App. Div.) DECISIONS IN CASES NOT REPORTED. FOURTH DEPARTMENT, NOVEMBER TERM, 1901. lant, v. William W. Smith and Stewart E. Baker, Respondents.- Judgment unanimously affirmed, with costs. No opinion. Chase, J., not sitting. The People of the State of New York ex rel. Charles R. Batt and William Lummis, the Purchasing Committee of aud Trustees for the Mortgage Bondholders of the Ogdensburg and LakeChamplain Railroad Company, and the Ogdensburg and Lake Champlain Railroad Company, Respondents, v. Harvey C. West and Others, as Assessors of the Town of Madrid, in the County of St. Lawrence and State of New York, Appellants.Judgment and order unanimously affirmed, with costs. No opinion. The People of the State of New York ex rel. The Levant Emery Company, Relator, v. Erastus C. Knight, as Comptroller of the State of New York, Respondent.- Determination of the Comptroller unanimously affirmed, with fifty dollars costs and disbursements, upon the authority of People ex rel. A. J. Johnson Co. v. Roberts (159 N. Y. 70). No opinion. Nelson Pratt, Respondent, v. John Patterson, Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Adelbert Potter, Appellant, v. Gouverneur and Oswegatchie Railroad Company and The New York Central and Hudson River Railroad Company, Appellants. Judgment unanimously affirmed, with costs. No opinion. John Pack, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant. - Judgment unanimously affirmed, with costs. No opinion. Jane Pilkey, Respondent, v. Lewis E. Harrower, Appellant. Judgment and order unanimously affirmed, with costs. opinion. No Clark T. Randall, Appellant, v. Patrick Conners, Respondent.-Judgment affirmed, with costs. No opinion. All concurred, except Parker, P. J., not sitting. No Elton J. Ross, Respondent, v. John King and John G. McCullough, as Receivers of the New York, Lake Erie and Western Railroad Company, Appellants.- Judgment and order unanimously affirmed, with costs. opinion. Cornelius W. Strait and Erastus Jones, Respondents, v. Charles Frank, Appellant.Judgment of the County Court affirmed, with costs. No opinion. All concurred. St. Regis Paper Company, Appellant, v. The Santa Clara Lumber Company, Respondent, Impleaded with Another.-Judgment unani 617 mously affirmed, with costs, on authority of same case in 55 Appellate Division, 225. No opinion. Barnabus Strobeck, Appellant, v. Emmet Borst, Respondent.-Judgment unanimously affirmed, with costs. No opinion. Joseph Sohmer, Respondent, v. Citizens' Steamboat Company of Troy, Appellant.Judgment and order unanimously affirmed, with costs. No opinion. Hermann Schmaltz, Appellant, v. Smith M. Weed, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. Mary B. Wood, Appellant, v. Simon P. Bauder, Respondent.-Judgment unanimously atfirmed, with costs. No opinion. Frank Whipple, Appellant, v. Mechanicville Brick Company, Respondent.- Judgment unanimonsly affirmed, with costs. opinion. No with Edgar F. Evans, Respondent, v. Alice Simpson, Appellant.- Motion granted, unless appellant file papers with clerk within ten days from service of copy of this order. If the papers are so filed motion denied. Jennie Foote, Appellant, v. Joseph Goldman, Respondent.Judgment affirmed, costs. No opinion All concurred.. Edward Johnson, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. -Judgment and order Case 18 affirmed, with costs. No opinion. All con-173 NY 79 curred, except Kellogg, J., dissenting. The People of the State of New York, Re- St. Regis Paper Company, Appellant. v. Santa No 66 66 617 617 Case 22 r173 NY 43 FOURTH DEPARTMENT, NOVEMBER TERM, 1901. Caroline B. Woodruff et al., as, etc., Plaintiffs, v. The Oswego Starch Factory, Defendant. Ordered that a further hearing in this case be had on the eighth day of January next, for reasons as stated in the per curiam memorandum filled with the clerk.-Submission of a controversy under an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. PER CURIAM: The submission in this case seems to call for a determination of the validity of section 8 of chapter 908, of the Laws of 1896, and, ex necessitate, of the validity of the tax levied in pursuance thereof by the assessors of the city of Oswego. In these circumstances it is certainly desirable, if not absolutely necessary, that that municipality should have an opportunity to be We conheard upon this branch of the case. clude, therefore, that before entering upon the consideration of the other questions dis, cussed so elaborately by counsel, such an opportunity should be afforded, and to that end it is ordered, that a further hearing be had upon this single question on Wednesday, the eighth day of January next, and that notice of such hearing be given to the corporation counsel of the city of Oswego, to the end that he may then be heard if he so desires; but we do not wish to be understood as holding that the city of Oswego must be brought into this controversy, or FOURTH DEPARTMENT, NOVEMBER TERM, 1901. that its appearance on the day named is in any sense compulsory. Present - Adams, P. J., McLennan, Spring, Williams and Hiscock, JJ. of In the Matter of the Proposed Opening and Laying Out and Construction of Nineteenth Street by the City of Niagara Falls, Respondent, Across the Tracks and Right of Way of the New York Central and Hudson River Railroad Company and the Erie Railroad Company, Appellants, and Others Decision of common council reversed, without costs to either party.