or permission to change the grade or fill up any portion of the streets, nor do the public acquire any additional easement in either of the streets in front of the plaintiff's property. It is well settled, and no longer admits of any doubt or discussion, that where a municipal corporation, under a rightful authority contained in its charter, grades or elevates a street, an action will not lie, by an adjoining owner whose lands are not actually taken, for consequential damages to his premises, there being no want of care and skill in the execution of the work, and no provision is made in the charter for the payment of damages of that character. Radcliff's Ex'rs v. Mayor, 4 N. Y. 195; Coster v. Mayor, 43 N. Y. 399. We are unable to find any provision in the charter allowing abutters damages for injury to their property consequent upon change of grade in front of their premises, nor was it suggested on the argument that any such provision existed.

The act of the city, in closing up Litchfield street at the intersection, involves the same legal question, and no other. If the plaintiff has sustained any damages by reason of the action of the city authorities, they were consequential in their nature, and too remote to be the foundation of an action. The law presumes that the owner received proper indemnity and compensation from the public when the street was originally laid out or dedicated to the public use. The inconvenience suffered by the plaintiff is experienced by him in common with all the other members of the community. Coster v. Mayor, supra Smith v. Boston, 7 Cush. 254. No complaint is made that the closing of King street by the temporary fence was unnecessary while the grade of the street was being lowered, or that it was continued for an unnecessary length of time. The referee was not asked to pass upon these questions, and there is no evidence tending to show that it was not a proper precaution to be observed with a view of protecting the public. It was doubtless technical trespass to nail the boards on the fence to the plaintiff's ottice, which stood upon his lot, but the action was not brought to recover those damages, nor was the claim for damages placed upon that ground.

It is objected that the law under which the defendant justifies its action is unconstitutional, and repugnant to the provision that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. The act is entitled “An act to provide for the relief of the city of Rochester, and the New York Central & Hudson River Railroad Company in said city." All the provisions in the act relate to the elevation of the defendant's tracks above the grades of the streets in that city, and to the closing and widening and changing the grade of the same when necessary to secure that object, and to the manner of paying the costs and expenses of the same. This constitutes a single subject. All these provisions are for the relief of the two corporations named in the act; and are limited to the benefits to be derived by the public, and those corporations, within the corporate limits of the city of Rochester. The whole scheme of the act is to accomplish one result. So far as these corporations derived any power from the act to contract with each other, it is limited to the same object and purpose. The subject of legislation is sufficiently expressed so as to escape the criticism made by the appellant. The power directly conferred by the act is bestowed on the city of Rochester, and limited to such matters and subjects as are generally given to municipal corporations in this state. In effect, it is nothing more than an amendment of the city charter. Where a legislative enactment in substance and effect relates to the powers, duties, obligations, and interests of an existing municipal corporation, and is limited to such matters, then the subject is frequently expressed in a title which states the enactment is for the relief of such municipality, without mention of the particular things which it is authorized to do and perform. It was held in one case, where the title read, namely, "An act to amend the several acts in relation to the city of Rochester," that the words expressed a subject which

was comprehensive enough to embrace all the details of the city charter and government. People v. Briggs, 50 N. Y. 553. In another case the title adopted was in these words: An act for the relief of James Ley & Son;" and it was held to be a suficient statement of the subject embraced in the body of the act, which authorized the levy of a tax by a municipal corporation to pay the persons named in title a sum of money in addition to the contract price stipulated to be paid to them by the city for work and labor. Brewster v. City of Syracuse, 19 N. Y. 116. In that case the action was by a tax-payer to restrain proceedings on the part of the common council to carry out the terms of the act. The municipality, by its charter, was prohibited from paying any compensation above the contract price, and could do so only by virtue of the act, the constitutionality of which was brought in question by the taxpayer, and it was held that the law was in compliance with the requirements of the constitution. See, also, the opinion of the court of appeals in Re Mayor, etc., and reported in 2 N. E. Rep. 642.

