Elizabeth Decker, plaintiff, sued the Manhattan Railway Company for personal injuries. Judgment for $500 for plaintiff. Defendant appeals. Before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ. Howard Townsend, for appellant. James A. Patrick, for respondent.

VAN BRUNT, P. J. The plaintiff claimed damages for an injury sustained as she was boarding a train of the defendant. She claimed that the train was standing still with the gates open, and, as she attempted to enter, without any warning to her the train started, and threw her down, inflicting severe injuries. The defendant, upon the other hand, claims that the plaintiff attempted to board the train after the gates had been closed, and the train had started. The points suggested upon this appeal are that the verdict is against the weight of evidence, and that the learned court erred in its charge to the jury. It may be true that the plaintiff's story is only supported by her own evidence, and that she is contradicted by numerous witnesses upon the part of the defendant; but this forms no ground for setting aside the verdict, for the reasons stated in the case of Hickinbottom v. Railroad Co., 47 Hun, 639, (recently decided by this court.) The learned justice who presided at this trial, in a remarkably clear and lucid charge, presented the question at issue in such a manner that the jury must have plainly understood the necessities of the plaintiff's case, and the verdict in favor of the plaintiff did not seem to him to be so far against the justice of the case as to require his intervention by granting the motion to set the same aside. If the motion had been granted, such ruling would probably have been sustained, because the granting of such a motion shows that the judge presiding is of the opinion that the verdict has been brought about by improper causes, and is not the result of a simple consideration of the evidence and the rules laid down by the court for its application, and should not, therefore, be allowed to stand. In the case at bar there was a sharp conflict, and unless something had occurred during the trial showing with reasonable certainty that the plaintiff was unworthy of credit, the question was one for the jury. The objection taken to the learned judge's charge is not well founded. His charge was strictly correct, that in the case of steam railroads the utmost care must be used in the carrying of its passengers. It may be true that this rule had no application to the case at bar, because the accident did not happen while the defendant was carrying the plaintiff, as a passenger; but the stating of the rule in correct language in no way prejudiced the defendant. The jury, subsequent to this time, were told over and over again with great distinctness that, if the plaintiff attempted to board this train while the gates were shut, or the train in motion, she could not recover. very last directions that the learned court gave to the jury were that they must find these two questions in favor of the plaintiff by a preponderance of evidence: "First. That the defendant was negligent that it did leave this gate open, and invited her to enter, and, just as she was about to enter, the train started before she had an opportunity to get on board. Secondly. That she was careful that she did nothing that an ordinarily prudent person would not do under like circumstances, or, in other words, that the train had not started when she attempted to get on." Thus were clearly left to the jury, without any chance for misapprehension, the only questions involved. The judgment and order appealed from should be affirmed, with costs.

BARTLETT and DANIELS, JJ., concur.

The

(49 Hun, 64)

WOOD v. BLODGETT et al.

(Supreme Court, General Term, Fifth Department. June 1888.,

1. COSTS-SECURITY FOR-WHEN REQUIRED.

*

The language of Code Civil Proc. N. Y. § 3272, which provides that, "where security for costs is required to be given, the court in which the action is pending, * upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified," to give security for costs, is mandatory; and upon appeal after judgment the court should require plaintiff to give security for costs, on an ex parte application of defendant, upon due proof of the facts entitling defendant to the same.

2. SAME SECURITY FOR ACCRUED COSTS-NOTICE OF MOTION.

The court, in its discretion, after judgment and before appeal, may require security for the payment of costs already accrued; but such order must be upon notice to the plaintiff, and not upon an ex parte application of defendant.

Appeal from special term, Monroe county.

An appeal by the plaintiff from an order of the Monroe special term, denying his motion to vacate an ex parte chamber order granted by a justice of this court requiring the plaintiff, who became a non-resident of the state after the commencement of the action, to file security for costs, as required by Code Civil Proc. N. Y. §§ 3268, 3272, which provide, respectively, that, in certain actions brought in courts of record, defendant may require plaintiff to give security for costs, and that, "where security for costs is required to be given, the court in which the action is pending, * * upon due proof, by affidavit, of the facts, must make an order requiring the plaintiff, within a time specified," to give security for costs. At the time the first order was granted judgment had been entered in the defendant's favor on the report of the referee, dismissing the plaintiff's complaint, with costs taxed at the sum of $196.84, and from which the plaintiff has taken an appeal.

