had no power to assess back upon the properties the purchase price of land acquired under that amendment.

<p>1. Street Surface Railroads—Forfeitures — Section 5 of Railroad Law (L. 1800, Cu. 565) Applies Thereto — Section 99 Not Exclusive and Does Not Exempt Street Railroads from Provisions of Section 5. The self-executing forfeiture provisions of section 5 of the Railroad Law (L. 1890, cli. 565, as amended) that “If any domestic railroad corporation shall not, within five 3'cars after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per cent of the amount of- its capital, or shall not finish its road and put it in operation in ten years from tiie time of filing such certificate, its corporate existence and powers shall cease,” although found in article 1 of the Railroad Law, which relates to steam'railroads, are applicable to street surface railroads; since section 99 of said law, applicable solely to street surface railroads, which also relates to forfeitures and provides that “‘In case any such (street surface railroad) corporation shall not commence the construction of its road, or of any extension or branch thereof, within one year alter the consent of the local authorities and property owners or the determination of the General Term as heroin required, shall have been given or renewed, and shall not complete the same within three years after such consents, its rights, privileges and franchises iu respect to such railroad extension or branch, as the case maybe, may be forfeited; ” is not exclusive and does not, therefore, exempt street surface railroads from tile provisions of section 5.</p> <p>3. Extension of Street Surface Railroads — Certificate Thereof, an Amendment of Articles of Incorporation — Extension Must Be Commenced or Constructed as Required by Section 5 of Railroad Law. A certificate of extension filed by a street surface railroad company is in effect an amendment of its original articles of incorporation, presciibing the line and route of an addition to the route described iu its certificate of incorporation, and to that extent amends the original articles of incorporation; the period within which sucli corporation must act as to such extension commences to run from the date of the fding of the certificate of extension, and a failure to comply with the requirements of section 5 of the Railroad Law within the time therein fixed results in a forfeiture of the franchise to build the extension.</p> <p>3. Chapter 491 of Laws of 1901, Amending Section 93 of Railroad Law, and Chapter 508 of Laws of 1901, Amending Section 5, Have No Application to Street Surface Railroads Which Have Forfeited Franchises Before the Enactment of Such Laws. The provisions of the statutes, Laws of 1901, chapter 494, amending section 93 of the Railroad Law and providing that “ Every consent by the local authorities of any city of the first class or of any city, town or village now embraced within the corporate limits of any city of the first class heretofore given to or acquired or owned by any street surface railroad corporation, since January first, eighteen hundred and ninety, is hereby ratified and confirmed, and shall be deemed to be in full force and effect; and shall continue until and including December thirty-first, nineteen hundred and three, when it may he forfeited,” etc., and Laws of 1901, chapter 508, amending section 5 of the Railroad Law and providing that “This section (5) shall not apply to any street surface railroad incorporated prior to July 1, 1895, which has obtained or become the owner of the consents of the local authorities of any city of the first or second class,” have no application to a street surface railroad which had absolutely forfeited and lost its franchise to construct an extension to its route, before the enactment of such statutes, for its failure to comply with the requirements of section 5 of the Railroad Law.</p> <p>4. Mandamus — Street Surface Railroad, Which Has Failed to Comply With Section 5 of Railroad Law, Is Not Entitled to a Mandamus Compelling City Authorities to Grant Permit to Construct Extension. Where a street surface railroad company, owning and operating a street surface railroad on Broadway and other streets in tiie city of Brooklyn, caused to be filed and recorded, on May 28, 1893, a certificate of extension of its road between certain limits upon Saratoga avenue in said city, and on July 24, 1893, the common council of said city granted its consent to said railroad company to construct, maintain and operate such proposed extension, which right, privilege and franchise were afterwards transferred to another company, which company, sometime between January 16,1894, and September, 1903, obtained the requisite consents of property owners for the construction of said extension, but, until the time that it applied to the authorities of the borough of Brooklyn, on or about June 12, 1904, for a permit to construct a double track street surface railroad upon the route designated in the certificate of extension, such company had never taken any steps to commence or complete the construction of such extension, the company is not entitled, upon the refusal by said authorities to grant the permit asked for, to a writ of mandamus to compel them to permit the company to construct a double-track extension of its street surface railroad in Saratoga avenue.</p>

The facts, so far as material, are stated in the opinion. In view of the manner in which the unsworn statement of defendant’s son, Edward Johnson, was presented to the jury, justice requires that a new trial he had within the provisions of section 528 of the Code of Criminal Procedure.