- Appeal from a decision of the common council of the city of Niagara Falls to take Nineteenth street in said city across the tracks and right of way of the New York Central and Hudsou River Railroad Company, The Erie Railroad Company the Niagara Junction Railroad Company and the Buffalo, Thousand Island and Portland Railroad Company; and from its determination that the opening of said street across said railroad tracks and rights of way is a public necessity, which determination was evidenced by a resolution adopted by the common council March 25, 1901, upon notice to said railroad companies, and after hearing their respective counsel in opposition thereto.— MCLENNAN, J.: The appeal is taken under section 62 of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1897, chap. 754, and amd. by Laws of 1899, chap. 359). Section 61 of the act provides, in substance, that when a new street highway shall thereafter be constructed across a steam surface railroad, such street shall pass over or under such railroad or at grade, as the Board of Railroad Commissioners shall direct. Notice of intention shall be given to the company by the municipality, designating the time and place of hearing, and the railroad company shall be heard upon the question of necessity. It is then provided that in case the municipality determines such street to be necessary, it shall make application to the Board of Railroad Commissioners before any further proceedings are taken, to determine whether such street shall pass over or under such railroad, or at grade. Section 62 of the law provides: Any person aggrieved by such decision, or by a decision made pursuant to sections sixty and sixty-one hereof, and who was a party to said proceeding, may within sixty days appeal therefrom to the Appellate Division of the Supreme Court in the department in which such grade crossing is situated, and to the Court of Appeals, in the same manner and with like effect as is provided in the case of appeals from an order of the Supreme Court." In Matter of Delavan Avenue, (167 N. Y. 256), it was held that under sections 61 and 62 of the Railroad Law a determination of a common council that it is necessary to lay out an avenue over the tracks of a railroad company, is appealable to the Appellate Division of the Supreme Court, and that court has power to review such determination. The decision of the common council in the premises being challenged, it would seem clear that it is the duty of this court to examine the facts for the purpose of ascertaining whether or not the determination of the common council was proper and such as should be approved. It may be assumed, as urged by respondent's council, that ordinarily the members of the common council, being upon the ground and having personal knowledge of all the conditions, are better able to judge of the necessity of an extension of the proposed street than this court, but the important [Vol. 66. facts in this case are not in dispute. The situation is disclosed by the maps quite as effectively as by personal inspection, and, therefore, we may review the decision of the common council with less hesitation than if the decision of the common council was reached upon a state of facts peculiarly within its knowledge. The facts are substantially as follows: The tracks of the various railroad companies, the defendants, four in number, extend in the locality in question substantially east and west; are the usual distance apart and are parallel with each other. Nearly 100 trains pass over those tracks daily, and a considerable amount of switching is also done upon them. In fact, it is not disputed that trains are passing almost constantly upon one or the other of the tracks, and often upon all of them at the same time. Nineteen fi street extends substantially north and south, and now ends at Mackenna avenue, north of the railroad tracks, from which point it is proposed to extend it at substantially right angles across the railroad tracks to Buffalo avenue, a distance of about 800 feet. A street known as the Portage road crosses the tracks in question diagonally, at grade, and runs in a northwesterly and southeasterly direction and intersects Buffalo avenue at a point only about 100 feet distant from where Nineteenth street would intersect such avenue if extended as proposed. At Mackenna avenue on the north of the tracks the distance between the Portage road and Nineteenth street is only about 500 feet, and along the railroad companies' right of way only about 400 feet, so that, if Nineteenth street is extended as proposed, a triangle would be formed, the point of which would be but a short distance from the southerly track, and the base would be only about 400 feet, measuring along the northerly line of appellants' right of way. If, instead or extending Nineteenth street across the railroad tracks, it were extended down to appellants' right of way and then to the Portage road, the traveler would only have to go about 400 feet further in going to Buffalo avenue than in proceeding directly across the tracks, following Nineteenth street if extended. It is apparent that if Nineteenth street should be extended across the tracks, with the Portage road located as it is, a most dangerous situation would be created, not only so far as pedestrians are concerned, but also as to the public traveling upon appellants' railroads. It would be almost impossible to guard against accidents, especially where pedestrians were going from Buffalo avenue north, as it would be practically impossible to tell at that point which of the two roads the traveler proposed to take, both starting substantially from the same point. The whole difficulty could be remedied, all the danger incident to another crossing avoided, by extending Nineteenth street to the northerly line of the railroad companies' right of way, and then to the Portage road, thus permitting the traveler to proceed along the Portage road south to Buffalo avenue. It is suggested that travel upon the Portage road