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and 136 New York State Reporter maintenance, and operation of said railroad up to a period of thirty days after completion of said railway, and for the faithful execution and performance of the terms and conditions upon which this franchise is granted and the provisions of law applicable thereto, and upon the faithful performance of all the provisions and conditions herein contained, then this obligation to be void; otherwise, to remain in full force and effect.

“(3) Said railroad shall be completed and in operation, in a generally east and west direction, through the village of Patchogue, and over its entire route from a point on Railroad avenue in Bellport on the east to a point on Railroad avenue or Lakeland Road in Sayville on the west, within two years from the date of the grauting of this franchise; otherwise, all rights and privileges under this franchise and consent shall cease and determine: Provided, however, that, if the said South Shore Traction Company shall be enjoined by the courts or stopped by any legal authority from completing said railroad over that portion of its route in this section set forth, the time of such disability shall not be a part of the time limited in this section, except that in no case shall the time so limited be extended more than one year after the disability ceases."

The plaintiff has not begun the construction of its road. On October 23, 1905, more than six months after the expiration of the two years provided in said consent as the time within which the road should be constructed, the highway commissioners of said town adopted a resolution extending the time of the plaintiff to construct its road for a period of one year from October 25, 1905. The bond provided for in said consent has not been given, but the validity of the order appealed from is by its terms conditioned upon the giving of said bond. The consent does not contain the expressed condition required by section 92 of the railroad law (Laws 1893, p. 910, c. 434) that the provisions thereof shall be complied with. Owing to the physical character of said street or highway, but one street railway can be constructed upon it.

The order of the learned court at Special Term appears to have been granted upon the theory that, as but one road could be constructed in said street, it was not competent for the highway commissioners to grant a consent while one previously granted remained in force; and the respondent seeks to sustain the order upon the theory that the granting of such second consent would impair the obligation of a contract within the meaning of the federal Constitution. It is insisted that the right granted is from necessity exclusive, and will, therefore, be invaded by a second grant. A discussion of this question at this time will not be profitable, for the reason that we have reached the conclusion that the consent to the plaintiff never became operative, because of the failure of the plaintiff to give the bond as provided in that portion of the consent quoted supra.

The respondent contends that the Legislature has provided in detail for the construction, maintenance, and operation of railroads, and that it is only competent for the local authorities to grant or withhold their consent without the imposition of any conditions whatever. This contention is based mainly upon two cases: Matter of Kings County Elevated R. R. Co., 105 N. Y. 97, 13 N. E. 18; Beekman v. Third Avenue R. R. Co., 153 N. Y. 144, 47 N. E. 277. The effect of those decisions was considered by this court in this department in Dusenberry v. N. Y. W. & C. Traction Co., 46 App. Div. 267, 61 N. Y. Supp. 420, and we adhere to the conclusion, there reached, that it is competent for the local authorities to impose a shorter term for the construction of the road than that provided by the general law, and we think that they could require the giving of a bond as a condition precedent. Section 93 of the railroad law (Laws 1901, p. 1234, c. 494) provides :

"The local authorities may, in their discretion, make their consent to depend upon any further conditions respecting other or further security, or deposit, suitable to secure the construction, completion and operation of the railroad within any time not exceeding the period prescribed in this article."

The learned counsel for the respondent contends that said provision of section 93 as now amended only applies to cities of 1,250,000 inhabitants; but, as we read the section, said provision applies alike to cities, towns, and villages. A provision of a consent requiring the deposit of a sum of money, which should become the property of the municipality in case of the failure to construct the road within a time stated, was assumed, without discussion, to be valid in Peekskill R. R. Co. v. Peekskill, 21 App. Div. 94, 47 N. Y. Supp. 305, affirmed 165 N. Y. 628, 59 N. E. 1128. It being competent for the local authorities to impose the condition, we can discover no reason for refusing to give effect to the terms of the condition as imposed. No time was provided within which the bond should be given, but the plaintiff had to give it before the consent obtained ever became operative. If the respondent is right in its contention that but one consent could be granted for the construction of a road in a place admitting the construction of but a single road, there is strong reason for giving full effect to a provision like the one under consideration, because otherwise the municipality would have no means of protecting its franchises from exploitation.

