tion as to the condition of the premises at the time of the original letting should have been disregarded, because clearly against the weight of evidence. It is also apparent that this fundamental error resulted in what would be a very serious practical injustice if this judgment were allowed to stand. The plaintiff testified that, after the defendant's intestate left the premises, he paid the sum of $913.47 for a carpenter's bill to put the premises into good and tenantable condition. He repudiates the idea that any of this money was expended in permanent alterations, and in converting the building from a sugar refinery into a warehouse. But, even on his own theory that this sum covered merely the cost of putting the building into an ordinary tenantable condition for general purposes, it is evident that the defendant is charged with a large amount in excess of what could possibly be his just liability. The referee allowed the carpenter's bill in its entirety, but this covered the whole price for labor and materials necessitated by the rotting of the floors and beams, and by the cutting up and defacement of floors on account of the insertion therein and attachment thereto of machinery and utensils of the refinery, which had been made long before Mr. Freeborn ever saw the premises. The effect of it would be to compel defendant to pay the whole cost of carpenter's work required to restore the building to the condition it was in in 1860, before it had ever been used as a sugar refinery. It is true that the carpenter himself testifies that this bill of his covered only the repairs made necessary by the damage to the building occurring during Mr. Freeborn's tenancy. This, besides being as general in its character as plaintiff's own testimony, is necessarily pure inference. I cannot see that such testimony has any other effect than to show bias on the part of the witness. He was not acquainted with the condition of the building at the time of the making of the lease in 1874, and therefore any opinion upon that subject which he expresses is founded on mere hearsay. As above shown, the entire carpenter's bill paid by the plaintiff has been allowed by the referee without any deduction; and there is no evidence in the case which would enable us, even if we were so disposed, to reduce the judgment. No facts are given tending to show how much of the damage to the floors and beams is attributable to the rotting thereof before Mr. Freeborn's tenancy began, and the defacements of the building by reason of its original fitting up as a sugar refinery, and how much of such damage can be properly held to have been occasioned during Mr. Freeborn's tenancy. This error, which is embodied in the seventh finding of fact of the referee's report, is in itself sufficient to necessitate a new trial. But on such trial it is to be desired that, in addition to requiring succinct and specific evidence of the state of the floors and beams at the beginning of Freeborn's tenancy, similar evidence be insisted upon as to the condition of the walls at the same time. The only testimony on this point on the present trial was that of the plaintiff himself, and consisted of the same vague and general statements which he gave in regard to the floors. At least two of the defendant's witnesses testified that the east wall of the building was, in 1874, warped, out of plumb, and in a dangerous condition. Plaintiff's witnesses testified that in 1879, at the termination of this lease, the building was in such a condition that they were afraid it would be condemned if brought to the notice of the inspector of buildings. There is nothing in the case to show that this dangerous condition of the east wall had been produced since the commencement of Freeborn's tenancy, except the statements of the plaintiff above alluded to. In my judgment, the weight of evidence on this point is almost as clearly against plaintiff's contention as on the other, in regard to the floors and beams. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

ALLEN and BOOKSTAVER, JJ., concur.

(15 Daly, 12)

MUHR v. CITY OF NEW YORK.

(Common Pleas of New York City and County, General Term. June 7, 1888.) NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-WHAT AMOUNTS TO.

In an action against the city of New York for injuries received in falling from the draw of Harlem bridge, through the alleged negligence of defendant, it appeared that at 9 o'clock P. M., while the bridge was well lighted, policemen and gate-keepers at their places, plaintiff, not heeding the warning whistle nor shouts of policemen, walked on the draw before it commenced to turn, and, while it was turning, stepped off at the further end, and fell into the river. The gate at the stationary part of the bridge was closed before the draw turned, but he did not see it, nor know that the draw was turning, nor did he look or listen for signals. He could have safely remained on the draw until it turned back to its place. Plaintiff was well acquainted with the bridge, and knew the draw was liable to turn at any time. Held, that a verdict for defendant was properly directed, as the injury was the result of plaintiff's negligence.1

Appeal from trial term; VAN HOESEN, Judge.

