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Certainly that corporation had no authority to grant subfranchises to individuals or corporations to use the streets of the city of New York, without the consent of the state or city.

I also think that this relator is not now in a position to exercise any franchise, even assuming that it had acquired the franchise granted to the American Electric Manufacturing Company. It is not claimed that this relator has acquired the property or plant which the American Electric Illuminating Company operated in the year 1889, or that that plant has been in existence, or can be used by the relator. It claims to have acquired under a sale by a receiver whatever right the American Electric Illuminating Company had at the time that the sequestration proceedings were instituted. Now, the only authority granted by the resolution of the board of aldermen was to place, construct, and use wires, conduits, and conductors for electrical purposes in, over, and under the streets, avenues, wharves, and parks, "according to such plans as may be directed, approved or allowed by and subject to the powers of the electrical subway commissioners.” Before this company, or any one having acquired the right of this company to exercise such a franchise, would exercise it, the "plans" must be approved or allowed by the board of electrical control, or those public officers who have succeeded to its duties. It is not given any right to use the streets of New York except in accordance with plans so approved ; and, until such plans are approved, no right exists under the resolution to use the streets or operate the franchise. It appears that no such plans have been prepared or approyed, and that the relator is not in a position to exercise the franchise, and therefore it seems to me that, the relator having no authority when the application was made to use the franchise, no mandamus could be granted. I think this defendant was entitled to insist that before a mandamus should be granted the relator should show a clear legal right to use the streets of the city of New York under the franchise granted by the board of aldermen.

It appears in opposition to this motion that there are no unoccupied ducts in the streets through which the relator seeks to place its electrical conductors. Under its contract with the city of New York, which has been ratified by the Legislature, the relator is bound to construct ducts in the streets, if unoccupied ducts do not exist when demanded by any corporation or individual entitled to use the streets of the city for electrical conductors. If this mandamus is granted, this corporation will be compelled to construct for the use of the relator electrical conductors, although it does not appear that the relator is authorized to use the ducts when constructed, or will ever be authorized to exercise the franchise to furnish electricity to the public. The rules of the commissioner of water supply, gas, and electricity, who has succeeded to the powers of the board of electrical control, apply only to the permission of a person authorized to use the streets, and have no application to the approval of the plans for the exercise of franchises which, as I read the resolution of the board of aldermen, constituted a condition precedent to the exercise of any franchise. But these rules seem to contemplate an application to the commissioner before the defendant can be required to supply ducts. Rule 1 provides that and 136 New York State Reporter no wires, cables, or other electrical conductors shall be placed in any subways, conduits, or ducts now constructed, or hereafter to be constructed, without the written consent of the commissioner of water supply, gas, and electricity being first obtained, and that whenever any duly authorized corporation or person desires or is required to place electrical conductors underground, application must be made to the commissioner of water supply, gas, and electricity, on forms provided for that purpose, for such accommodation as may be desired, and, if the commissioner acts upon such application favorably, he will issue the necessary authorization in the event that the unused facilities of existing subways are insufficient to meet legitimate requirements; and provision is then made for the construction of electrical subways and for the application for space in the subway to be made to the subway company, and it is then provided that, when application has been made and space assigned for conduits underground, the written consent of the commissioner must be obtained before any conductors are placed in the space so assigned. Under these rules it would appear that the right to use the streets must first be approved by the commissioner and the right to apply to the subway company must be predicated upon such approval by the commissioner. To say that the court can grant a mandamus to the subway company requiring it to allow a corporation space in its subway before the commissioner has acted favorably upon an application for a permit for the use of the streets underground seems to me to be a violation of these rules.

I do not think, therefore, that this relator is in a position to ask for this mandamus, and that the court' below should have denied the application.

LAUGHLIN, J., concurs.

(52 Misc. Rep. 314)

MILLER V. INTERNATIONAL RY. CO. et al. (Supreme Court, Special Term, Erie County. December, 1906.) 1. Carriers-INJURIES TO PASSENGER-EVIDENCE-SUFFICIENCY.

In an action against a street railway for injuries to a passenger, owing to her having stepped into a hole in a street when alighting from

a car, the facts held to sustain a finding that defendant was negligent. 2. MUNICIPAL CORPORATIONS-DEFECTS IN STREET-INJURIES-EVIDENCE-SUF

FICUENCY.

In an action against a city for injuries to one who stepped into a hole in a street, evidence held to sustain a finding that defendant was

negligent. 3. APPEAL-REVIEW-QUESTIONS OF FACT-FINDINGS BY COURT.