The resolution of the highway commissioners extending the time for the construction of the road was not a waiver of the provision requiring the giving of a bond. Assuming it to have been valid for the purpose of extending such time, which we need not now determine, it at most extended such time in accordance with the terms and conditions of the original consent, which only became operative upon the giving of a bond. It follows that at the time of the commencement of this action the highway commissioners had a perfect right to grant a consent to another corporation, with which the court could not interfere by injunction. It is unnecessary, therefore, to consider whether the provision respecting forfeiture in case of the failure to construct the road within two years is self-executing, or whether the default was waived by the resolution hereinbefore referred to.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with costs. All concur.

and 136 New York State Reporter (116 App. Div. 924)

SOUTH SHORE TRACTION CO. v. VILLAGE OF PATCHOGUE et al. (Supreme Court, Appellate Division, Second Department. January 11, 1907.)

Appeal from Special Term, Kings County.

Action by the South Shore Traction Company against the village of Patchogue and another. Defendants appeal from an order granting an injunction. Reversed.

Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, MILLER, and GAYNOR, JJ.

Joseph T. Losee, for appellant village of Patchogue.
Collins, Wells & Hughes, for appellant Suffolk Traction Co.
Arthur Crater Hume, for respondent.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with costs, upon the authority of South Shore Traction Co. v. Town of Brookhaven (decided herewith) 102 N. Y. Supp. 75.

(117 App. Diy. 316)

(Supreme Court Appellate Division, Third Department. January 9, 1907,) EVIDENCE--OPINIONS OF PHYSICIANS.

Where physicians have stated to the jury no facts tending to show that plaintiff had sustained any permanent injury, and no facts about the exanıination of him the day before the trial, except that they made it for the purpose of ascertaining his condition, and, besides this, have merely stated that some time after the accident they opened up his scalp and discovered a fissure or fracture, and, without investigating as to depth and details, scraped the bone and cleansed and dressed the wound, it is error to allow them to testify that from their treatment and examination of him, and their examination of him the day before the trial, it was reasonably certain that his injuries would be permanent; and this, though it be assumed that their testimony was based on what plaintitl testified to, as in such case they would be determining the effect of his testimony and what facts it established.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, $ 2376.) Appeal from Trial Term.

Action by William Leahy against the Gaylord & Eitapenc Company. From a judgment for plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals. Reversed, and new trial granted.

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

Jenkins, Page & Hays (Maurice E. Page, of counsel), for appellant.

Loughlin & Mangan (James L. Loughlin, of counsel), for respondent.

JOHN M. KELLOGG, J. The plaintiff was injured by an iron pipe falling on his head, and the verdict establishes that the negligence of the defendant's employés caused the injury. The plaintiff swears that since the injury he is nervous, at times is dizzy, is irritable, and suffers pain in his side and in his head, and that his memory is defective. His evidence upon the trial tended to show that he had a good memory. There is nothing, except the evidence of himself and wife, to indicate that he is now suffering from any cause. He received a verdict for $1,467.

