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and 136 New York State Reporter SPRING, J. The action is upon a merchant's account, commenced by the administrator of Mary E. A. Clark, deceased, who for years carried on a small country store at Point Peninsula, in Jefferson county. The defendant purchased goods on credit of Miss Clark, and the administrator claims the books now show on this account a balance of $207.95.

The books were received in evidence, although there was considerable testimony pro and con over the question whether Miss Clark kept honest accounts. We are satisfied that there is something unpaid on this account. It commenced back in 1890, and was carried along on the daybook until it amounted to $109.07 in April, 1894. A new pass book was then commenced, and this sum was not carried forward on the new book. On the ledger it was not brought forward, but a new account was commenced. In March, 1896, the old account was added in on the ledger, and the balance then due was given as $158.14. The separate items for the ensuing year to April, 1897, are set out on the ledger, and all the charges are then grouped, and the balance carried along.

The defendant impugned only one of these charges against him, and that is a barrel of salt at $1.25. The items are given, along with the date, for each charge, and apparently the account was carefully kept. Every payment to which the defendant testified, except one, is found among the credits. The defendant testified that he paid to the father of the intestate $20 to apply on this account, the date of which he was unable to state, and no credit for that sum appears on the books. While the defendant, in a general way, testified to payments, yet he gave no date or sum, except to those for which he was given credit.

There are errors in the entries on the books, but they are trivial in amount, are palpable, and evidently unintentionally made. The referee in his opinion states that the defendant "probably * the plaintiff something," but he is not able to ascertain the amount. It seems to us, on the evidence appearing in the record, the balance can be ascertained and credit given to the defendant for everything to which he is entitled. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and new trial ordered, on the facts, with costs to the appellant to abide event. All concur.

Owes

(118 App. Div. 553)

WOLFORD V. NEW YORK CENT. & H. R. R, CO. (Supreme Court, Appellate Division, Fourth Department. Mareh 6, 1907.) 1. CARRIERS-INJURY TO PASSENGER-NEGLIGENCE.

For a trainman, when he knew the train had not arrived at the station platform, and that it was not time for the passengers to alight, and that the train was liable at any moment to start suddenly while passengers might be obeying his instruction, to throw open the car door, call the station, and say, "All change!" is negligence.

[Ed. Note.-For cases in point, see Cent. Dig, vol. 9, Carriers, $ 1121.) 2. SAME--CONTRIBUTORY NEGLIGENCE.

A passenger, unused to travel, who, on a trainman throwing open the car door, calling the station, and saying, “All change!" and the train stopping, and other passengers moving, went to the door, with a valise in her band, and started to get off the train, having hold of the rail with her hand, and who, when on the second step, was thrown by the train starting with a sudden jerk, cannot be held guilty of contributory negligence as matter of law, though she did not notice whether the station platform had been reached.

McLennan, P. J.. dissenting.

Appeal from Trial Term, Oneida County.

Action by Isabel Wolford against the New York Central & Hudson River Railroad Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS,
KRUSE, and ROBSON, JJ.

Hiscock, Doheny, Williams & Cowie, for appellant.
Wilson & Wortman and T. E. Hancock, for respondent.

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WILLIAMS, J. The judgment and order should be affirmed, with costs. The action is to recover damages for personal injuries, alleged to have resulted from defendant's negligence. The appellant claims there was insufficient evidence upon which to base the findings by the jury of negligence on the part of the defendant and absence of contributory negligence by the plaintiff.

The facts which the jury might find, and upon which they might base their verdict, are as follows: The plaintiff was a married woman, 48 years old, and a farmer's wife. She lived in a part of Onondaga county remote from the city of Syracuse. She had been to Syracuse but twice before the accident, once about six years before, and once about two years before, and on both these occasions some one was with her. At the time of the accident she was alone. She was unused to traveling. She took the train at Weedsport about midday. She sat in the coach, the second seat from the front door. As the train neared the Syracuse station, but before it arrived at the station platform, the place for passengers to get out, the trainman opened the front door of the coach, near where plaintiff sat, and called out "Syracuse !" three times, and said “All change!" and then went into the car ahead. The train stopped. The plaintiff left her seat, went to the door, and started to get off the train. Other passengers were moving also. She had a valise in her hand. She supposed the train had arrived at the place where the passengers were to alight. She went out upon the platform of the car and started down the steps. When she reached the second step, and was about to step down to the third one, the train started suddenly, with a jerk, and threw her to the ground. She used care and caution in going down the steps, having hold of the rail with her hand. The place where she was thrown off was in fact about 150 feet from the station platform. She did not notice that she was not opposite the platform when she attempted to alight. She supposed she was, because of the call and throwing open of the door, and the moving of other passengers, and did not have that in mind, and did not look particularly to ascertain whether she was opposite the station platform or not. She

