and 140 New York State Reporter

CANEPI, Respondent, v. GROSS, Appellant. | partmen October 15, 1907.) Action by the (Supreme Court, Appellate Division, Second De- Charles H. Brown Paint Company against partment. October 18, 1907.) Action by Jos- Samuel Cohn and another. eph Canepi, Jr., against Fred E. Gross. No opinion. Judgment of the City Court of Yonkers affirmed with costs.

$10 costs and disbursements, on authority of Acardo v. New York Contracting & Trucking Co., 116 App. Div. 793, 102 N. Y. Supp. 7.

CLOUGH, Appellant, v. FOX et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 9, 1907.) Action by Aaron Clough against Walter Fox and others. No opinion. Judgment and order affirmed, with costs.

COHEN v. SMALL. (Supreme Court, Appellate Division, First Department. October 18, 1907.) Action by J. Quintus Cohen against Charles T. Small. No opinion. Motion granted. Order filed.

CONRAD v. CONRAD. (Supreme Court, Appellate Division, First Department. November 15, 1907.) Action by Reine Conrad against George J. Conrad. No opinion. Motion denied, with $10 costs. Settle order on notice.

COSGROVE, Respondent, V. MURPHY CONST. CO., Appellant. (Supreme Court, Appellate Division, Second Department, October 4, 1907.) Action by Edward J. Cosgrove, as administrator, etc., of Thomas Cosgrove, deceased, against the Murphy Construction Company. No opinion, Judgment and order unanimously affirmed, with costs.

lant.

COHEN v. SMALL. (Supreme Court, ApCOUGHLIN, Respondent, v. SCOTT. Annelpellate Division, First Department. November (Supreme Court, Appellate Division, 15, 1907.) Action by J. Quintus Cohen against tion by James J. Coughlin against Jacob D. Fourth Department. October 19, 1907.) Ac Charles T. Small. No opinion. Motion denied. Settle order on notice. Scott. No opinion. Judgment and order affirmed, with costs.

In re COLLYER (two cases). (Supreme Court, Appellate Division, Second Department. October 11, 1907.) In the matter of the ac counting of Charles S. Collyer, as administrator of Elizabeth Collyer, deceased. In the matter of Henry M. Collyer, etc., that Fanny Collyer, as executrix, pay money into court. No opinion. Motion for reargument granted, and case set down for hearing on Wednesday, October 16, 1907. See 105 N. Y. Supp. 1111.

COLUMBUS TRUST CO., Appellant, v. MOSHIER, Respondent. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Action by the Columbus Trust Company against George Moshier.

PER CURIAM. Judgment, in so far as appealed from, affirmed, with costs, on the opinion of Mr. Justice Burr at Special Term, 100 N. Y. Supp. 1066.

V.

Ac

COWARD, Respondent, v. VINES et al., Appellants. (Supreme Court, Appellate Division, November 13, 1907.) Third Department. tion by Agnes L. Coward, as administratrix, against George W. Vines and others. No opinion. Judgment modified as to the defendant Rose Vines, by excepting her inchoate dower right and providing in the judgment that property be sold subject thereto, without costs, and as to the other defendants affirmed, with costs.

CRAMMOND, Respondent, v. INTERNATIONAL PAPER CO., Appellant. (Supreme Court, Appellate Division, Third Department. September 26, 1907.) Action by Earle D. Crammond, an infant, by Elizabeth B. Orr, his guardian ad litem, against the International Paper Company. No opinion. Motion denied.

CRAMSEY, Appellant, v. STERLING, Respondent. (Supreme Court, Appellate Division, First Department. October 25, 1907.) Action by Edward Cramsey against Charles A. Sterling. R. F. Greacen,

COMMISSIONER OF PUBLIC CHARITIES OF NEW YORK, Respondent, SCHMIDT, Appellant. L. E. Warren, for appellant. (Supreme Court, Appellate Division, Second Department. October 23, 1907.) Action by the commissioner of public charities of New York, appointed for the boroughs of Brooklyn and Queens, on complaint of Florence Wallace, against Arno Schmidt. No opinion. Judgment of conviction affirmed by default.

for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

CONNOR, Appellant, v. ORR et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 19, 1907.) Action by Cora Stryker Connor against Robert B. Orr and others.

CREEDON, Respondent, v. KNIGHTS OF MACCABEES OF THE WORLD, Appellant. (Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) Action by Catherine Creedon against the Knights of Maccabees of the World.