Where, in a cause tried to the court without a jury evidence was heard on behalf of both parties, though it appeared by the 'return on appeal that the court rendered a judgment of “nonsuit,” it must be treated on appeal as a judgment on both the law and the facts, as if

rendered on the verdict of a jury. 4. CARRIERS-INJURIES TO PASSENGER-EVIDENCE-ADMISSIBILITY.

In an action against a city and a street railway company for injuries sustained by plaiptiff owing to her having stepped into a hole in the street on alighting from a car, it was not error to exclude the testimony

of a witness that conductors on former occasions bad warned her to look out for the hole.

Appeal from Municipal Court of Buffalo.

Action by Mary Miller against the International Railway Company and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Stephen V. O'Gorman, for appellant.
Dana L. Spring, for In-ernational Ry. Co.
John W. Ryan, for City of Buffalo.

WHEELER, J. This action was brought to recover for personal injuries sustained by the plaintiff in alighting from a street car of the International Railway Company, near the corner of Fillmore avenue and East Utica street, in the city of Buffalo. This accident in question occurred in the nighttime. It appeared from the evidence that at the point in question Fillmore avenue had been paved with asphalt, but that the asphalt had become broken, so that a hole existed in the pavement, perhaps 15 feet in length by some 5 or 6 feet in width. The hole in question appears by the evidence to have been of varying depth -in its deepest part perhaps from 3 to 4 inches. It began about 12 inches from the rail of the railway track, and ran generally parallel to it. The broken pavement at this point left an uneven surface at the edge of the hole, and the plaintiff's testimony was to the effect that on alighting from the car she stepped upon this uneven surface or edge of the hole, that it caused her foot to turn, and she was thrown down, spraining her ankle and otherwise bruising and laming her limbs and back, so as to confine her to her bed and house for some weeks. It also appears from the testimony that this hole in the pavement had existed for a year or so, probably growing larger and deeper from the action of the elements and the ordinary travel on the street. The plaintiff complains that the railway company was negligent in two particulars: First, in neglecting to maintain the street pavement in prcper condition within two feet of its tracks, as required by law; and, second, in inviting the plaintiff to alight from its car at a dangerous place without giving her warning as to the danger. + The plaintiff also seeks to charge the city of Buffalo with liability for the accident for its alleged neglect to keep the pavement of the street in proper repair. The action was tried before the Municipal Court. At the close of the plaintiff's case, each defendant moved for a nonsuit. The motion was denied by the court. The defendants then introduced the evidence in their behalf and rested, and counsel for each renewed the motion for a nonsuit. The motion was denied by the court, and final decision of the case reserved. By the return it appears the court subsequently "rendered a judgment of nonsuit in favor of the defendants and against the plaintiff, dismissing the complaint.”

The hole in question had existed so long that I think from that fact a jury would have been justified' in finding that the defendants had notice of its existence. Whether or not the hole was of such a character as to render it dangerous to the general public, and whether it was negligence on the part of the street railway company to stop its cars and 136 New York State Reporter and invite its passengers to alight at this particular point without first warning them of the danger in so doing, were, in my opinion, questions of fact to be determined by the trial court from all the evidence in the case. Welch v. Syracuse, 70 App. Div. 362, 75 N. Y. Supp. 173; Wolf v. Third Ave. R. R. Co., 67 App. Div. 605, 74 N. Y. Supp. 336. Had the trial court had the aid and assistance of a jury, I am of the opinion it would have been necessary to have submitted to the jury the question of the defendants' negligence; and, had the jury passed on those questions, I am also of the opinion that the verdict would not have been disturbed, whichever way the jury found. The evidence was of such a character as to justify a finding either way. In this case, however, the case was tried and disposed of by the trial judge without a jury. He occupied the position of both judge and jury.

This court, on appeal, must assume that in rendering its decision the trial judge passed upon both the law and the facts and found adversely to the plaintiff on the facts as well as the law. In other words, that the trial judge held that the facts proven did not justify a finding of negligence on the part of either defendant. I am aware that in the return made on this appeal it is stated that a judgment of "nonsuit" was rendered; but that makes no difference as to its legal effect, for, if a cause be submitted to a justice, after hearing proof, and he takes time to make up his judgment, it is not then in the power of the justice to nonsuit the plaintiff. His determination is equivalent to the verdict of a jury and a judgment thereon, and, though he may call his judgment a judgment of nonsuit, and enter it accordingly, it will be deemed at law a judgment for the defendant, and will bar a subsequent action. Elwell v. McQueen, 10 Wend. 520; Hess v. Beekman, 11 Johns. 457; Smith v. McMellan, 90 Hun, 542, 36 N. Y. Supp. 24.