Action by John Muhr against the mayor, etc., of the city of New York, for personal injuries. Verdict directed for defendant, and plaintiff appealed. Argued before LARREMORE, C. J., and ALLEN and BOOKSTAVER, JJ. Louis J. Grant, for appellant. David J. Dean, for respondent.

BOOKSTAVER, J. On the argument it was admitted by the counsel on both sides that there was no conflict of evidence on any material point in the case. On the 15th of January, 1887, at about 9 o'clock in the evening, the plaintiff was crossing the Harlem bridge, going northward, to his home in Mott Haven. While the plaintiff was on the draw, the signal was given to open the bridge, and the gates on the stationary part of the bridge at both ends of the draw were closed, and the draw began to move. The plaintiff was then within 15 or 20 feet of the north end of the draw,-he says, walking fast, the defendants' witnesses say running, to get on the northern end of the bridge towards his home. When he reached the end of the draw, he says he fell from it into the river. Defendants' witnesses say he got on the northerly end of the stationary part of the bridge, and fell from that. He says he did not hear any whistle blown; that he was not paying any attention to it, whether it was or not. He did not see the police officer nor the gate-keeper, although both were there on the stationary part of the bridge. He did not see the lamp, nor whether it was lit or not, because he was going home in a hurry. He saw lights on the bridge, and also many people, but did not notice whether the gates on the north end of the bridge were shut or not. It was proved that the bridge was thoroughly lighted by electric lights, and that the night was clear. He was seen by the policeman stationed on the bridge, and also by the gate-keeper, both of whom were standing on the northern stationary part of the bridge. He was then walking, and 15 feet from the end of the draw. As it commenced to move, he started to run, and the policeman shouted to him to stand back, and also made a pass at him with his club in the endeavor to push him back on the draw, where he would have been safe. Plaintiff has, for some years, lived near the bridge, and daily worked within sight of it, and he says that, "from having seen the bridge open, he knew it was apt to be opened at any moment."

It is as much the duty of the plaintiff to show, either by direct testimony, or by facts and circumstances by which it may be reasonably inferred, that he was himself free from negligence, as to establish the fact that defendants were guilty of negligence. It is true that plaintiffs in negligence actions seldom

As to when it is proper to direct a verdict for defendant in actions for negligence, and the province of the court and jury in determining negligence, see Barnes v. Sowden, (Pa.) 12 Atl. Rep. 804, and note; Harder v. Railroad Co., post, 70, and note. As to what constitutes contributory negligence in the use of defective highways, see Fox v. Village of Fort Edward, 1 N. Y. Supp. 81, and note.

fail to do this, and hence dismissals on this ground are rare; but when a case arises on uncontradicted evidence, requiring the court to dismiss the complaint, or direct a verdict, it is its duty to do so. While the defendants are bound to keep their streets and bridges in such repair that one may pass along them in safety, without being on the constant lookout for dangerous places, yet if one, in consequence of not looking, steps over the edge of the sidewalk, and falls or is injured, he cannot recover. According to plaintiff's own testimony, he walked on the draw of the Harlem bridge, which he knew was liable to be opened at any moment, without looking around to see whether it was about to be opened or not. He paid no attention to the warning whistle, nor to the shouts of the policeman. Although the bridge was well lighted, and the night was not dark, he failed to see that the gates were closed on the end of the bridge he was approaching. He also failed to observe that the draw was in motion. In fact, according to his testimony, he exercised no caution whatever in crossing what he knew was a place where some care was needed. If, on the other hand, we assume the testimony offered by the defendants to be the true version of the occurrence, then he was equally guilty of negligence in attempting to get off the draw while it was in motion, in disregard of the warning of the policeman. In either case he cannot recover.

Nor do we think there was any negligence proven on the part of the defendants. The only fact which could in any way be construed into negligence on their part is that the gates at the southerly end of the bridge were not closed when plaintiff went upon the draw. It does not appear how long he had been upon it, nor how long it would take him to cross it. At any rate, the fact of his being upon the draw when it was opened was not the proximate cause of the injury. Had he chosen, he could have remained on it until it was closed again, with perfect safety. This he did not choose to do, but, because he was in a hurry to get home, he attempted to get on the northerly end of the bridge while the draw was in motion, taking on himself the peril of the act, or else walked off in sheer heedlessness. The defendants having placed gates on both ends of the stationary part of the bridge, and persons in charge to close them when the draw was about to be opened, and these persons having apparently done that duty in this case, it cannot be possible that the defendants were guilty of negligence in not having put up gates at the ends of the draw, to prevent reckless persons from walking off. The judgment should be affirmed, with costs.