By applying to the plaintiff's case well-settled rules of law, we are required to hold that he failed to make out a case for relief by an award of damages for the injuries which he has suffered by the action of the board of commissioners in the management of matters committed to their judgment and supervision by competent authority. Judgment affirmed, with costs. All concur.

EGERER . NEW YORK CENT. & H. R. R. Co.

(Supreme Court, General Term, Fifth Department. June, 1888.) EASEMENTS-OBSTRUCTION OF LIGHT BY RAILROAD-TRACK ON DISCONTINUED Street. An action will not lie, by the owner of property adjacent to a street, against a railroad company for deprivation of light and air, occasioned by elevating its tracks so as to obstruct the street; such elevation being in pursuance of an act of the legislature, and the city commissioners having discontinued that portion of the street under authority given them by said act.

On exceptions from circuit court.

Action by Frederika Egerer against the New York Central & Hudson River Railroad Company for damages to real estate in the city of Rochester. At the circuit a verdict was directed for defendant, and upon a case and exceptions a motion was made by plaintiff to set aside the verdict.

Thomas Raines, for plaintiff. E. Harris, for defendant.

DWIGHT, J. The action was for damages caused by the obstruction of a street adjacent to the plaintiff's dwelling-house, interfering, as she alleges, with her easements of light, air, and access. The acts of the defendant complained of were done in the work of elevating the tracks of its road througn the city of Rochester, under the provisions of chapter 147 of the Laws of 1880, and a contract with the city made pursuant thereto. This court has already considered the effects of that legislation, and action of the city authorities, in the case of Wilson v. Railroad Co., ante, 65, (decided in January, 1886,) and, as we now think, disposed of all the questions which properly arise in this case. The effect of the action of the commissioners on the part of the city was, among other things, to discontinue that portion of North avenue, at and near its junction with North street, over which the four tracks of the defendant's road passed at grade, and, by diverting its course for a short distance, form a new junction with North street near the overhead crossing of the latter. All the structures of the defendant complained of in this case are on the land from which the street was thus removed, and of which the fee was in the defendant, or on land of the defendant which was always outside the limits of the street. The diagrams in evidence show that the plaintiff still has all the access to the street which she ever had, except such as she assumed to

make use of across the land of the defendant, which was not included within the limits of the street.

In respect to interference with easements of air and light, the case is not within the doctrine of the New York Elevated Railroad Cases, (Story v. Railroad Co., 90 N. Y. 122; Lahr v. Railroad Co., 104 N. Y. 268, 10 N. E. Rep. 528,) because in those cases the interference was with the enjoyment of an easement in an existing street, by a party whose property abutted thereon. Here the injury, if any, results from a discontinuance of the street itself by action of the city authorities, and a consequent deprivation of the easements formerly enjoyed therein. It is not contended that the plaintiff could acquire such easements by prescription over the lands of the defendant, an adjoining proprietor. The discontinuance of the street was within the authority expressly given to the commissioners of the city by the act of 1880, and the plaintiff had no cause of action against the defendant for damages caused thereby. In conformity with the principles declared in the case of Wilson v. Railroad Co., supra, we must hold the verdict properly directed in this case, and deny the plaintiff's motion for a new trial.

Motion for a new trial denied, and judgment ordered for the defendant on the verdict.

All concur.

HARDER. ROME, W. & O. R. Co.

(Supreme Court, General Term, Third Department. July 2, 1888.)

RAILROAD COMPANIES-INJURIES TO PERSONS ON TRACK-CONTRIBUTORY NEgligence. Plaintiff was struck by an engine while crossing defendant's track. He had been drinking to some extent, and had started to the station, and, leaving the street, went by a shorter route across two tracks and an open space between, where persons frequently crossed, walking slowly, without looking for the engine, which had just gone by on one track, and was returning on another, at a rate not exceeding 10 miles an hour. The plaintiff did not see nor hear the engine, nor did the engineer see him, though persons present tried to attract the attention of both. Some witnesses heard the bell ring, and others did not. There was nothing to prevent plaintiff from seeing the engine for 130 feet before he stepped on the track. Held, that the negligence of plaintiff contributed to his injury, and the court properly granted a nonsuit.1

Appeal from circuit court, St. Lawrence county.