Argued before BARKER, P. J., and HAIGHT, BRADLEY, and DWIGHT, JJ. J. D. Decker, for appellant. Shuart & Sutherland, for respondents.

BARKER, P. J. The defendant, in an action where the plaintiff is a non resident of the state, may require him to give security for costs, as provided in section 3268 of the Code of Civil Procedure. The amount and form of the security is determined by the provisions of section 3272, and the order requiring the security to be given may be granted by the court in which the action is pending, or by a judge thereof, on an ex parte application of the defendant, upon due proof being made of the necessary facts entitling the defendant to the same. The language employed in section 3272 is mandatory, and admits of no other construction. Robertson v. Barnum, 29 Hun, 657; McDonald v. Peet, 7 Civ. Proc. R. 200. That the plaintiff is not entitled to notice when the application is founded upon the provisions of section 3272 is the construction which has been placed upon this section by the special terms and judges at chamber in this department, in which we concur as the correct interpretation. The statute in this respect has changed the general rule of the court requiring all notices brought before the court to be on notice, or an order to show cause, which is but another form of notice. When the application is based upon the provisions of section 3271, notice of motion is required, and the application must be made to the court; and all cases founded on the provisions of that section are expressly excepted from the rule of practice as established by the legislature in section 3272, as was held by this court in Swift v. Wheeler, 27 Wkly. Dig. 512. See, also, Ryan v. Potter, 4 Civ. Proc. R. 80. Each of these sections applies to a different class of cases, and should be construed separately and independently. The plaintiff also contends that the defendant has waived his right to demand security for costs by proceeding to the trial of the action without previously demanding the same. The right of the defendant to demand security for costs of a non-resident plaintiff is an

absolute one, not resting in the discretion of the court. Robertson v. Barnum, 29 Hun, 657; Buckley v. Rubber Co., 3 Civ. Proc. R. 429; Ryan v. Potter, 4 Civ. Proc. R. 80, and note thereto; McDonald v. Peet, 7 Civ. Proc. R. 200. The defendant may waive his right by laches in not moving with promptness, and for that reason the court may, in a proper case, deny the application; but, if the delay is excused, the court has the power, at any time before final judgment, to require the plaintiff to file the security required by the statute as a condition to the further prosecution of the action. An appeal is the commencement of a new proceeding in the action after its determination by the rendition of a final judgment, and is distinct from that which resulted in its recovery. In Gifford v. Rising, 48 Hun, 128, (decided by this court in March, 1888,) it was held that the defendant had the right to demand security for costs on appeal by the plaintiff, after judgment in his favor, although he had omitted to make any previous demand for the filing of security. In the order appealed from the plaintiff was required to give security for the costs which had already accrued, and those that might be awarded against him on appeal; and we think, under the statute, the court, in its discretion, had the power to require security for the payment of the costs which had already accrued, as well as those that might be thereafter awarded against the plaintiff. It was held in Gedney v. Purdy, 47 N. Y. 676, that a court of original jurisdiction may, in its discretion, require a non-resident plaintiff to give security for costs already accrued or entered on the judgment appealed from, as well as those which should thereafter accrue, or limit the security to the costs that should accrue in the future. The defendant might be willing to take the risk of collecting the costs from a non-resident plaintiff without security up to and including the trial, but not as to future costs which might be awarded against him on appeal. In this stage of the proceedings the court may require security for the costs which have already accrued, as well as those which may thereafter accrue; but as so much of the order as required security for costs before final judgment rested in the discretion of the court, under the circumstances of the case, we think the plaintiff was entitled to notice, and that it was irregular to grant the order in that respect upon an ex parte application. The order appealed from is reversed, and the original order modified, so as to require security for costs after judgment only, without costs of this appeal to either party. All concur.