102 N.Y.S.-64

and 136 New York State Reporter was seriously injured, and no claim is made that the verdict, $2,000, was excessive.

There was other evidence which, if believed, would have varied these facts somewhat; but the jury was not bound to believe the railroad employés and disbelieve the plaintiff. Upon the facts referred to above, there can be no doubt that the questions of defendant's negligence and the absence of contributory negligence by the plaintiff were properly submitted to the jury. The conduct of the trainman, when he knew the train had not arrived at the station platform and it was not time for the passengers to alight, and that the train was liable at any moment to start suddenly, when passengers might be obeying the instructions he had given them, "All change!" was negligent in the extreme, and was liable to cause injury to passengers not acquainted with the locality and unused to traveling. It might not deceive some passengers, but it was conduct almost certain to cause trouble to such a person as the plaintiff was. And it cannot be said as matter of law that the plaintiff was guilty of contributory negligence. She had a right to travel alone, although inexperienced, and unused to traveling, and unacquainted with railroads and their habits when their trains were approaching Syracuse. Her care and prudence were to be measured, like that of a child, by her degree of intelligence and knowledge of the world and of the ways of railroads.

Judgment and order aflirmed, with costs. All concur, except McLENNAN. P. J., who dissents on the ground that the evidence wholly fails to establish actionable negligence on the part of the defendant.

(117 App. Div. 773)

GRAVEY V. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. March 1, 1907.) 1. MUNICIPAL CORPORATIONS–TORTS-DEFECTS IN SEWERS AFTER CONSTBUCTION

-DUTY OF MUNICIPALITY-LIABILITY FOR DAMAGE.

Where a city provides sewers for surface drainage, and fails to use reasonable diligence to discover and remedy defects therein, which were discoverable by an examination, it is liable for damage resulting therefrom which are the ordinary result of the use of the sewer.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Cor.

porations, & 1782.] 2. SAME-NOTICE OF DEFECTS.

Where it is the duty of the city to keep its sewers in repair, no notice of a defect in the sewer is necessary, in case of damage resulting therefrom, to fix the liability of the city.

[Ed. Note. For cases in point, see Cent, Dig. vol. 36, Municipal Corpo

rations, $ 1789.) 3. SAME-ACTIONS FOR INJURIES-EVIDENCE-SUFFICIENCY.

In an action against a city for damages caused by the flooding of land by its sewer, in the absence of testimony on the part of the city, it was sufficient for plaintiff to show that there was a break in the sewer, and that the flooding was in consequence thereof. Appeal from Trial Term, Kings County.

Action by Bernard Gravey against the city of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before JENKS, HOOKER, GAYNOR, and MILLER, JJ. James D. Bell and D. D. Whitney, Jr., for appellant. William 0. Miles, for respondent. JENKS, J. The action for negligence was tried at Trial Term without a jury. The court found that the defendant, a municipal corporation, maintained a sewer in front of the plaintiff's premises and adjacent to them, and that, owing to the negligence and carelessness of the defendant in maintaining the sewer and other sewers in connection, water and sewage flowed upon the plaintiff's premises, to his damage. It seems that the sewer was constructed above the ground. The plaintiff gave testimony that there was a break in the sewer, and that the flooding was in consequence thereof. In McCarthy v. City of Syracuse, 46 N. Y. 194, the court, per Rappallo, J., say (pages 197, 198):

"The mere absence of this notice does not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting to be notified by citizens that they are out of repair, and repairing them only when the attention of the officials is called to the damage they have occasioned by having become dilapidated or obstructed; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. Where the obstruction or dilapidation is an ordinary result of the use of the sewer which ought to be anticipated and could be guarded against by occasional examination and cleansing, the omission to make such examinations and to keep the sewers clear is a neglect of duty which renders the city liable. Barton v. City of Syracuse, 37 Barb. 292, affirmed 36 N. Y. 54."