(49 Hun, 254)

MCPHERSON v. SMITH.

(Supreme Court, General Term, First Department. June 19, 1888.) SPECIFIC PERFORMANCE-WHEN ENFORCED-SUFFICIENCY OF VENDOR'S TITLE.

In an action by vendor against vendee for specific performance, plaintiff's title was derived through devise to executors and trustees, with power to sell either publicly or privately. All the estate was bequeathed in trust to be divided among testator's children and their heirs, with the clause, "and if either of my daughters shall die without lawful issue, or leaving issue which shall not attain the age of 21 years, and without issue," then to be divided among his other children. The testator died in 1817, and in 1829, all the daughters having lawful issue, minors, the trus tees, through a third person, conveyed one-third of the real estate to each daughter and her husband, there being no sale, but the transaction appearing from the deeds to be a shift to free the land of the trust, and bar the contingent remainder. It did not appear but that one of the daughters might have had issue dying under the age of 21 leaving issue to take as remainder-man. Held that, the title being open to question, performance should not be enforced.1

Case submitted upon agreed statement of facts.

'A bill to compel the specific performance of a contract is an application to the sound discretion of the court, and such performance will not be decreed when, for any reason, it would be inequitable. Blake v. Flaharty, (N. J.) 14 Atl. Rep. 128, and note; Sullivan v. Jennings, (N. J.) Id. 104; Appeal of Bank, (Pa.) 3 Atl. Rep. 823, and note.

On June 16, 1887, the plaintiff, John R. McPherson, by written contract, sold to defendant, Du Bois Smith, certain real estate in New York city. Becoming doubtful as to McPherson's title, Smith refused to receive the deed and pay the purchase money. By agreement, the questions in difference were submitted to the general term for decision.

Argued before VAN BRUNT, P. J., and BARTLETT and MACOMBER, JJ. Marsh, Wilson & Wallis, for plaintiff. Fred W. Hinrichs, for defendant.

MACOMBER, J. The defendant refused to take the deed of the two lots sold to him by the plaintiff on the ground that the title was not marketable. It appears from the submission papers that the plaintiff derived his title by several mesne conveyances, as to one of said lots, from Jeanet Clarke, a widow, one of the three daughters of James R. Smith. The plaintiff's title to the other lot was derived by several intermediate conveyances from Matthew St. Claire Clarke and Anna R. Clarke, his wife; the latter being another of the daughters of James R. Smith, and Matthew St. Claire Clarke being a son-inlaw, and the executor and trustee under the will and codicil, of James R. Smith. The testator left another daughter, Elizabeth C., who, after the testator's death, married one Joseph Duncan. James R. Smith, the testator, died in 1817, leaving a will, and codicil thereto, by which he appointed four executors and trustees, of whom said son-in-law Matthew St. Claire Clarke was one, and James Boorman was another. These trustees, or their survivor or survivors, were clothed by the will with power to sell the testator's real estate, in their discretion, at public or private sale; but they held certain portions of the estate, of which the two lots mentioned above formed a part, in trust for the benefit of the said three daughters during life, with remainder over The twelfth paragraph of the will, among other things, provided as follows: "And if either of my daughters shall die without lawful issue, or leaving issue which shall not attain the age of twenty-one years, and without issue, then the share or portion of my said daughter, after the death of her husband, or if there be no husband living at her death, shall go and be divided among my other children, share and share alike, and to their issue in case of the death of either of them, share and share alike, such issue to take the portion that would have belonged to his, her, or their father or mother." At the time of the conveyances to the three daughters hereinafter mentioned,. namely, December 26, 1829, they each had children living, but none of them had attained the age of 21 years. On the last-mentioned day the two surviving trustees under the will, viz., the son-in-law Matthew St. Claire Clarke and James Boorman, conveyed the real estate of the testator in the city of New York, including these two lots in question, to Robert Dyson, in which deed the widow and the son, James C. R. Smith, and wife, and Anna R. Clarke, the wife of the trustee of that name, and Elizabeth C. Duncan and her husband, Joseph Duncan, joined, for the expressed consideration of $64,710.59. On the same day three deeds were executed by Dyson: one to the widow, Jeanet Clarke, covering one of the lots in question, for the expressed consideration of $21,573.13; the second, to said trustee Matthew St. Claire Clarke and his wife, Anna, conveying another portion of the property, including the other lot in question, for the expressed consideration of $21,614.56; the third, to Joseph Duncan and his wife, Elizabeth, for the expressed consideration of $21,522.90,-thus conveying to the life-tenants and their husbands all the real estate which had been conveyed to Dyson by the surviving trustees. It appears, therefore, that Dyson was a mere conduit to pass the title out from under the trusts imposed by the will, so far as it relates to the execution of it in behalf of the heirs of the three daughters, and to place it in the hands of the life-tenants. The aggregate sum of the three amounts recited in the conveyances as having been paid to Dyson is exactly equal to the amount recited as paid by Dyson in the deed conveying the property to him.