Action by Benjamin Harder against the Rome, Watertown & Ogdensburgh Railroad Company for personal injuries. The plaintiff attempted to walk across the defendant's track, and was struck by its engine, and injured. This action was brought to recover damages for the injury; the complaint charging the defendant with negligence. The injury was sustained at Ogdensburgh. Two tracks of the defendant's road so intersect Commerce street, in the city of Ogdensburgh, as to form, at the south-easterly angle of intersection, a triangular lot of land. This lot fronts upon Commerce street upon the west, and the track forms the hypotenuse of the triangle, extending, with a slightly inward curve, beyond the entire lot. The point of the gore or triangle is used for a small garden. The Utica House fronts on Commerce street. Its northerly side is at right angles to the street, and extends easterly until the rear corner of the main building is within seven feet and nine inches of the nearest rail of defendant's track. A kitchen extension of the hotel, less than half the width of the hotel, extends, in line with its south side, still further westerly twenty-two feet, until its rear corner is within four feet and nine

1As to plaintiff's contributory negligence in actions against railroad companies for injuries received on the track, see the note to Railroad Co. v. Colman's Adm'r, (Ky.) 8 S. W. Rep. 875; Railroad Co. v. Womack, (Ala.) 4 South. Rep. 618.

As to the province of the court and jury in determining negligence, see Barnes v. Sowden, (Pa.) 12 Atl. Rep. 804, and note; City of Birmingham v. McCrary, (Ala.) 4 South. Rep. 630.

inches of the same rail. There is a rear side-door of the hotel opening towards this track of the railroad. From this door to within four feet five inches of the rail is a platform. This extends along this rail for about sixteen feet, and is between it and the house, and belongs to the house. Directly north of this platform, across the two tracks, and an open space beyond, is the defendant's passenger station. It is a common practice for foot passengers to walk across the tracks, and this open space between the hotel and the station. Passenger trains sometimes stop opposite this platform, and passengers get on and off the cars there. Commerce street extends along in front of the station. On June 27, 1887, the plaintiff, at about 4:15 o'clock P. M., intending to take the 4:30 P. M. train, then standing upon another track upon the opposite side of the station, entered the Utica House from Commerce street, walked through it, and out of the rear door, upon the platform. He had been drinking to some extent. He first stepped from the platform upon the nearest track, when he observed an engine upon one of the tracks near Commerce street. He stepped back upon the platform. The engine moved past him upon the outer track to a point beyond a switch, and, as the plaintiff says, behind the kitchen extension. The switch was about 86 feet beyond him, and it is probable the engine went several feet beyond it. The switch was moved, and the engine started to return upon the track nearest the platform. Standing upon the edge of the platform, one could see 130 feet, measuring to a point between the two nearest rails. Standing within a foot of the rail, one could see 190 feet, measuring to a like point. Standing on the middle of the platform, that is, half way between the door and its outer edge, one could see only 45 feet. The plaintiff stepped upon the nearest rail when the engine was within 40 feet of him. Witnesses on the part of the plaintiff did not remember hearing the bell rung. Witnesses on the part of the defendant testify that they did hear it. The rate of speed of the engine when it struck the plaintiff is variously estimated from two to ten miles an hour. The engineer in charge of the engine did not see the plaintiff. Other persons did see, and shouted to him, and to the engineer, but did not attract the attention of either. The court granted a nonsuit, and plaintiff appealed. Argued before LEARNED, P. J., and LANDON and INGALLS, JJ. J. W. Stone, for appellant. E. B. Wynn, for respondent.