PER CURIAM. Judgment and order denying motion for new trial affirmed, with costs. Order granting additional allowance reversed.

MCLENNAN, P. J., dissents. SPRING, J., not sitting.

PER CURIAM. Order amended, so as to direct that there be stricken from the third defense the words, "realleges all the allegations CREEDON, Respondent, v. METROPOLIhereinbefore set forth in the first and second TAN LIFE INS. CO., Appellant. (Supreme defenses to the complaint herein, the same as Court, Appellate Division, Fourth Department. though fully set forth herein," and, as So October 2, 1907.) Action by Catherine Creedon amended, affirmed, without costs, with leave against the Metropolitan Life Insurance Comto plaintiff to make a separate motion for bill pany. No opinion. Order affirmed, with $10 of particulars. costs and disbursements, on the ground that the defendant was guilty of laches.

MCLENNAN, P. J., not sitting.

106 N.Y.S.-71

and 140 New York State Reporter

In re CRITTENDEN. (Supreme Court, Ap-| Blanche E. Davis against George S. Davis. pellate Division, Second Department. October No opinion. Order reversed, without costs, and 4, 1907.) In the matter of the application of motion denied, without costs, with leave to Joel Parker Crittenden for admission to the bar. renew. No opinion. Application granted.

No

for a new trial, are reversed, and a new trial| Appellate Division, Fourth Department. ordered, with costs to the defendant Rudolph vember 13, 1907.) Action by Mary M. Doty against the plaintiff to abide the event, upon against the Syracuse & Suburban Railroad the authority of Bamberg v. International Rail- Company. way Company et al., 105 N. Y. Supp. 621.

DOLPHIN, Respondent, v. SWANSON, pellant. (Supreme Court, Appellate Division, Fourth Department. October 19, 1907.) Action by William M. Dolphin against Charles Swanson. No opinion. Judgment and order affirmed, with costs.

PER CURIAM. Judgment and order of County Court and judgment and order of MuAp-nicipal Court of the city of Syracuse reversed, and a new trial ordered in the Municipal Court, with costs in all courts to the appellant to abide the event. New trial to be had on Tuesday, the 3d day of December, 1907, at 10 o'clock in the forenoon. Held, that the verdict was contrary to and against the weight of the evidence. SPRING and KRUSE, JJ., dissent.

DONALDSON, Respondent, v. RUTLAND R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) Action by Andrew Donaldson against the Rutland Railroad Company. No opinion. Judgment and order unanimously affirmed, with

costs.

DONLON CONTRACTING CO., Respondent, v. CITY OF NEW YORK, Appellant (Actions 1, 2, and 3). (Supreme Court, Appellate Division, Second Department. October 15, 1907.) Actions by the Donlon Contracting Company against the city of New York. No opinion. Motions to dismiss appeals granted, with

out costs.

DONNELLY, Appellant, v. ROGERS, Respondent. (Supreme Court, Appellate Division, First Department. October 25, 1907.) Action by William F. Donnelly against Clarence De W. Rogers. F. Bien, for appellant. C. D. Rogers, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

DONOVAN et al., Respondents, v. AUGER et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) Action by Dennis Donovan and another against Armand G. Auger and another. No opinion. Judgment and order affirmed, with

costs.

DORAN, Appellant, v. GREAT ATLANTIC & PACIFIC TEA CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) Action by Catherine A. Doran against the Great Atlantic & Pacific Tea Company. No opinion. Judgment of the Municipal Court affirmed, with costs.

DORAN, Appellant, v. GREAT ATLANTIC & PACIFIC TEA CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 11, 1907.) Action by Charles F. Doran against the Great Atlantic & Pacific Tea Company. No opinion. Judgment of the Municipal Court affirmed, with costs.

DORR v. LAMBERT. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by James F. Dorr against John W. Lambert. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed.

DOTY, Respondent, v. SYRACUSE & SUBURBAN R. CO., Appellant. (Supreme Court,

and 140 New York State Reporter

PER CURIAM. Judgment and order affirmed, with costs.

MCLENNAN, P. J., and WILLIAMS, J.,

dissent.

DURYEA v. KAISER et al. (Supreme Court, Appellate Division, First Department. November 15, 1907.) Action by William F. Duryea against John Kaiser and another. No opinion. Motion granted, with $10 costs. Order filed.

