2. EVIDENCE-BEST AND SECONDARY-INTOXICATING LIQUORS-ISSUANCE OF LIQUOR TAX CERTIFICATE.

The county treasurer may testify that he issued the liquor tax certificate mentioned in the indorsement made and signed by him pursuant to Liquor Tax Law, Laws 1900, p. 857, c. 367, § 17, subd. 11, on the statement made by an applicant for a certificate; the provision of said section that said indorsement shall be competent and sufficient prima facie evidence of all the facts stated therein not making it the only competent and sufficient evidence thereof.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 471, 492, 501.]

3. INTOXICATING LIQUORS-BOND ON ISSUE OF LIQUOR TAX CERTIFICATE-ACTION ON BOND-EVIDENCE.

In an action on a bond given by one to whom a liquor tax certificate was issued, the obligation of the bond being that during the period liquors were sold under authority of the certificate the premises should not be used for illegal purposes, it is sufficiently shown that at the time of an illegal sale, during the natural life of the certificate, such certificate was in force, by evidence that it was then displayed in his place, testimony of the county treasurer that such certificate holder obtained no other certificate covering any of such period. and evidence that at the time of the illegal sale of liquor such holder said he had only a "growler's" license and could not sell by the drink.

Appeal from Trial Term, Rockland County.

Action by Patrick W. Cullinan, as state commissioner of excise of the state of New York, against Henry Horan and the Federal Union Surety Company. From a judgment for plaintiff, entered on a verdict directed by the court, and from an order denying a motion to set aside the verdict and for a new trial, defendants appeal. Affirmed.

Argued before HIRSCHBERG, P. J., and JENKS, HOOKER, GAYNOR, and MILLER, JJ.

Charles S. MacKenzie (Cortland A. Kiernan, on the brief), for appellants.

Samuel H. Salisbury, for respondent.

JENKS, J. This is an action by the state commissioner of excise against the holder of a liquor tax certificate and his surety to recover the penalty of the excise bond. The defendants answered separately. Upon the trial the surety company alone appeared; but it never cross-examined the plaintiff's witnesses, nor offered testimony. At the close of the plaintiff's case the defendant surety company moved to dismiss the complaint, but its motion was denied, under exception, and the court, under exceptions, directed a verdict for the plaintiff, and denied a motion for a new trial, made under section 999 of the Code of Civil Procedure.

It is contended that the learned trial court erred in the following ruling: Mr. Randolph, the county treasurer, produced the papers filed by the holder of the certificate upon his application therefor, and testified that they were the originals on file in his office. He was then asked:

"Q. Are these the original documents on file at your office? A. Yes. Q. Those indorsements were made by you in your handwriting, and that is

your signature to them? A. My clerk's handwriting. Q. Upon the filing

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of this application and statement and execution of the bond, did you issue to him the certificate mentioned on the indorsement of that paper? A. I did. "Counsel for the Defendant: I object to that as not the best evidence. It is always within the power of the excise department to procure the original. "The Court: Are you offering them in evidence?

"Plaintiff's Counsel: Yes.

"The Court: Mark them.

"(Papers referred to admitted in evidence and marked Exhibits D and E.)”

The objection was interposed after the question was answered, and there is nothing to indicate that it could not have been made before answer was made. Under such circumstances we are not bound to consider it. Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696. There was no motion made to strike out the answer. Again there was no exception taken. However, I will consider the merits.

The objection, "I object to that as not the best evidence," immediately followed by the statement, "It is always within the power of the excise department to procure the original," plainly indicates that the objection is made to the oral proof that the treasurer issued the certificate mentioned in the paper. I think that such oral proof of issue was competent. Subdivision 11 of section 17 of the liquor tax law (Laws 1900, p. 857, c. 367) does not provide that the certificate shall be the only competent and sufficient prima facie evidence of all the facts. A case strongly in point is Commonwealth v. Dill, 156 Mass. 226, 30 N. E. 1016. In that case objection was taken to the oral proof of marriage, on the ground that the record should be produced; and the court, per Holmes, J., said:

"It is true that the record by statute is presumptive evidence of the marriage (Pub. St. 1882, c. 145, § 29); but the record of a marriage is not like the record of a divorce, or other judgment or decree. It is a mere memorandum or declaration of the fact which effected the result, not itself the fact. nor that which has been constituted the only evidence of the fact. Section 31. There is no reason why the oath of the person who did the act should be deemed inferior evidence to a written statement by him or another. Commonwealth v. Norcross, 9 Mass. 492; Commonwealth v. Waterman, 122 Mass. 43, 59; Commonwealth v. Stevenson, 142 Mass. 466, 468, 8 N. E. 341; State v. Marvin, 35 N. H. 22."