LANDON, J. From the facts as given above, we think the plaintiff's negligence contributed to his injury, and the nonsuit was proper. He undertook to cross the tracks where he had, at best, but a mere license to cross. From the curvature in the tracks, and intervening erections, his range of vision in a south-easterly direction was limited, and therefore a vigilance corresponding to the obvious danger was required. It may be said that this situation imposed greater and more active vigilance upon the defendant. This may be conceded without in the least exempting the plaintiff from like vigilance. The way was open to him to the station by Commerce street. The statute law, and, possibly, the ordinances of the city, had, with respect to that and other streets, imposed certain definite duties and restrictions as safeguards to the plaintiff and others. He voluntarily left the street, which was protected by these definite and specified safeguards, and took a course protected only by common-law regulations. These are vaguely defined as enjoining upon the defendant the duty to use, in respect to persons crossing the tracks, reasonable care in the movement of its trains. Barry's Case, 92 N. Y. 289; Bryne's Case, 104 N. Y. 362, 10 N. E. Rep. 539. Possibly the defendant did not use that care. But it is plain that the plaintiff, if he had been vigilant, as he ought to have been, could have seen this approaching engine in ample time to avoid it. With his face away from the engine, he slowly moved upon and across the track. Probably his senses were less acute in consequence of the liquor he had been drinking. Probably, as the engine had just passed in one

direction, he did not think it would return in the other. He did not see the engine at all before it struck him. He did not hear the warnings that others cried out to him. Plainly, whatever the cause, his vigilance was dormant, and not active. The judgment should be affirmed, with costs.

LEARNED, P. J., and INGALLS, J., concur.

BUTLER v. GLENS FALLS, S. H. & FT. E. ST. R. Co.

(Supreme Court, General Term, Third Department. July 2, 1888.) TRIAL-VERdict-SufficIENCY OF EVIDENCE.

In an action against a street-car company for injuries sustained in attempting to board one of defendant's cars, plaintiff's testimony tended to show that, as the car approached with the horses in a trot, he signaled twice to stop; that, when near to him, they had slowed up to a walk, and as he placed his foot on the step, by direction of the conductor, the horses were suddenly started, causing a jerk, thereby throwing plaintiff to the ground, injuring his foot. Defendant's testimony was directly contradictory; the conductor saying that he warned plaintiff against attempting to board the car at that place. The questions of defendant's negligence and plaintiff's contributory negligence were referred to the jury under proper instructions, and they found for plaintiff. Held, that the verdict will not be set aside as against the weight of the evidence.1

Action by William J. Butler against the Glens Falls, Sandy Hill & Fort Edward Street Railroad Company, for injuries sustained in attempting to board defendant company's street car. Judgment for plaintiff. Defendant appeals.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
M. A. Sheldon, for appellant. A. V. Pratt, for respondent.

INGALLS, J. The trial of this action developed a fair question of fact which involved the merits of the controversy, and the evidence shows a sharp conflict in regard to the material features of the case. And the evidence does not preponderate so decidedly in favor of the defendant as to call for a reversal of the judgment upon that ground. The testimony of the plaintiff is to the effect that, as the car approached him, he made two signals indicating his desire to enter the car as a passenger, he being at the time in full view of the conductor, and of the other person who he states was driving at the time, and could have been seen if either had been attentive; that, after the second signal, the horses commenced to slacken their gait from a trot, and, as they approached the crossing where the plaintiff was standing, came to a very slow walk, and nearly stopped; that he attempted to enter the car by seizing the rail; and, placing one foot upon the step, and while in the act of raising the other foot, the conductor called out to the boy who held the lines, "Don't stop there!" when the horses were suddenly urged forward by a slap of the lines, which caused a sudden jerk, which had the effect to throw the plaintiff from the car to the ground, and caused the injury to his foot of which he complains. Maren S. Richards, who was a passenger upon the car, testified: "Was riding on this car at the time and place of the accident. I should think the horses were traveling on a walk. I have no doubt about it. Naturally, it would be a slow walk. I could not tell whether the horses had been trotting just previous to that or not. I was busy talking to another man. At this crossing I felt a jar. I spoke to Mr. Bardin, I think we have struck a stone.' horses were under slow motion at that time. Immediately after that they stopped." Gardner Cutting, another witness, testified: "I noticed Mr. Butler before the car came along. He stopped a moment or two at the corner of the church. Then he crossed the walk. I should judge he went about there.

The

'As to the province of the court and the jury in determining questions of negligence, see Muhr v. City of New York, ante, 59, and note.