The four deeds were placed on record at the same time, about a year after their date.

In this transaction the rights of the grandchildren seem not to have entered into the contemplation of the parties. Each of the children of the testator had children of his or her own, and there was at least a possibility, if not a probability, that these, too, under the will, would ultimately become interested in their grandfather's estate. If any of them attained their majority, their interest would become absolute. When the property was conveyed to the daughters and their husbands, their children were all minors, except that one daughter had not then been married. As it is pointed out in the brief submitted by the counsel for the defendant, it is not improbable that she might have a child years after this partition of her father's estate. Such child might in time have issue just before attaining the age of 21 years. Under the testator's will, such issue would be entitled to take as remainder-man. Less than 59 years have elapsed since this voluntary partition. It is not a violent supposition that one of the testator's daughters should have given birth to a child in 1839; that such daughter should have died in childbirth in 1859, leaving a child; and that such grandchild of the testator, having reached his majority in 1880, should have a cause of action as remainder-man against the very lots in question. The purchaser upon a judicial sale has the right to acquire a good and marketable title. A title open to a reasonable doubt is not a marketable one; and the court cannot make it one by passing upon an objection depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested. Fleming v. Burnham, 100 N. Y. 1, 2 N. E. Rep. 905; Jordan v. Poillon, 77 N. Y. 518. Such would be the serious objection to the title of the lands in question, except for those provisions of the will which permitted the trustees to sell, either at public or private sale, and thus convey a good title to the premises. This power of sale would be a complete answer to the apparent claim made by the defendant, provided the record of the title in the plaintiff was of such a character as not necessarily to raise a legal doubt of its validity. It is true, as the Revised Statutes provide, (7th Ed. p. 2183, § 66:) "No person who shall actually and in good faith pay a sum of money to a trustee, which the trustee, as such, is authorized to receive, shall be responsible for the proper application of such money according to the trust, nor shall any right or title derived by him from such trustee, in consideration of such payment, be impeached or called in question in consequence of any misapplication by the trustees of the moneys paid." This statute was a departure from the common-law rule, but it did not go into effect until a few days after the date of the conveyances above mentioned; and whether or not the rights of the parties are to be determined by the rule under the statute or the rule at common law it may not be profitable to consider. But whether under the one or the other, the record presents a case, as it seems to me, where the purchaser is directly notified that the transaction between the trustees and the life-tenants was not a sale made in good faith in pursuance of the terms of the will. From the record before us a legal presumption would arise that Dyson was not a purchaser except for the mere purpose of acting as the agent of the trustees and of the life-tenants to divert the property from the purposes designed by the testator. What the deceased intended to do in case of a sale was that the property should be actually sold, and the moneys realized therefrom held under the obligations imposed upon the trustees by the terms of the will. This, to my mind, appears as conclusively as if oral evidence had actually been given to the effect that such was the fraudulent purpose of the parties to the original conveyances, and that the subsequent grantee had been informed of that fact by word of mouth. This conclusion receives strong corroboration in the fact that, upon the face of the deed from the trustees to Dyson, one of them, Mr. Boorman, while assisting in the diversion of the