See, too, Schumacher v. City of New York, 166 N. Y. 103, 107, 59 N. E. 773, 774, where the court, per Vann, J., say:

“Having provided gutters, culverts, and sewers for the surface drainage, it was bound to the use of reasonable diligence to discover and remedy defects therein. Barton v. City of Syracuse, 36 N. Y. 54; McCarthy v. City of Syracuse, 46 N. Y. 194; Hines v. City of Lockport, 50 N. Y. 236; Nims v. Mayor, etc., of Troy, 59 N. Y. 500 ; Mayor, etc., of N. Y. v. Furze, 3 Hill, 612."

In the absence of all testimony on the part of the city, I think that the evidence suffices to support the judgment. In Magee v. City of Brooklyn, 18 App. Div. 22, 45 N. Y. Supp. 473, where the sewer discharged its contents upon the lands of the plaintiff, this court, per Cullen, J., said (page 24 of 18 App. Div., and page 474 of 45 N. Y. Supp.) :

"The judgment can also be well supported on the ground upon which it was placed by the court below-that of negligence. The defendant insists that previous to the time of the occurrence of the overflow, the subject of this suit, the sewer and drain had proved adequate to carry away the surface water and sewage. If this be so, the fact that on this occasion the sewer overflowed the plaintiffs' land would tend to show that at that time the drain had become in some way defective or obstructed. We think the rule, ‘res ipsa loquitur,' applies. The defendant was called upon to explain what was the trouble or difficulty with the sewer on this particular occasion, and that it was not responsible for that difficulty. It wholly failed to give any sufficient explanation upon the subject."

The learned corporation counsel relies mainly upon Jenney v. City of Brooklyn, 120 N. Y. 164, 24 N. E. 274. In that case a fire hydrant had been removed, and in its place a stream of water gushed out and 136 New York State Reporter Upon this proof the plaintiff rested, whereupon the city proved recent construction of the hydrant, by the best known method in use, of new and good materials, and a work well done. The plaintiff offered no rebuttal. The court said that the evidence but permitted a guess that the hydrant had been forced out by the pressure of water, rather than by some active power above the surface, and held that the case was barren of evidence to support a finding of negligence. The learned counsel lays stress upon the language of the opinion. But in any event this case did not present the mere feature of flooding the plaintiff's premises by the sewer, but a break in the sewer and a consequent flooding.

I recommend affirmance of the judgment, with costs. All concur.

(118 App. Div. 897)

QUINIAN v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, Second Department. March 1, 1907.)

Appeal from Trial Term, Kings County.

Action by Annie L. Quinlan against the city of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before JENKS, HOOKER, GAYNOR, and MILLER, JJ.

PER CURIAM. Judgment unanimously affirmed, with costs, on the authority of Gravey v. City of New York (decided herewith) 102 N. Y. Supp. 1010.

(117 App. Div. 782)

MOSSEIN V. EMPIRE STATE SURETY CO.

(Supreme Court, Appellate Division, Second Department. March 1, 1907.) 1. Costs-NEW TRIAL.

Where judgment for plaintiff was reversed, and new trial granted, costs "to abide the event," plaintiff, succeeding on a second trial, is entitled to costs of both trials.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Costs, 88 938,

1010.) 2. SAME--TERM FEE-AMENDMENT OF COMPLAINT,

The original issue as on the calendar before amendment of the complaint being destroyed by such amendment, plaintiff is not entitled to have

taxed any term fee in the trial court prior to such amendment. Appeal from Special Term, Kings County.

Action by Edward P. Mossein, as president of Local Union No. 471 of the United Brotherhood of Carpenters and Joiners of America, against the Empire State Surety Company. From an order denying a motion for retaxation of plaintiff's costs, defendant appeals. Modified and affirmed.

See 89 N. Y. Supp. 813; 98 N. Y. Supp. 144.
Argued before JENKS, HOOKER, RICH, and MILLER, JJ.
F. J. Moissen, for appellant.
William F. Hagarty, for respondent.

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