See, too, Sprague v. Hosmer, 82 N. Y. 466.

Moreover, Rogers testifies that he visited the holder's premises in April, 1905, and then saw a liquor tax certificate for 1904 and 1905 posted in the window. This was competent evidence. Commonwealth v. Brown, 124 Mass. 318.

It is also contended that the plaintiff failed to show that the bond was in force at the time of the alleged violations. The alleged violations of law were made on April 22, 1902, during the natural life of a liquor tax certificate and when such certificate was in the possession of the holder. The bond was read in evidence. The obligation thereof was that during the period liquors were sold under the authority of the certificate the premises were not to be used for illegal purposes. Cullinan v. Fidelity & C. Co. (Parker Cert.) 84 App. Div. 296, 82 N. Y. Supp. 827, affirmed on opinion below 177 N. Y. 573, 69 N. E. 1122. The point is made that it cannot be presumed that the certificate issued continued in existence from June, 1904, until April 22, 1905. But the plaintiff did not rest upon presumption. The county treasurer

testifies that during the year commencing May 1, 1904, and expiring April 30, 1905, the holder did not obtain any other liquor tax certificate. There is evidence, as I have pointed out, that at the time of the alleged violations such certificate was in his possession and displayed in his place. And the excise agent testifies that when the holder sold the liquor to the agents he said to them that he only had "a growler's license and I can't sell by the drink." The term "growler" is "slang U. S. for a vessel, as a pitcher, jug, pail, or can, brought by a customer for beer." Century Dictionary. If there were any doubt as to the meaning of the term, it is dissipated by the explanation of the speaker, "and I can't sell by the drink."

I see no error in the record that would justify the disturbance of the judgment, and I therefore recommend that it and the order be affirmed, with costs. All concur.

(117 App. Div. 318)

THAYER v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Third Department, January 9, 1907.) 1. RAILROADS OPERATION-PERSONAL INJURIES-PERSON ON TRACK-QUESTION FOR JURY.

In an action for injuries from being struck by a train while caught in the cattle guards, evidence held to present a question for the jury whether the engineer made a proper effort to stop the train after discovering plaintiff's peril.

2. APPEAL-REVIEW-QUESTIONS OF FACT-NONSUIT.

In reviewing a judgment on a nonsuit, the appellate court must assume the most favorable view of the evidence for plaintiff, giving him the benefit of any inferences which may properly be drawn from it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4024.]

Chester, J., dissenting.

Appeal from Trial Term.

Action by William Thayer against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant on a nonsuit at the trial, plaintiff appeals. Reversed, and new trial granted.

Argued before SMITH, CHESTER, KELLOGG, and COCHRANE, JJ.

Fletcher W. Battershall (J. Newton Fiero, of counsel), for appellant.

Harris & Rudd (William P. Rudd, of counsel), for respondent.

JOHN M. KELLOGG, J. The plaintiff caught his foot in a cattle guard in the defendant's track, and was run over by an approaching train, receiving serious injury, for which he seeks to recover. It is conceded that the plaintiff had no business on the track, and the defendant was not called upon to exercise any care in looking out for his safety until it saw that he was in danger, and was then required to exercise the care which the known circumstances required to prevent an injury to the plaintiff. It therefore became necessary for the

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plaintiff affirmatively to show at what particular time before the accident the engineer of the train first saw that plaintiff was imperiled, and for that purpose he called the engineer, who swore that when the engine was about 375 feet from the plaintiff the fireman notified him that some one at the cattle guard was swinging the train up, and he saw the plaintiff's head and part of his face, but by reason of an obstruction could not see the remainder of the plaintiff's person. Upon cross-examination the witness swore that he immediately did all that he could to stop the train. The plaintiff saw the train, and was swinging his hat as a warning all the while the train was approaching. The train consisted of five loaded freight cars, two empty cars, the engine, and tender. The engine and some of the cars were equipped with air brakes. The brakes, when tested just before the accident, worked properly; and it is not shown that any of the appliances of the train or engine failed to act properly. At a speed of 5 or 6 miles per hour the train was descending grade of about 107 to 187 feet per mile, or an average grade of about 148.84 feet per mile. It stopped about 325 feet beyond the cattle guard, or about 700 feet from the place where the engineer first saw plaintiff's position. The track was in good condition. The plaintiff called two witnesses who qualified as experts in the management of a train. The conditions governing this train were stated, and their testimony tended to show that, if the engineer had done what he says he did, the train should have been stopped within 50 to 200 feet of the place where the power was first applied.