PER CURIAM. Judgment and order affirmed, with costs.

if from his position in the wagon he could not have seen the train if he had looked, his failure to look would not be contributory negligence. This left out of view that if he could not see from the wagon the jury might have found it his duty to get down and walk ahead and look. But no exception was taken to this part of the charge. After the main charge was concluded. however, the matter was brought up, and the learned trial judge charged in succession three requests of counsel for the defendant, viz.: (1) That although the deceased was not driving he EAGER v. LEHIGH & H. R. RY. CO. (Su- fort to see that the crossing was safe"; (2) was bound "to make reasonable and prudent efpreme Court, Appellate Division, Second De- that "if the jury finds that he did not make partment. November 22, 1907. Appeal from reasonable or prudent effort to see for himself Trial Term, Orange County. Action by Hattie that the crossing was safe and listened for the J. Eager, as administratrix of the estate of Wil-train, then the plaintiff cannot recover"; and liam C. Eager, deceased, against the Lehigh & (3) that "there is no evidence that Mr. Eager Hudson River Railway Company. From a who was the deceased) "did look or listen before judgment for plaintiff for $21,468.39, entered he crossed the track." The learned counsel aftupon a jury's verdict, defendant appeals. Af- erwards asked the court to charge that “as it firmed. John J. Beattie, for appellant. Abram appears there is no evidence that Mr. Eager did F. Servin, for respondent. either look or listen in this case, as the court has charged, that the plaintiff cannot recover." The request was refused, and the defendant excepted. The jury were thus left to understand that although it were the fact as the court charged that there was no evidence that the deceased looked, nevertheless that did not matter if he could not have seen the train if he had looked from his place in the wagon, and that he was not obliged to get down or make any other effort to see; and also that even if the deceased did not listen at all the plaintiff could recover, for although they were charged that there was no evidence that he listened, they were left to say whether they would find for the plaintiff. It may be that even though no one testified that he saw the deceased listen, there may nevertheless have been evidence from all of the facts put together from which the jury could find that he did listen. But this was not explained to the jury; they were left to believe that failure to listen need not be regarded as contributory negligence. The tenor of the main charge and of the three requests charged and of the refusal to charge taken together, was that there could be a recovery although the deceased neither looked nor listened-the excuse taken for not looking being that he could not see if he had looked from his seat in the wagon, and no excuse being given for not listening. The judgment should be reversed on the law and the facts.

GAYNOR, J. (dissenting). The deceased was killed by a passenger express train going at its regular speed, viz., about 30 miles an hour, at a dangerous country railroad crossing. He and two others, one of whom was driving, were crossing the defendant's track in a wagon. The only question of the defendant's negligence submitted to the jury was whether warning was given by bell and whistle. It was claimed by the plaintiff and stated by the learned trial judge in his charge that owing to a rise of the ground, and then to buildings by the railroad track, the view of one riding along the highway by which they approached the crossing was cut off from the track from a point a considerable distance from the railroad track until you got up close thereto. There is evidence that this distance was as great as 200 yards. The case was one therefore where the rule of reasonable care by looking and listening of a person approaching the track to cross required a greater degree of care than if there had been no obstruction. What is reasonable care depends upon the particular case. What would be reasonable care in one case may not be reasonable care in another. The greater the danger the greater the care required to satisfy the rule of reasonable care, and as we go up the scale a case may be reached where nothing short of the highest degree of care would suffice. A railroad crossing may be so dangerous (and that may be this case) that a jury would be justified in finding as matter of fact that reasonable care required that a person about to go over it with a horse and wagon should first get down and go ahead on foot near to the track, or to or upon it, to see if a train be approaching. And if he cannot look up or down the track until he gets near to it, on account of obstructions, then he must look at the point where he can look. His duty to look cannot be dispensed with. If he cannot look until he gets 20 feet from the track, he must look then. The learned trial judge charged the jury in the main charge that it was the duty of the deceased to be alert "by looking and listening for the approach of a train," but that

EASTON et al., Respondent, v. NEW YORK STATE NAT. BANK AT ALBANY, Appellant. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) ACtion by William Easton and others against the New York State National Bank at Albany. No opinion. Interlocutory judgment affirmed, with costs, with leave to defendant to answer on pay. ment of costs of demurrer and of this appeal.

EASTON et al. v. NEW YORK STATE NAT. BANK AT ALBANY. (Supreme Court. Appellate Division, Third Department. Novem ber 27, 1907.) Action by William Easton and others against the New York State National Bank at Albany. No opinion. Motion denied