is now so great that other facilities for the traveling public are demanded. If so the Portage road should be widened; its facilities for travel increased, so that it will accommodate a greater traffic than at present. This could be done without increasing to any great extent the dangers of such crossing. The situation disclosed by the maps presented, which are made a part of the record, is such as to convince us that to carry Nineteenth street across the railroad tracks, as proposed by the common App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. council, would be to create a veritable death | trap at the place in question. It is said that this court should assume that the railroad commissioners would determine how the crossing should be made, and that if proper they would require an underground or overhead crossing to be made at Nineteenth street. It is apparent that such determination on the part of the railroad commissioners would lessen the danger comparatively little, in case the Portage road is to cross at grade as it now does. The two streets should be united at the point in question and made one, and then a practical way devised of taking them over or under the tracks of the apWhen so united the railroad compellants. missioners would have ample authority to deal with the problem in a manner satisfactory to all. From the affidavits we are not satisfied that it is practicable to carry Nineteenth street over or under the appellants' tracks while the Portage road continues to cross at grade, and if not then the only thing the railroad commissioners could do would be to authorize the crossing at grade of Ninteenth street. While we would ordinarily be disposed to give almost controlling effect to the judgment of the common council in a matter of this kind, we feel that this court would not be justified in approving its determination, when such action might result in taking Nineteenth street over the appellants' tracks at grade, and thus create a situation extremely dangerous to those traveling the highway, as well as to the public These contraveling upon the railways. siderations lead to the conclusion that the determination of the common council in the premises should be reversed. All concurred, Luke H. Joyce, Appellant, v. Henry D. Joyce and Catherine Joyce, Respondents. - Judg ment affirmed, with costs. All concurred, except McLennan, J., dissenting in opinion.Appeal from a judgment of the Supreme Court dismissing the plaintiff's complaint, with costs, entered in the office of the clerk of the county of Erie on the 3d day of May, 1901, upon the decision of the court rendered after a trial at the Erie Special Term. The action was commenced on the 224 day of September, 1900, to recover from the defendant Henry D. Joyce the sum of $1,000, with interest from April 4, 1900; to have said sum declared a lien upon a certain house and lot situate in the city of Buffalo, N. Y., described in the complaint, the premises sold, and out of the proceeds that there be paid to the plaintiff said sum and the expenses of sale, together with the costs of this action, it being alleged that said sum was wrongfully obtained from the plaintiff by said defendant on or about said 4th day of April, 1900, and was expended in payment for said house and lot which he purchased, the deed of which was taken in his name. The defendant by his answer admits receiving said sum of money from the plaintiff, and that he applied the same in payment of the purchase price of said premises, but denies that he obtained it wrongfully, and alleges that it was a gift to him by the plaintiff, who is his father, in consideration of love and affection; that it became his money and property, and that he had the right to expend it in the purchase of said house and lot in the manner in which he did. The defendant Catherine Joyce is the wife of Henry D. Joyce, and is made a party defendant only for the purpose of foreclosing her dower right in the premises. The learned trial court found the facts substantially as alleged by the defendant, and the only question presented by this appeal is whether or not the proof justifies such decision. He was MCLENNAN, J. (dissenting): At the time the FOURTH DEPARTMENT, NOVEMBER TERM, 1901. used or to have any validity in case he re- | covered. There is a controversy between Father Rengel and the plaintiff as to some of the details. The plaintiff stated that Father Rengel brought the checks with him. Father Rengel testified that he found them in the satchel. The plaintiff stated that these were the only checks which were signed by him. Father Rengel testified that he first drew and the plaintiff signed one check for $1,000 payable to his son, one for $1,000 payable to Mrs. Hobern, and one signed in blank to Mrs. Laughlin; and that upon a day subsequent the three checks above referred to were made out and signed. Father Rengel also testified that upon one of the occasions a short will was made out, devising the vacant lots referred to to Mrs. Laughlin. This the plaintiff denied and stated that no will was made or executed by him; but it is considered that these details are of no importance, because the fact remains that concededly it was the understanding on the part of the plaintiff that the checks as finally drawn and signed were only to have validity and force in case the plaintiff died. In case of his recovery he should be free to destroy them, and that no delivery of them should be made until after his death. It appears that immediately after such checks had been drawn by Father Rengel, he informed the defendant's son of the fact that they had been drawn and sigued, and that they were in the plaintiff's satchel. Why he did so does not appear; certainly