Volume 40 — New York State Reporter

<p>Appeal from a decree of the surrogate’s court of Otsego county appointing the respondent, Ichabod McIntosh, administrator of the goods, chattels and credits of George Clarke, deceased, and awarding the petitioner his costs and disbursements against the appellant and contestant, Daniel R. Bennett, after the filing of his answer in such proceeding.</p>

<p>1. New trial—Newly discovered evidence.</p> <p>A new trial will not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative, or is not so decisive in its character as to be likely to change the result.</p> <p>3. Same—Negligence.</p> <p>Newly discovered evidence to the effect that plaintiff’s son was driving with a loose rein and carelessly five rods from the place where the accident occurred, is not sufficiently important or decisive to warrant the granting of a new trial.</p>

Action to recover moneys claimed to have been overpaid on a land purchase. Plaintiff purchased of defendant a piece of land fronting on Long Island sound, claimed to contain 22 57-100 acres, at a certain price per acre.

<p>1. Railroads—Appropriation op street.</p> <p>While it is competent for the legislature to authorize railroad, tracks, either for steam or horse railroads, to be laid on the ordinary grade of streets, the fee of which is in the state or municipality, without making compensation to abutting owners for consequential injuries to their property, the legislature cannot legally authorize structures for railroad purposes to be erected therein for the use and convenience of railroads which practically exclude the abutting owners from the part of the street so occupied, without compensating them for the injury suffered, and it is not necessary that there should be an actual physical exclusion of the lot owners from the use of that part of the street to entitle them to a legal remedy, but it is enough if such part of the street is practically and substantially closed against them for ordinary street uses.</p> <p>2. Same—Change op grade.</p> <p>Pursuant to permission given by the common council ’of the_ city defendant constructed its railroad through the street in front of plaintiff's premises, and in doing so constructed an embankment which was five feet high at that point, leaving a space between the retaining wall and the curb of only nine feet, not sufficient to allow teams to pass each other, nor a single team to turn without difficulty. The embankment was twenty-four feet wide, was paved, and had two tracks. The provisions of the charter as to a change of grade of streets were not complied with. Held, that there was</p> <p>no change of grade, hut an appropriation of the street to the purposes of the railroad, and that plaintiffs were entitled to recover for the injuries done to their property.</p> <p>(Earl and Pinch, JJ., dissent.)</p>

<p>1. Eminent domain—Rapid transit act.</p> <p>When the proceedings instituted under the rapid transit act of 1875 have terminated in the organization of a corporation, which must construct, maintain and operate a railroad upon certain routes, prescribed and located by commissioners, as the public agents, directed by the act to be appointed for that purpose, the lands necessary for that purpose have been as much appropriated and devoted to that exclusive use by sovereign power, as though it had been so declared in some special enactment.</p> <p>3. Same.</p> <p>The subsequent purchase or condemnation of the fee in the lands in the course of the railroad construction is merely incidental and is necessary in order to compensate property owners for the land taken and to effect a transfer of the legal title.</p> <p>3. Same,</p> <p>Chapter 533, Laws 1884, known as the Parks act, was inoperative to take away or authorize the deprivation or curtailment of the rights of plaintiff acquired under the act of 1875, and the appropriation of the described tract to the purposes of a public park was subject to the exercise by the plaintiff of its franchise to maintain and operate its railroad upon the strip of land across the park.</p>

<p>Ejectment to recover possession of certain parcels of land.</p>

<p>Divorce—Adultery.</p> <p>Evidence sufficient to prove the commission Of adultery.</p>

<p>Appeal from that part of a judgment, entered after a trial by the court at special term, by which it was adjudged that the plaintiff was entitled to recover of the defendant bank only the sum. of $1,706.13, without costs.</p> <p>The action was brought by the plaintiff against the United States National Bank and one John J. Lonth, as an executor of the will of Mendlich Gottberg, and also individually, to procure-a judgment that six certain bonds of the St. Paul & Sioux City Eailroad Company were the property of the estate; that the bank. was not entitled to hold them as owner or as security for a loan to Louth, and that the bank should deliver the bonds to plaintiff or pay to him $6,500 in case a delivery could not be had, with damages for detention.</p>

<p>1. Executors and administrators—Accounting—Monets expended by" widow.</p> <p>The will of testator gave to his widow the right to possess and enjoy the-rents and profits of his estate during her life, and that if they were not sufficient for her support a sale might be had, with remainder over after her decease. No trustee was provided for. Held, that the widow was entitled to possession of the corpus of the estate, and that the executor-was not chargeable with the moneys expended by her for her support, including money spent for the purchase of a house, or for moneys paid by her to one whom she recognized as a creditor of the estate, although the. evidence as to the indebtedness was slight.</p> <p>2. Same—Funeral expenses.</p> <p>Allowance should not be made to the executor for tombstone and funeral expenses in the absence of vouchers therefor or proof that the amounts, claimed have been paid.</p> <p>3. Same—Distribution.</p> <p>The decree on a settlement of an executor’s accounts directed distribution among testator’s four children, it having appeared in the early part of the proceeding that testator left only four, when in fact there were five. Held, that the decree should be amended in this particular.</p>

Appeal by the claimant, Charles J. Hamilton, from an order of the county judge of Erie county distributing the proceeds of the sale of a canal boat called the “New York Sensation.”

<p>Appeal from, a judgment entered in Monroe county in favor of the respondent, and against the appellants, on the 20th day of March, 1891, for $3,319.48.</p>

<p>Appeal from order denying motion for preliminary injunction.</p>

Exceptions ordered to be heard in the first instance at the general term, and .an appeal from an order denying defendants’ motion for a new trial. The action was brought to recover damages for personal injuries received by •plaintiff at the hands of the captain of the bark Rebecca Caruana while upon the high seas. 1

The action was brought to recover damages for personal injuries received by the plaintiff, and occasioned by the negligence of one of the defendant’s drivers, and resulted in a verdict of $5,000 in favor of the plaintiff.