<p>1. Negligence — Derailment of Locomotive Caused by Ice on Railroad Track. Where a locomotive, .pushing a snow plow, for the purpose of removing snow from a railroad track, was derailed and overturned by ice formed between the rails, thereby causing the death of a fireman employed upon the locomotive, a judgment against the company for causing such death cannot be sustained upon the ground that it was the duty of the company to furnish its servants with a reasonably safe place to work, and that it was for the jury to determine whether the ice rendered the tracks and the road of the defendant unsafe, and whether the defendant was negligent in allowing them to remain in that condition; the real question at issue is not whether the defendant was negligent in, failing to furnish a safe place for its servants to work, but whether it was negligent in the conduct of the work of removing snow from its tracks.</p> <p>2. Same — Facts Reviewed and Held Insufficient to Sustain Verdict That Company Was Negligent in Work of Removing Snow From Tracks. Where the evidence in such case shows that it is the ordinary practice of railroads, when the fall of snow is very light, to run a Hanger over the road to remove the snow that adheres to the rails, and when the fall is heavier to use a snow plow, followed by a flanger, and where there is ice in switches or frogs or between the boards and rails at crossings and similar places, to remove it by picks, but between stations and-in the open country to run the snow plow over the track whether the rails are covered with ice or not; and it also appears that ice is not likely to accumulate on a track which is in use and over which trains pass and there is uncontradicted evidence showing that at least one train safely passed over the track shortly before the fall of the snow which plaintiff’s intestate was engaged in removing and during the time when the plaintiff contends that patches of ice should have been seen by the track-walker, and there is no evidence that the defendant had any knowledge that there was ice on the tracks, it cannot be held that the defendant was negligent in the manner in which it conducted the work. Assuming that the presence of the ice was known to the trackwalker and that he failed in his duty to point it out to the employees, working on the locomotive and snow plow, his negligence was that of a fellow-servant and cannot be imputed to the company.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s evidence was sufficient to submit the question of the defendant’s negligence to the jury. (Devoe v. N. Y. C. & H. R. R. R. Co., 174 N. Y. 1; Smith v. L. Mfg. Co., 56 App.

The plaintiff appeals from the order and judgment, stipulating that upon affirmance by this court judgment absolute may be rendered against him. This action is brought on a certificate of guaranteed, six' per cent income stock, issued by the defendant, a building and savings association, which reads as follows : “Humber Shares “ 1,504-A Shares $100.00 each. 10. “ Habbob and Sububban Building and Savings Association oe Hew Yobk. “ Chartered 1888.

The facts, so far as material, are stated in the opinion. The writings of the deceased in the Hudson Street Hospital were incompetent and prejudicial to the defendant. They were improperly admitted under objection and exception.

<p>1. Evidence — Personal Transaction with Decedent — Code Ciy. Pro. § 829. Where in an action under section 2653a of the Code of Civil Procedure attacking the validity of a will admitted to probate by the Surrogate's Court, the interests of certain defendants and the plaintiff are precisely the same so far as they can be affected by the action, the plaintiff is as incompetent, under section 829, to testify in their behalf in reference to any personal transaction between her and the decedent, as she is to give such testimony in her own behalf.</p> <p>2. Proof of Insanity in Other Members of Decedent’s Family — When Incompetent. Mental derangement is not to be inferred in the absence of some manifestation of its existence in the person whose capacity is under investigation; so that while proof of hereditary tendency may add to tiie weight which might be given to personal manifestations of insanity, it will not suffice of itself to establish that any mental disorder exists. In the absence, therefore, of any proof whatever of insane conduct on the part of a testator, the existence of insanity in him cannot be inferred from evidence to the effect that the mental derangement from which his sisters were suffering was due to an inherited tendency.</p>

The plaintiff, claiming to be the owner in fee, and to have been in the possession for over twenty-three years, of certain real estate, brought this action against the defendants to determine the title and to bar them from all claim thereto. The defendants denied the plaintiff’s title and set up their title to the estate as devisees under their father’s will. The premises, originally, belonged to Thomas Doherty, or Dougherty, who died seized thereof in 1874.

<p>Appeal — When Appeal from Reversal by Appellate Division "with Direction for New Trial Will Not Be Dismissed. Where, upon appeal to the Court of Appeals from an order of the Appellate Division reversing a judgment upon the facts and granting a new trial, it is found that questions of fact are involved upon which the reversal could properly have been based, the appeal will not ordinarily be dismissed but the order of reversal will be affirmed and judgment absolute awarded against the appellant upon the stipulation.</p>