there is no evidence indicating that he was instructed by the plaintiff to give such information. A few days after this occurrence the son called at the hospital accompanied by a notary public, with deeds prepared which when signed would convey the vacant lots owned by the plaintiff to the defendant, and asked the plaintiff to sign them. The plaintiff, as testified to by him, and it is not contradicted, was raised up in his bed by his son, a pen placed in his hand and he executed the deeds and acknowledged them before the notary public, and thus the lots and all the real estate owned by the plaintiff were transferred to the son. That transaction is not in question here, and it is only referred to for the purpose of showing that apparently without any previous conversation in relation to such transfer, the conveyances were willingly executed by the plaintiff upon the simple request of the son, and because of the circumstance that a notary public was taken to the hospital by the son for the purpose of taking the acknowledgments without, SO far as the evidence discloses, any knowledge on the part of the son that the father would execute such conveyances. This is deemed of some significance, especially in view of the evidence of Father Rengel, which, if true, proves that only a few days before the plaintiff had by will devised the same lots to his daughter, Mrs. Laughlin. The son, Henry D. Joyce, and the daughter, Mrs. Laughlin, testified that a short time after the deeds above referred to had been executed - the length of time does not appear- they went, to the hospital to see their father, and were informed by an attendant that the nurse was engaged with him and that they could not see him at once; that they waited in the reception room for a short time and were finally shown into the room of the plaintiff, where they were alone with him. They both testified, in substance, that the plaintiff at that time told the son that the check for $1,000 had been made in his favor: to get it out of the pocket book in his [Vol. 66. satchel, which the son did; handed it to the plaintiff, and that the plaintiff handed it, back to the son, saying, in substance: "Take the money; buy a house with it; take care of it; use it to good advantage, etc. In substance, that the father then and there made actual delivery of the check to the son; that when he had done so he had a fit of crying, turned his back upon the two children, and they were so overcome with grief that they had to leave the room, the son making sure, however, to take the check with him. Soon after it occurred to the son that the money could not be drawn out of the savings bank without the bank book and he returned to the bedside of his father, reminded him of the fact, and the plaintiff then also presented him with the bank book. The plaintiff absolutely denied that any such transaction ever took place. He stated that he did not know that the check made out to his son had been removed from his sachel until about the time or after he left the hospital; that he found the other two checks made to each of his daughters respectively there, and that he destroyed them; that when he had sufficiently recov ered from his illness he went to his son's house, and was informed that the son had obtained the money upon the check and applied it in payment for the house and let in question. The plaintiff testified that he in no manner authorized such payment or such use of the check; in short, that the check was never delivered to the defendant by him or with his knowledge or consent; that it was his intention, as he was informed by Father Rengel was his right, to destroy such check in case he recovered. The defendant's wife testified that previous to the time when the plaintiff went to the hospital he said to her that he intended to give her husband $1,000, and that he urged them to buy the house in question, promising that if they did such $1,000 would be paid to them by him. The daughter, Mrs. Laughlin, testified that her father had expressed to her the intention to help the son to purchase a home. The plaintiff, in substance, denied all such conversations, and insisted that while he intended his son should have $1,000 and his two daughters the balance of his property at his death, he did not intend that such disposition should be made until that time. The plaintiff, while at the hospital, paid the charges there out of his pension money. It was not quite sufficient for the purpose and he owed his son twenty dollars or thereabouts for that expense, paid by the son, but according to the testimony of both, the father promised to repay the same. After the plaintiff left the hospital and went to the house of his son, he again commenced paying for his board, and was under the necessity, as he thought at least, of so doing. His situation then was that he only had his pension money and the income on $1,000 with which to support himself, and was in poor health and required constant medical attention. As is frequently the case with old people in such circumstances, the home found that his treatment in the of the son was unsatisfactory. A quarrel ensued between him and the son's wife, with the result that they did not speak or at least the plaintiff did not speak to her This continued for a short time when the plaintiff, whether for sufficient reason or not is not important, felt that he could no longer continue to make his home with the defendant, and left to obtain a home elsewhere. He demanded that the house and lot purchased by the son with the $1,000 be conveyed to him; charged the App. Div.] FOURTH DEPARTMENT, NOVEMBER TERM, 1901. wit, son with fraud in procuring the $1,000] stance that with reference to the two checks ་་ |