and 118 New York State Reporter

were guilty of neglecting to use that ordinary degree of care which is required by the law, and that the plaintiff has failed to establish that he has been free from negligence contributing to the accident.

The only questions remaining are whether the learned trial court erred in charging the jury. There can be no doubt, if it were true that the learned court had charged that the defendant railroad company had the exclusive right of way over its tracks, that there would have to be a reversal of this judgment. The difficulty with the plaintiff's proposition is that a fair reading of the charge does not convey this idea. As I read the charge, it leaves clearly the impression that the defendant railroad company has a paramount right to the use of its tracks; and this is beyond all question the law, established by so many authorities that to cite them were a needless concession to drudgery. The language of the charge upon this point is as follows:

"The car has the right of way over the track. The law gives it the right of way. Nobody has the right to be there when the car comes up. Anybody there owes it a duty to be off before the car comes up; or, to put it more precisely, the law requires them to use reasonable prudence to be off when the car comes up. You have not the right even, to make a car slow up. You have no such right whatever. You have not the right to get on a railroad track and slow a car up. It is your duty to use reasonable care to be off by the time the car comes up, because the car is carrying the public. There may be fifty people in the car, or thirty, or twenty, who are not to be stopped by one person who gets on the track. On the contrary, that one person's duty is to use reasonable care to be off. He has a right to be there, but with that right goes the duty to be vigilant to be off before the car comes up. I only explain this to show the relative duty and position of the motorman. It is not a one-sided thing. He has a right to expect people will use reasonable prudence also. He is not the only one required to be reasonably prudent. People may be on the track, but it is their duty to be vigilant and careful to be away from it by the time a car comes up. That is not always possible. If you never got on a track in Broadway until you could get on there without coming near a car, you might spend your day going a block; while out in the country, where there is nothing, you can get on and off at will; there is no trouble at all keeping away. So that is relative again. What would be carelessness on a country road may not be carelessness in Broadway."

Clearly, the jury could not have understood that the right of the defendant railroad company upon its tracks was exclusive; that it had a right to run its cars over the same regardless of the presence of others. Taking the language in its ordinary sense, the charge in effect told the jury that the railroad company had the paramount right to the use of its tracks; that persons using the highway had a right to be upon the tracks, but that it was their duty to use reasonable care to be out of the way when a car came along; and that this duty of using reasonable care was mutual as between the railroad company, in the operation of its cars, and others lawfully using the highway. Accepting the rule contended for by the appellant that "the charge should receive such a construction as ordinary men, not learned in the law, would be apt to place upon it" (Corn Exchange Bank v. American Dock Co., 149 N. Y. 174, 182, 43 N. E. 915, 917), I am persuaded that the court did not err in this charge, but, on the contrary, took more than the usual care to state the limitations upon the rights of the respective parties.

I think it was proper for the court to submit the question of plaintiff's contributory negligence to the jury, for I have already pointed

out that the question is not whether any particular act of the plaintiff constitutes contributory negligence, but whether the evidence shows facts and circumstances which warrant the jury in finding that he has been free from negligence contributing to the accident. As I read the evidence in this case, it shows the plaintiff sitting upon the outside edge of a hayrack overhanging the track of the street-surface railroad, on a dark night, and that is all we are told about him, except that there was a collision between the hayrack and the car of the defendant railroad company, and that, in some manner unexplained, the plaintiff lost a leg; and the plaintiff alleges in his complaint, although he fails to prove, that his injuries were caused by being run. over by the car. Does this evidence show a case where no question of contributory negligence can arise, as in the case of Kleiner v. Third Avenue R. R. Co., 36 App. Div. 191, 55 N. Y. Supp. 394? I think not, and I am persuaded that it was for the jury to determine whether the plaintiff had sustained the burden of establishing that he was free from contributory negligence under the facts stated. In the Kleiner Case a woman was sitting inside of a carriage with three other ladies, having no control over the driver, and it was very properly held that the negligence of the driver could not be imputed to her, but it did not absolve her from establishing that she had been free from contributory negligence, although this was an inference. drawn from the fact that she was so placed as not to be in a position, by her own conduct, to contribute to the accident. So I have assumed in this case that the negligence of Underhill could not be attributed to the plaintiff, but the jury had a right to find, from the evidence, that the plaintiff had failed to exercise that reasonable degree of care which the circumstances in which he was placed demanded, or at least that he had not established by the evidence that he had been free from such negligence.