To prove that the injuries were permanent he called two physicians who treated him. Their evidence tends to show that they first saw him a month or so after the accident, and that then there was a running sore upon his head. They opened up the scalp, and discovered, one says, a fissure in the skull, the depth and details of which he did not investigate. The other speaks of it as a fracture, the depth and details of which he did not thoroughly examine. They scraped the bone and cleansed and dressed the wound. The wound healed, but there is apparently a slight depression and scar at the spot where the injury was. There are no other physical indications of the injury. These physicians were permitted to testify, from all their treatment and examination of the plaintiff and their examination of him the day before the trial, that it was reasonably certain that his injuries will be permanent. This class of evidence was objected to upon the ground that it was immaterial, incompetent, irrelevant, no proper foundation laid, and assuming facts not proved, which objection was overruled. The physicians had stated no facts about the examination the day before the trial, except that they made it for the purpose of ascertaining the plaintiff's condition. They had stated to the jury no fact tending to show that the plaintiff had sustained any permanent injury. They were permitted to express an opinion without stating to the jury any fact upon which it was based. If we assume that their evidence was based upon the facts sworn to by plaintiff, then they determined the effect of the plaintiff's evidence and what facts it established. The evidence was clearly inadmissible. Davis v. Maxwell, 108 App. Div. 128, 133, 96 N. Y. Supp. 45. The mischief of such evidence is emphasized by the further examination of the physicians, which shows clearly that their evidence as to the permanency of the injury is based entirely upon conjecture and is a mere statement of possibilities. Briggs v. N. Y. C. & H. R. R. Co., 177 N. Y. 59, 69 N. E. 223, 101 Am. St. Rep. 718.

Two days after the injury the plaintiff returned to his work, and worked overtime for several days, and continued upon the work until the job was finished ; and he has performed about the same amount of work since the injury as before. He is a skilled plasterer, engaged in doing finishing work, and is not continually employed, but works from job to job as occasion permits. The defendant contended that the plaintiff had suffered no permanent injury and had lost only a few days' time. The substantial verdict shows that the jury must have allowed for a continuing injury, or one more or less permanent. The evidence of the physicians was therefore prejudicial, and without it the evidence does not fairly sustain the conclusion that the plaintiff suffered a permanent injury.

The judgment should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

į and 136 New York State Reporter (116 App. Div. 706)

In re SCHMID. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) 1. ADMINISTRATORS—ANCILLARY APPOINTMENT-REVOCATION OF LETTERS

WAIVER.

Decedent dying in Germany, an administrator was appointed there, and alleged ancillary letters of administration were issued in New York to petitioner for the reduction to possession of a legacy due decedent under the will of her father, who died in that state; petitioner giving no bond. Subsequently respondent, decedent's sister, was granted letters of administration, and in an accounting proceeding, to which petitioner and respondent were parties, the legacy was awarded to her; petitioner taking no appeal from the decree. Held that, the legacy being the only subject of administration within the jurisdiction of the court and petitioner having waived his right to it by failing to appeal from the decree awarding it to respondent, the Supreme Court would not interfere with a decree denying petitioner's application for the revocation of respondent's

letters of administration. 2. SAME-EFFECT OF PRIOR APPOINTMENT.

The appointment of an administratrix after ancillary letters of administration had been issued to another was not void, nor without jurisdiction, and could not be attacked collaterally.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, $$ 177-182.] Appeal from Surrogate's Court, Kings County.

Application by Anton Schmid for the revocation of letters of administration issued to Johanna Ilg. From a decree denying the application, petitioner appeals. Affirmed.

See 98 N. Y. Supp. 921.

Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.

T. D. Kenneson, for appellant.. Francis B. Mullin, for respondent.

WOODWARD, J. Just what practical result would be attained, in the event of a reversal of the decree appealed from, it is difficult to understand. The appellant does not suggest any, and in such a case the court is not called upon to be astute in discovering a technical ground for reversal. The practical question has been litigated, and the time for appeal has passed, and, unless there is something to be gained of practical value, it is hardly within the province of an appellate court to interfere with the decree of the court below. The facts are these:

Henry Streckfuss died in Kings county, leaving a last will and testament, which was duly admitted to probate in the said county on the 28th day of October, 1903. Henry Hollmann duly qualified as executor under this will. Streckfuss left a daughter, Louise Sprathoff, a resident of Germany, surviving him. This daughter took a legacy of $1,000 under the will. She died in Germany on the 23d of January, 1904. Her only next of kin were respondent, Johanna Ilg, a sister, living in the United States, and now a resident of the state of New York, and a brother, Frederick Andreas Streckfuss, living in Germany. After the death of Louise Sprathoff, and on the 14th day of February,

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