The judgment in this case, for the reasons stated, must be affirmed, unless the record discloses the trial court committed serious error either in the admission or exclusion of evidence. The plaintiff contends that such error was committed by the exclusion of the testimony of Mrs. Kramer, a witness for the plaintiff, to the effect that other car conductors on former occasions had warned her to "look out for the hole.” The record discloses that she was permitted on the trial to testify to such conversations with other conductors, but that afterwards the trial judge, having become convinced an error had been committed in permitting the witness to so testify, struck out the testimony. I think his final ruling was correct, upon authority of the cases of Clark v. M. R. R. Co., 77 App. Div. 284, 79 N. Y. Supp. 220; Taylor v. N. Y. C., 63 App. Div. 586, 71 N. Y. Supp. 884; White v. L. & Y. F. Ry. Co., 94 App. Div. 4, 87 N. Y. Supp. 901; Goetz v. Met. St. Ry. Co., 54 App. Div. 366, 66 N. Y. Supp. 666; Kay v. Met. St. Rv. Co., 163 N. Y. 417, 57 N. E. 751. In the case of Chapman v. Erie Railway Co., 55 N. Y. 579, relied on by plaintiff's counsel, the conversation testified to and held admissible, for the purpose of establishing notice of the habits of an employé, was had with the division superintendent. Notice to a superintendent is one thing, but notice or knowledge by some conductor other than the one on the car at the time of the accident is quite another thing. I think this distinguishes the case at bar, and that the ruling of the trial court was correct.

The judgment appealed from should be affirmed, with costs.

(52 Misc. Rep. 64)

MCCONIHE V. GIES et al. (Supreme Court, Special Term, New York County, November, 1906.) SUBBOGATION-GROUND OF OPPOSITION.

Where the owner of mortgaged realty devised it to her husband for life, with remainder to her children, and on attempt to sell the same the purchaser refused to take title on the ground that the power of sale given the executor was invalid, but offered to take title if the heirs would execute a deed to him, which they refused, and one of them thereupon brought partition, and at request of plaintiff in the partition suit and the life tenant an action was brought to foreclose the mortgage that the property might be sold in accordance with the wishes of the executor, a motion by one of the heirs, defendant in foreclosure, to compel an assignment of the mortgage to him for his special benefit, should be denied, on stipulations by plaintiff in foreclosure to take no further action pending the partition suit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Subrogation, s 104.] Action by Warren McConihe against Bernhard Gies and others. Motion to compel assignment of mortgage denied.

Action by the plaintiff to foreclose a mortgage, made in 1885 by Lisette Gies, corering 326 East Sixty-Sixth street, New York City. Lisette Gies died in 1885, possessed of the mortgaged premises, and in her last will and testament, admitted to probate in the New York county surrogate's office, she devised this real estate, subject to this mortgage, to her husband, Bernhard Gies, for life, and after his death to her eight children, share and share alike, and she appointed her husband executor with power to sell. In 1906 the executor contracted to sell the property under this power of sale, but the vendee refused to take title, claiming the power of sale was invalid. The executor received a desirable offer for the premises from this proposed vendee, who finally stated he would take title if all the heirs would execute a deed thereof to him. This they refused to do. The father, Bernhard, then requested one of his children to bring a partition suit for the sale of this property. This was done, and is now being contested and defended by Joseph Gies, one of the sons of the testatrix and the same person who is now moving this court to compel an assignment of the mortgage to him. After an answer was interposed in the partition suit, the husband and life tenant and also his daughter (plaintiff in partition) requested this plaintiff to bring this action in foreclo. sure, in order that the property might be sold in accordance with the wishes of the executor and to avoid complications arising by reason of the contract of sale. The executor claims that the property at the present time will bring a substantially higher price than it will a few months later. It is 16 feet and 8 inches wide by 100 feet deep, and large building operators have bought the premises on each side of it and in the rear, and are about to erect large apartment houses about it, cutting off the light and air from this mortgaged property. These contractors have taken an assignment of the contract of sale, and, if title can be immediately obtained to the property in question by them, they will, in order to make but one large apartment, instead of two, pay a price largely in excess of its present value. The son of the testatrix and also some of the other brothers and sisters, desire to prevent the sale of this property. The life tenant and the daughter bringing the partition action oppose the son's motion to compel an assignment of this mortgage to him, and ask the

102 N.Y.S.-17

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