<p>1. Municipal Corporations — Power to Compel Telegraph and Telephone Companies to Place Wires .Underground — Village of Carthage. While it is competent for the state to delegate its sovereign powers to cities and villages in regard to the construction, maintenance and control of telegraph and telephone corporations, such surrender of sovereignty cannot be implied, but must rest upon express legislation containing a clear and unqualified grant of power; in the absence, therefore, of express legislative authority, the village of Carthage has no power to compel a telephone company to place the extension of its existing linos in the streets of the village in underground conduits.</p> <p>3. Authority to Brf.ot Telegraph and Telephone Poles Not Conferred by Village Law — Villages I-Iave Power of Regulation Only. Nor is such authority conferred by the Village Law (L. 1897, ch. 414, § 89, subd. 9); the right of such companies to erect poles and string wires is conferred by the state through the Transportation Corporations Law (L. 1890, ch. 560, art. 8, § 102), not by village authorities, who are permitted to regulate their erection only; that is to say, the location of the poles and the streets to be occupied.</p>

The facts, so far as material, are stated in'the opinion. The court erred in refusing to permit May Ontl to testify that the acts of the appellant were those of an irrational person. (Clapp v. Fullerton, 34 N. Y. 194; Matter of Ross, 87 N. Y. 514; People v. O'Brien, 36 N. Y. 282; People v. Conboy, 97 N. Y. 66; Hawlett v. Wood, 55 N. Y. 634; Hughes v. Griffith, 12 Wkly.

receive stolen goods knowing the same to have been stolen. The facts, so far as material, are.stated in the opinion. The facts in this case did not warrant the conviction of the defendant for the crime of an attempt to criminally receive stolen goods. (Penal Code, § 550 ; 2 Bishop’s Cr. Law, 1140; 1 McClain’s Cr.

The facts, so far as material, are stated in the opinion. The Court of General Sessions had the power to entertain a motion for a new trial. (Quimbo Appo v. People, 20 N. Y. 531; Miller v. Finkle, 1 Park. Cr. Rep. 374; King v. Price, 6 East, 322; King v. Justices of Leicestershire, 1 M. & S. 442 ; 1 Chitty’s Cr. Law, 772; People v. Braduer, 107 N. Y. 1; Matter of Clark, 168 N. Y. 427.) The application for an absolute writ was properly denied at Special Term. (2 High on Ext.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 11, 1906, which affirmed a judgment of Special Term sustaining a demurrer to the complaint in a taxpayer’s action to test the constitutionality of chapter 629 of the Laws- of 1905.</p>

Appeal' from an order of the Appellate Division of the Supreme Court in the second judicial department, entered August .9,1905,which affirmed a decree of the .Kings County Surrogate’s Court directing distribution of the estate of Charles P. Ebbets, deceased.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 29, 1905, which affirmed an order of the Orange County Surrogate’s Court assessing a transfer tax upon the estate of Mary A. Weeks, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 9, 1906, which affirmed an order of Special Term declaring void a primary election held in the ninth ward of the city of Watervliet, September 19, 1905, and directing that a special primary election be held for the election of a member of the Democratic general committee of the county of Albany from said ward.</p>

<p>Motion for re-argument. (See 184 N. Y. 168.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 12,1906, which affirmed a judgment of Special Term in an action for the foreclosure of a mortgage.</p>

Mosher, deceased, for alleged services rendered to such deceased prior to her death, which claim had been rejected by the executor.

Cross-appeals from a judgment of the Apjiellate Division of the Supreme Court in the first judicial department, entered February 7,1906, modifying and affirming as modified a judgment of Special Term in an action to determine the amount to which plaintiff was entitled under a contract of employment as attorney in a proceeding to obtain compensation for damages to property by reason of a street opening.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 8, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been received by reason of defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 29,1905, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial, and granted a new trial in an action to recover for the death of plaintiff’s intestate alleged to have.been caused by the negligence of defendants.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 11, 1905, which affirmed a decree of the Monroe County Surrogate’s Court sustaining objections to the allowance of certain items in the accounts of the executors herein.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1904, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained through defendant’s negligence.</p>

<p>Appeal from an order of the Appellate Division of the' Supreme Court in the first judicial department, entered April 20, 1906, which affirmed an order of the New York County Surrogate’s Court denying a motion to vacate an execution for the collection of costs ordered to be paid by the appellant herein personally in a proceeding for the removal of said appellant as trustee of the estate of Ferdinand Hirsch, deceased.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial' department, entered March 16, 1906, which affirmed an order of Special Term referring questions of fact arising upon a motion to punish defendant for contempt. ■ The following question was certified: “ Can the city of Rochester, a municipal .corporation, be punished in this action for a contempt of court

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1906, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 9,1906, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and two intermediate orders theretofore made in an action to foreclose a lien on collateral held as security for the payment of two promissory notes.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February IT, 1904, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for personal injuries alleged to have been caused by defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 13,1905, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term in an action to enforce a lien upon moneys due from the city of New York to the defendant Masterson.</p>