HARRIS et al. v. OAKLEY.

(Supreme Court, General Term, Fifth Department. June, 1888.)

1. DEED-DESCRIPTION-CALL FOR DISTANCES.

The owner of a lot in the city of Rochester, of the area of about one-half acre, rectangular in form, fronting 274 feet on a street, and abutting on the rear for the same distance on a canal, the location of both as well as the other lines being undisputed, conveyed a portion, by description, of "137 feet front and rear, measuring from G. H.'s north line on G. street, and also 137 feet from G. H.'s south line on the canal; being the piece of land occupied as a garden by the grantor." The lot was divided by a fence, one side being used as a garden; the fence starting on G. street midway, but striking the back line at the canal at a point 19% feet from the middle of the lot. The fence was not mentioned in the deed. Held, that the reference to the garden was too indefinite to control the calls for exact distances from known bounds, and the divisional point on the canal should be located 137 feet from G. H.'s

line.

2. SAME-WHEN VOID-LAND IN POSSESSION OF ANOTHER.

3 Rev. St. N. Y. p. 2196, § 147, providing that conveyances of land, in the actual possession of another, claiming under an adverse title at the time of the delivery thereof, shall be absolutely void, does not apply to a case where the both parties claim under a common grantor, and the party in possession, by mistake in the construction of his deed, holds land not embraced therein.

Appeal from circuit court, Monroe county.

v.2N.y.s.no.13-20

Appeal by the plaintiffs from a judgment in an action of ejectment tried at the Monroe circuit, and from an order made at special term denying their motion for a new trial founded on a case and exceptions. The premises are situated in the city of Rochester, and consist of a triangular parcel of land; the base-line of which is also the east line of the premises described in the complaint, and is 19 feet in length, and bounded by a line which formerly was the west bank of the Genesee valley canal,-the hypothenuse extending from the canal to Genesee street, the exact length of which is not mentioned in the description, and cannot be determined from the other papers in the case. Argued before BARKER, P. J., and BRADLEY and DWIGHT, JJ. Horace McQuire, for appellants. W. H. Whiting, for respondent.

BARKER, P. J. At the close of the plaintiffs' proofs their complaint was dismissed on the defendant's motion, and an exception was taken to the ruling. It is stated in the record that the defendant moved for dismissal of the plaintiffs' complaint upon the ground that it appeared from the evidence that, at the time the plaintiffs accepted their deed of the premises in dispute, the defendant was in the actual occupation of the same, claiming title thereto under a deed from one Hulin, who was the common grantor of the parties. On the argument of this appeal the learned counsel for the respondent contended that, from the evidence, it appeared that, at the time the conveyance was made to the plaintiff of the lands in dispute, they were in the actual possession of the defendant, claiming title thereto under a title adverse to that of the plaintiffs' grantor, and for that reason the conveyance was void under the provisions of the champerty act. 3 Rev. St. (7th Ed.) p. 2196, § 147. The grounds stated by the defendant on his motion for a nonsuit, as appears by the record, are essentially different from the one argued before us; for on the trial it was not contended that the defendant was in possession under a claim of title adverse to that of the plaintiffs' grantor; but as the ground stated in the case would not vitiate the plaintiffs' deed, if true, we have concluded to consider the legal proposition, as now presented, as having been made on the trial, and that the case does not correctly state the legal proposition as presented to the trial court. The motion for a new trial was made before the judge who presided at the circuit, and in a memorandum of his decision made on denying the motion, he states, in substance, that the nonsuit was not granted on the sole ground stated in the case, but also upon the further ground that, by the proper construction of the several deeds under which the respective parties claimed the land in dispute, the title thereto was in the defendant. The proposition last stated will be first considered; for, if by a proper construction of the description of the lands contained in the several deeds put in evidence the conveyance to the plaintiff does not embrace the lands in dispute, the judgment cannot be disturbed. The history to the title of the lands in dispute may be briefly stated, so far as the same is important in disposing of this question. In 1847 one Hulin, the common grantor of the parties, became the owner, by a conveyance from Joseph Edgell, of a parcel of land, consisting of about one-half of an acre, which was described in his deed as follows: All that tract or parcel of land situate in the town of Gates, situated and lying on the west side of the Genesee valley canal, and bounded on the west side by the Balentine or Bullshead road, (now Genesee street,) on the north by the China road, (now Brook avenue,) and on the south by the lands of Silas A. Yerkes, (now George Harrison's.) On the 10th day of January, 1883, Hulin conveyed to the defendant and another the north part of the said lot; and in the description, as therein set forth, the entire parcel or lot was first described by adopting the description contained in the deed conveying the said parcel to Hulin, followed by an exception, embracing the south part of the lot, in the words following: "Excepting and reserving one hundred and thirty-seven (137) feet front and rear, measuring from George Harrison's north line on