The judgment and order appealed from should be affirmed, with

costs.

FARUOLO v. RAFANELLI.

(Supreme Court, Appellate Term. November 6, 1903.)

1. APPEAL FROM MUNICIPAL COURT-ABSOLUTE COSTS.

REVERSAL-ALLOWANCE OF

Where a judgment of the Municipal Court has been rendered without jurisdiction, so that on appeal it must be absolutely reversed, costs must be allowed appellant, under Municipal Court Act, § 345 (Laws 1902, p. 1590, c. 580), so providing, though respondent by written stipulation offered in the court below to allow a reversal without costs.

Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Charles R. Faruolo against George Rafanelli. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

A. Finelite, for appellant.

P. S. Siatta, for respondent.

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FREEDMAN, P. J. In this action the respondent concedes that the court below did not render a judgment within the 14 days required by the statute, and that the judgment is a nullity. In such a case the court below loses jurisdiction, and, where an inferior court has rendered a judgment without jurisdiction, the appellate court may so far act as to reverse the judgment for want of jurisdiction. MacMahon v. Rauhr, 47 N. Y. 67; Lambert v. Salomon, 28 Misc. Rep. 562, 59 N. Y. Supp. 676. The respondent urges, however, that, inasmuch as he at several times has by written stipulation offered to allow the judgment in the court below to be reversed without costs, this court should reverse the judgment, and grant a new trial, without costs. This we are without power to do. This court cannot confer jurisdiction over either of the parties or the subject-matter after the same has been lost by the trial court. In such a case an absolute reversal of the judgment must be granted, and in cases of an absolute reversal the prevailing party is entitled to costs. Section 345, Municipal Court Act (Laws 1902, p. 1590, c. 580); Harding v. Ellston, 19 Civ. Proc. R. 252, 13 N. Y. Supp. 549; Wood v. Brown, 6 Daly, 428. Had the respondent herein availed himself of the provisions of section 325 of the Municipal Court act (Laws 1902, p. 1583, c. 580), only the sum of $5 could have been taxed upon reversal.

Judgment reversed, with costs. All concur.

UNION BANK OF BROOKLYN v. CASE.

(Supreme Court, Appellate Term. November 6, 1903.)

1. EVIDENCE-OBJECTION-WAIVER.

Though evidence of an agreement relieving defendant from liability might have been objected to as varying a written instrument, it having been admitted without objection, is in the record for all purposes.

Appeal from City Court of New York.

Action by the Union Bank of Brooklyn against David K. Case individually and as trustee. From a judgment for plaintiff, and from an order denying a motion for new trial, plaintiff appeals. Affirmed. Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

R. P. Orr, for appellant.

David K. Case, for respondent.

BLANCHARD, J. This is an action upon a note which reads as

follows:

"$700.

New York, November 28, 1902. "Four months after date I promise to pay to the order of myself seven hundred dollars at Union Bank of Brooklyn, New York.

"Value received. Charles R. Porterfield." Indorsed: "Charles R. Porterfield, Mary Augusta Nott, and Charles R. Porterfield, David K. Case, as Trustee."

The plaintiff introduced the note in evidence and rested. The defendant, Case, took the stand in his own behalf, and testified without objection to an agreement between the Kings County Bank, plaintiff's

predecessor, and himself, the effect of which agreement was to relieve the defendant, Case, from any individual liability, and likewise from liability as trustee, except under certain conditions.

We fail to find any error in the submission of the case to the jury. It may be that, had the evidence introduced been objected to as tending to relieve the defendant, Case, as trustee, from liability in contravention of the terms of the note itself, it might have been error to have admitted it for all purposes, but that contingency is not here presented. The evidence is in the record for all purposes, and as the record stands we fail to find any error.

The judgment and order appealed from should be affirined, with costs. All concur.