The plaintiff contended that this evidence presented the question of fact for the jury whether, after the emergency was known to the engineer, he did what reasonably could have been done to stop his train. The engineer of the train was the party at fault, if there was any fault with the defendant, and that fact was proper to consider with reference to his credibility. While we may feel that it is not entirely probable that this train, upon such a grade, could be stopped within the distance indicated by the experts, the question of their credibility and the probability of their testimony rested with the jury, and not with the court in the first instance. In reviewing this nonsuit, we must assume the most favorable view of the evidence in favor of the plaintiff, giving him the benefit of any inferences which may properly be drawn from it. The jury might have found, upon all the evidence, that the engineer did not make a proper effort to stop the train, and that, if he had done all he could do to stop it, the accident would not have happened. After verdict found the presiding justice has a right to order a new trial, if he feels that it is based upon evidence which is entirely unreliable and improbable. But he could not fairly pass upon those questions until after the jury had considered the case.

The judgment is therefore reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except CHESTER, J., who dissents.

(52 Misc. Rep. 407.)

FARMERS' LOAN & TRUST CO. v. KIP et al

(Supreme Court, Special Term, New York County. December 27, 1906.) PERPETUITIES-SUSPENSION OF ALIENATION-TESTAMENTARY TRUSTS.

Where a testamentary trust did not authorize the sale of certain premises until the death of the survivor of two of testator's daughters, an attempted testamentary disposition by such survivor of certain property, including that embraced in the original trust, by which attempted disposition she ordered that such property should be held in trust for the use and during the life of a certain person, with remainder to persons who could not be ascertained until the death of the cestui que trust, was invalid, since if it were held valid, it would result in suspending the power of alienation for three lives.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Perpetuities, }} 46, 47, 52, 53.]

Action by the Farmers' Loan & Trust Company, as substituted trustee under the will of George Jones, deceased, against Frances Coster Kip and others. Interlocutory judgment rendered.

Man & Man, for plaintiff.

Frank L. Hall, for defendant Frances Coster Kip.

W. T. Emmett, for defendant New York Life Ins. & Trust Co.
Strong & Cadwalader, for defendant Daniel Butler Fearing.
Lyman Ward, for defendant Lewis Quentin Jones.

J. Du Pratt White, for defendant Margaret Smith.
Thomas J. Sanson, for defendant Wm. Alex. Smith.
Stewart & Scherer, for defendant United States Trust Co.
Fritz W. Hoeninghams, for defendant Wm. Burgh Kip.

NEWBURGER, J. This action is brought by plaintiff to pass its accounts, and for directions to whom and in what proportion the balance found in its hands shall be distributed. George Jones died in December, 1886, leaving as his only heirs three daughters, Rebecca Mason Jones, Frances Jones, and Margaret Smith; a grandson, Daniel Butler Fearing; a grandson, Lewis Quentin Jones; and a greatgranddaughter, Frances Coster Kip. George Jones died seised and possessed of certain real estate in New York City, known as "No. 70 Broadway," and left a last will and testament. In the fourth article of the will he provides as follows:

"Fourth. I give and devise to my executor, hereinafter named, the premises extending from Broadway to New street, known as 'No. 70 Broadway,' in the city of New York, during the life of the longest liver of my daughters, Frances Jones and Rebecca Mason Jones, in trust, however, for the following purposes: To lease the said premises, or any part thereof, for such term or terms, as to my said executor may seem advisable, to pay the taxes, charges, insurance, repairs and other expenses necessary to keep the property in good condition, and to pay over the net income of the said property semiannually to the same persons, and in the same proportions, and subject to the same conditions as are herein stated in the fifth. sixth, seventh, eighth, ninth and tenth clauses of this will in relation to the general remainder of my estate. At the death of the longest liver of my said daughters, Frances and Rebecca, I empower my executor to sell the said premises, No. 70 Broadway, and I give and devise the proceeds thereof as follows: One-fifth thereof to the appointees of my daughter Frances Jones, by deed or by will, and in