Genesee street, and also one hundred and thirty-seven feet (137) from George Harrison's north line on the Genesee valley canal; being the piece of land occupied as a garden by said Hulin." Afterwards, and on the 7th day of May, 1883, Hulin sold and conveyed the south part of the lot being the part before mentioned as reserved to himself, to the plaintiffs; and in the deed the entire lot is first described by using and adopting the same description as is contained in the original deed to himself, and then excepting and reserving from the premises described that portion thereof conveyed by the party of the first part to Sylvanus H. Oakley and another by deed dated January 10, 1883, recorded in Liber 361 of Deeds, at page 341, in Monroe county clerk's office. It is thus clearly established that Hulin, the common grantor of the parties, intended to convey to them in severalty the entire lot, and to establish a boundary line between the parties, so that the same should bound the plaintiffs' parcel on the north and the defendant's on the south. It is conceded that the south boundary of the lot is well known and established, and so is the north boundary line of George Harrison's lands mentioned in the several deeds. The true and correct description of the plaintiffs' lands is to be found in the defendant's deed describing the lands excepted from the effect and operation of his deed. The question is thus presented to us in the same form, and is to be determined by the same rules of construction, as if Hulin had conveyed to the plaintiffs the south part of the lot before he conveyed to the defendant the north part thereof, and had described the plaintiffs' parcel therein precisely as the parcel excepted from the general description used in the defendant's deed as there bounded and described. By a reference to a description of the lands conveyed to the defendant, it will be observed that they are first described definitely by courses and distances, being 137 feet front on Genesee street, and 137 feet rear along the canal commencing on George Harrison's north line, the location of which is not disputed; and then a general description is given as follows: "Being the piece of land occupied as a garden by said Hulin." The oral evidence shows that the last or general description is somewhat inconsistent with the first, and more definite, one. If the first is adopted as being the one which correctly expresses the intention of the parties, then the lands in dispute were not embraced in the defendant's deed. The defendant's counsel claims, however, that the parol proofs show that the piece of land occupied as a garden by Hulin was marked and distinguished from the balance of the lot before either of the said conveyances were made by its long and continued use for garden purposes, and by artificial structures, such as fences and buildings, which should control the courses and distances as given in the description, as to the length of the rear line of the land conveyed to the plaintiff along the canal; and seeks to apply, in support of his contention, the well-established rule of law that courses and distances and quantities must yield to natural or artificial monuments or objects; and that courses and distances must be varied so as to conform to the natural or ascertained objects or bounds called for by the grant. Wendell v. People, 8 Wend. 183. The artificial lines and monuments relied upon by the defendant, as constituting the south boundary line of the piece of land used as a garden, consisted at the time of the conveyance to the defendant of a board fence of long standing and partially broken down, and running from Genesee street to the canal on the line claimed by the defendant, and some barns and sheds standing near and north of the same; and that the land on the south side of the fence was used for garden purposes. It will be observed that nowhere in the description, in either of the deeds, is any reference made to the fence, which is the only structure of any kind which stands on the line claimed by the defendant.

We think, on the whole case as it is now presented, the defendant's contention cannot be upheld, as the rule which he invokes is not inflexible, but has some exceptions. It applies with less force to monuments which are artificial than to natural and permanent objects; and, when there is anything in