UNION BANK OF BROOKLYN v. CASE (three cases).

(Supreme Court, Appellate Term. November 6, 1903.)

1. COSTS-SEVERAL DEFENDANTS.

Under Code Civ. Proc. § 3229, providing that in an action against more than one defendant, plaintiff being entitled to costs against one, none of defendants are entitled to costs of course, where plaintiff is entitled to costs of course against one defendant, another defendant, who has judgment, though granted an extra allowance, is not entitled to costs, he not having specifically asked therefor or had them allowed.

Appeal from City Court of New York, Special Term.

Three actions by the Union Bank of Brooklyn against David K. Case individually and as trustee. From an order in each action affirming a taxation of costs, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.·

R. P. Orr, for appellant.

D. K. Case, for respondent.

BLANCHARD, J. These actions were brought upon promissory notes against the maker and indorsers. The maker did not defend. The indorser successfully defended, and obtained a verdict of the jury in his favor.

In action No. I it was stipulated that the other actions should abide the event of that trial. At the time the verdict was rendered, the defendant moved for an additional allowance, which was granted, and upon the stipulation a verdict was directed in favor of the defendant in the other two actions. The successful defendant did not ask specifically for costs. On the taxation of costs by the clerk the plaintiff contended that the defendant was not entitled to costs, because the court at trial term had not specifically awarded them. The clerk overruled that contention, and taxed the costs. In our opinion, this was error. The right of a party to costs is dependent upon stat

Subdivision 4 of section 3228 of the Code of Civil Procedure provides that the plaintiff is entitled to costs as of course upon the rendering of a final judgment in his favor in an action in which the complaint demands judgment for a sum of money only, provided he

and 118 New York State Reporter

recovers the sum of $50 or more. There can be no doubt, therefore, that the plaintiff was entitled to recover costs against the defendant who was maker of the note and in default. The next section (3229) provides that the defendant is entitled to costs of course upon rendition of judgment in an action specified in the preceding section, unless the plaintiff is entitled to costs. As we have seen that the plaintiff was entitled to costs as of course, it follows that the defendant was not, and could not be, entitled to them as of course. But where, in such an action against two or more defendants, the plaintiff is entitled to costs against one or two, but not against all of them, none of the defendants is entitled to costs as of course. In that case costs may be awarded, in the discretion of the court, to any, defendant against whom the plaintiff is not entitled to costs. Thus it is that in all cases where the plaintiff is entitled as of course to recover costs the statute referred to has made the right of a successful defendant in the same case to costs dependent upon the discretion of the court.

As the trial court did not exercise such discretion, the taxation of costs by the plaintiff was error, and the order of the Special Term of the City Court affirming such taxation must be reversed, with $10 costs and disbursements. All concur.

In re BODKIN'S ESTATE.

(Supreme Court, Appellate Division, Second Department. November 13, 1903.) 1. EXECUTORS AND ADMINISTRATORS-INSTRUCTIONS-HEARING-ADJOURNMENT— TERMS.

Where the papers in a proceeding by executors of an estate for instructions showed without dispute that B., one of the executors, individually was entitled to certain money in the hands of the others, it was not error for the surrogate to make an order adjourning the hearing, conditional on the payment of such money to B.

8. SAME-ORDER-AMENDMENT.

Where a conditional order adjourning the hearing of an application for instructions to executors was proper, and was subsequently amended so as to recite that the answer of two of the executors was one of the papers on which it was made, the addition of another clause, reciting that “the order so amended remain in full force and effect," was immaterial. 8. SAME-RECITALS-CONCLUSIVENESS.

Where an order giving instructions to executors recited that it was made after hearing G., attorney for petitioner, K., attorney for appellants, appearing and not opposing, such recital was conclusive, and precluded appellants from attacking the order.

Appeal from Surrogate's Court, Kings County.

Application to the surrogate for instructions by Margaret F. Bodkin, one of the executors of the estate of Dominick G. Bodkin, deceased. From certain orders in favor of petitioner, the other executors appeal. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

John R. Kuhn, for appellants.

M. F. McGoldrick, for respondent Margaret F. Bodkin, executrix.